1. Introduction
Internet regulation is a constant battle between those who aspire to make the internet ‘a world where one could talk and do business without worrying about state intervention’,Footnote 1 and those who are in favour of complete regulation of the online domain, similar to, or even stricter than, that imposed on the traditional media, calling for licensing, supervision of content production and complete user de-anonymisation.Footnote 2
One of the Russian regulative efforts to control the ‘world of bits’ was Federal Law No 97-FZ (known as the Bloggers’ LawFootnote 3), passed in May 2014. Among other provisions, this law required compulsory registration of all popular bloggersFootnote 4 with the country's internet regulatory agency, Roskomnadzor, leading to disclosure of their real identities to the state authorities.
This article takes a case study approach to explore whether the Bloggers’ Law (in particular, its provisions on blogger de-anonymisation) has achieved its stated goals, especially given the fact that it was repealed within three and a half years of its introduction. The author assumes that concrete, context-dependent information is more valuable than a fruitless search for predictive theories and universals,Footnote 5 and hopes that his line of inquiry will be of use to policy makers globally.
The objective of this article is to discuss the topic of legislation in the internet domain and to present a specific piece of recently repealed Russian legislation aimed at ‘managing’ the internet by creating an obligation for popular bloggers to register with an internet supervisory agency. To this end, the author attempts to (i) analyse the context and the reasoning behind the introduction of the Bloggers’ Register; (ii) disentangle the relevant legal provisions; and (iii) assess their effectiveness, drawing conclusions based on developments during the period 2014–17. To set the stage, the author presents current views on the question of bloggers and online anonymity. In Part 3 the author describes the context within which the Bloggers’ Law was enacted, paying particular attention to Russia's ongoing battle with the threat of terrorism, sometimes genuine and sometimes invented or imagined, to its complex geopolitical situation following the annexation of Crimea, and to other relevant factors. Subsequently, the controversy surrounding the Bloggers’ Register is discussed, along with primary criticisms of the legislation behind it and the challenges of putting it into practice. Finally, before moving on to the conclusions, the article looks briefly at other internet-related legislation which entered into force in Russia after the enactment of the Bloggers’ Law, including the 2017 Federal Law, which replaces the Bloggers Law and prohibits the use of online anonymisers.
2. A Right to Anonymity on the Internet: A Brief Introduction to the Ongoing Dispute
In Russia, as well as in other Council of Europe Member States, freedom of expression online falls within the ambit of Article 10 of the European Convention on Human Rights,Footnote 6 which protects the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.Footnote 7 However, the freedom of speech protection offered by the Convention is not absolute, since this right often has to be reconciled with conflicting policy objectives, such as the fight against illegal or harmful content, and it may be subject to restrictions laid down in the same Convention article.
Overseas, in the United States the right to speak anonymously is also seen as ‘a shield from the tyranny of the majority’, which protects ‘unpopular individuals’ from retaliation at the hands of an intolerant society, as was eloquently stated by the US Supreme Court.Footnote 8 Offline, in the majority of democracies,Footnote 9 citizens enjoy at least a limited degree of anonymity, including expression in public places: no one has to show evidence of identity to police authorities as a pre-condition for participation in civil protests. De-anonymisation only occurs following allegedly unlawful behaviour that warrants the involvement of investigative authorities. The same logic applies to the protection of journalistic sources, a commonly accepted privilege designed to protect both the journalist and the source.Footnote 10
When it comes to the question of online anonymity in Europe, the European Commission's long-held view on this issue is that ‘the ability of governments and public authorities to restrict the rights of individuals … should be no greater on the internet than it is in the outside, off-line world’.Footnote 11
Among legal scholars and practitioners, the discussion over whether there is indeed a legal right to online anonymity is still inconclusive.Footnote 12 On the one hand, they tend to agree that the right to online anonymity can be construed as an important element of the right to freedom of expression. According to the 2015 Report of the Special Rapporteur, David Kaye, on the Promotion and Protection of the Right to Freedom of Opinion and Expression, ‘prohibition of anonymity online interferes with the right to freedom of expression’.Footnote 13 On the other hand, some commentators claim that the right to online anonymity has, thus far, enjoyed limited recognition under international law, and ‘cannot be concluded to constitute a legal right universally recognised around the globe’.Footnote 14 Yet another unresolved question is to what extent a right to online anonymity should be limited when it comes to prosecuting and punishing crimes.Footnote 15
One of the topical issues that, in principle, may warrant the limitation of anonymous expression online relates to national security concerns stemming from the increasing need for countries to protect themselves against a terroristFootnote 16 threat. In the recent words of Vĕra Jourová, European Union (EU) Commissioner for Justice, Consumers and Gender Equality, ‘the recent terror attacks have reminded us of the urgent need to address illegal online hate speech’.Footnote 17 The post-9/11 era ‘can be characterised by the desire and ability of governments to develop a global mass surveillance system, largely unseen and until recently unsuspected’, and ‘a common trend can be discerned whereby governments monitor the communications and online behaviour of the vast majority of ordinary citizens’.Footnote 18 Notwithstanding the aspirations of these regulators, anonymous users currently are common on the internet, and the default mode of communication online is anonymous or pseudonymous.Footnote 19
When it comes to curbing illegal behaviour in the digital world, there are two different perspectives as regards state cyber power: (i) a more liberal ‘free internet’ approach, in which proponents see the state as a mild regulator of the online domain; and (ii) a more restrictive ‘national cyber sovereignty’ approach, which accentuates the authority of states to strictly control the information that flows within their borders. Russia − together with like-minded states such as China and Iran – is a proponent of the second approach. These countries have repeatedly emphasised the point that information in all its forms is a weapon, and is employed most often by terrorists.Footnote 20 Essentially, the approach of these countries maintains and highlights the notion that information on the Web should be managed rather than free-flowing. In line with this perspective, they treat any information that challenges the ruling elites and the regime arrangements in the same way as they view online threats of terrorism.Footnote 21
3. The Russian Federation in the Early 2010s: The Context
There are several factors that can explain the peculiarities of the Russian approach towards lawmaking: namely, the country's
• unique periodically hostile relationship with Europe, in particular, and the West, in general;
• historically established tendency towards an authoritarian government, and the relative weakness of the rule of law inside the country;
• utmost desire to preserve the territorial integrity of Russia as the world's largest territorial state.Footnote 22
There exists, therefore, a distinctly Russian tradition of thought and argument in relation to human rights that can be traced back to the imperial and Soviet roots of the Russian Federation, and to the long history of serfdom in pre-Soviet Russia.Footnote 23 All of the above contributed to the considerable difficulties with the gestation, development and functioning of civil society institutions.Footnote 24 In addition, Russian political elites (and, by proxy, programme documents, such as the National Security StrategyFootnote 25) tend increasingly to refer to traditional Russian spiritual-moral values in need of protection from the influence of foreign values, which might spread through information campaigns and foreign culture.Footnote 26
To complicate this intractable combination of paternalism and etatism, the concept of counter-terrorism resonates widely across Russian political discourse. With the complex ethnicFootnote 27 and religiousFootnote 28 composition of the Northern Caucasus region, along with its unique historical record,Footnote 29 the grounds for violent behaviour and increasing levels of hate speech, both online and offline, tend to expand. In the post-2000 Putin era, it has also been seen that the development of the situation in the North Caucasus and the public concern around it was aggravated by the Russian involvement in Syria – a new reality that has certainly played a role in shaping and unfolding further the counter-terrorism agenda.Footnote 30 As previously mentioned, terrorism is often cited by legislators as a reason for limiting the scope of human rights protection, and for digressing from the highest freedom of expression standards.
The annexationFootnote 31 of Crimea in 2014 further intensified the domestic situation. Combined with an imminent − either genuine or declared − terrorist threat, all of the above factors may be conducive to the Russian authorities constantly searching for ways to ensure that criticism of the regime does not become too vocal. Obviously, the present counter-terrorism discourse is not Russia's first attempt to grapple with freedom of expression. It appears that the policy of limiting online speech is a logical extension of other typical limitations on speech in Russia in the country's recent history.Footnote 32
In the international arena, Russian views on the nature of the internet were manifested in the draft of the International Code of Conduct for Information Security.Footnote 33 This document has been criticised for being ‘a fundamental challenge to the flourishing of global thought and discourse through the Internet, as well as to the established framework of international human rights law’.Footnote 34 Domestically, these views are put forward in the 2016 Doctrine of Information Security of the Russian Federation,Footnote 35 which calls not only for ‘protecting the sovereignty of the Russian Federation in information space through nationally owned and independent policy to pursue its national interests in the information sphere’ but also for ‘developing a national system of the Russian Internet segment management’. This approach of ‘managing the internet’ is supported vocally by the ruling elites in the media. After all, Russian President Vladimir Putin branded the internet network a ‘CIA project’.Footnote 36 In turn, one of the authors of the highly contentious, recently adopted law package to increase state powers onlineFootnote 37 – Russian parliamentarian Irina Yarovaya – stated that the internet undermines the idea of sovereignty, encroaches on internal sovereign interests and destroys national security.Footnote 38
These internal and external manifestations of Russia's intention to control the flow of information on the internet occurred simultaneously with the ‘colour revolutions’ in the neighbouring states:Footnote 39 namely, revolutions during which civil society actions were largely coordinated on the internet.Footnote 40 It should be further noted that the 2011–12 protests in Russia, the largest demonstrations of opposition during the Putin era, also had a sizeable social networking component.Footnote 41 All of these events correlated with the steady deterioration in Russia's internet freedom, captured in the decreasing rating by Freedom House.Footnote 42
One significant legislative initiative worthy of mention is Federal Law No 398-FZ,Footnote 43 which came into force in 2013. It allowed the state internet regulatory agency, Roskomnadzor,Footnote 44 to block − with immediate effect, without warning, and without a court decision – websites that disseminated statements calling for riots or containing other ‘extremist’ information. An assessment by state authorities is enough to block a website if certain content is seen to be ‘calling for riots or containing extremist information’, as defined by the 2002 Federal Law No 144-FZ ‘On Combating Extremist Activity’.Footnote 45 The arbitrary choice of blocking measures can be used to silence the voices of the opposition, especially by applying indiscriminately the definition of ‘extremist’ information. It is just one of the shortcomings of the above-mentioned Federal Law, which was criticised for its lack of precision by, among others,Footnote 46 the Venice Commission.Footnote 47 In particular, the Commission held:
The Extremism Law, on account of its broad and imprecise wording, particularly insofar as the ‘basic notions’ defined by the Law – such as the definition of ‘extremism’, ‘extremist actions’, ‘extremist organisations’ or ‘extremist materials’ – are concerned, gives too wide discretion in its interpretation and application, thus leading to arbitrariness … . The activities defined by the Law as extremist and enabling the authorities to issue preventive and corrective measures do not all contain an element of violence and are not all defined with sufficient precision to allow an individual to regulate his or her conduct or the activities of an organisation so as to avoid the application of such measures.
Similar concerns about the vague and open-ended definition of ‘extremist activity’ were voiced by the UN Human Rights Committee, which noted that the law could be used arbitrarily in the absence of clear and precise criteria on how to classify materials as ‘extremist’.Footnote 48 As a general remark, to make the definition of ‘extremism’ more precise, the legislator should link it to a means rather than simply focus on ‘goals’, departing from the emphasis inherent in such a term on the nature of opinions and beliefs. Instead, a clear connection should be made with the threat of, incitement to, or use of violence.Footnote 49 Ostensibly, the fact that over the last few years in Russia ‘thousands of sites have been blocked by mistake’Footnote 50 testifies to an obvious lack of professionalism on the part of those managing the blocking mechanism online.
It is difficult to determine the nature of the genuine driving force behind all these precautions. The legislative package in question can be seen through two different lenses. Through one, the authorities in Putin's Russia are frank and sincere fighters against terrorism and extremism. Through the other, the Russian Federation is drifting politically towards an authoritarian state in which anti-terrorism concerns are a smokescreen used by politicians to gain legitimacy, and their aim is to further reduce freedom of expression in order to fortify their subservient political system.Footnote 51
4. The Bloggers’ Law: Main Provisions and Criticisms
Dated 5 May 2014, less than two months after the annexation of Crimea by the Russian Federation, Federal Law No 97-FZFootnote 52 came into being. This new law required, among other things, all bloggers with more than 3,000 visits a day to register with Roskomnadzor, disclosing their real identity and leading to their inclusion in the Bloggers’ Register. Such bloggers were required to follow the same rules as journalists working in conventional state-registered mass media (described below), and to publish their real surname, initials, and contact information on their blog. The lawmaking efforts behind the introduction of the Bloggers’ Register were particularly hasty – the relevant changes were introduced into the draft law in mid-April 2014.Footnote 53
The creation of the register pre-emptively took away a degree of freedom from online bloggers to save the investigative authorities time and effort.Footnote 54 Otherwise, these authorities would face the prospect of having to deploy extra resources on de-anonymisation efforts to track bloggers who were disseminating allegedly illegal content.Footnote 55 Other restrictions placed on popular bloggers included journalistic obligations to (i) verify information before publishing it; (ii) abstain from releasing reports containing slander, hate speech, extremist calls, or other prohibited information such as advice regarding suicide; (c) abstain from using obscene language; and (d) follow electoral agitation guidelines.
Non-compliance with the Bloggers Law was punishable by substantial administrative fines (of up to USD14,000 at the time the law was passed).Footnote 56 The law also placed internet service providers (ISPs) under an obligation to store the data, correspondence and content of the hosted blogs for six months, and to provide upon request such information to the investigative authorities. The constraints and responsibilities introduced by the law were deemed ‘burdensome’ by the UN Human Rights Committee; it noted that this law appeared to be incompatible with the International Covenant on Civil and Political Rights, as the necessity for the imposed restrictions and the proportionality of the response appeared not to meet the strict requirements laid down in the Covenant.Footnote 57
A circle of bloggers affected by this law was, in principle, significant. In 2014, LiveInternet web counter estimated there were some 500 independent Russian bloggers with an audience in excess of 3,000 unique daily visitors. As far as the social networks were concerned, the LiveInternet owner, German Klimenko,Footnote 58 shared with the RBC news agency that, in his opinion, about 1,500 Russian-speaking Facebook users had audiences of 3,000 readers or more.Footnote 59 All of these influential internet personalities fell under the scrutiny of the law. While at face value the bloggers’ new obligations may have appeared as improvements regarding the balance between freedom of expression and other fundamental rights, the reliance of the legislation on vaguely defined concepts such as ‘extremism’ (see the criticisms above) and ‘obscene language’ made it overly interpretative. Other criticisms of this law can be summarised in the following three points.
First, the law made anonymous and pseudonymous blogging − an activity which, for many reasons, is popular online − an impossible undertaking in Russia. As long as there is even a remote possibility that a blogger's daily audience will exceed 3,000, that blogger is under an obligation to register and to provide real-world contact details online. It should be stressed that pseudonymous blogging should not be seen as a tool employed solely by marginalised elements of society who are afraid of disclosing their identity for fear of persecution.Footnote 60 It is also, for example, a tool used by those members of academia who do not want their blogging activities to affect their academic standing.Footnote 61
Second, an accurate assessment of the number of visitors was obviously a weak point in the law. Its definition of a popular blogger was based on the total number of instances of ‘access’ to his or her web page. This counting technique was not based on the concepts common among professionals in the field of web analytics, such as ‘page views’, ‘unique visitors’, and ‘visits/sessions’,Footnote 62 and immediately sparked the debate on the methodology for counting the instances of user access.Footnote 63 Adherence to an established counting method could have prevented this problem. Regardless of the methodology, the figure could also easily have been inflated by counting (a) visits from search engine bots; (b) repeat visits from the same users; and (c) DDoS attacks on blogs (the latter, incidentally, being an easy way of framing a user for non-registration with Roskomnadzor). Furthermore, as a result of the law entering into force, some Russian platforms, in the hope of protecting popular bloggers from the authorities’ scrutiny, stopped providing detailed, openly accessible statistics for popular blogs. For instance, the LiveJournal platform hid the exact number of followers if it exceeded 2,500,Footnote 64 while the search engine Yandex closed its bloggers’ ranking service altogether.Footnote 65
Third, with regard to verification of information, the law placed bloggers under the same restrictions as officially employed journalists, but without providing the same level of protection. Primarily, such protection concerns what is termed ‘journalist's privilege’: that is, protection from being compelled to disclose confidential information or sources.Footnote 66 Moreover, collective blogs remained in an unregulated ‘grey area’, and the cross-jurisdictional issues presented by the borderless nature of the internet were not addressed in the law.
Initially, the officials responded to the criticism by pointing out that there is ‘no need’ to think about the law from the bloggers’ perspective, since the goal of the law is to fight terrorism and not to support bloggers (in the words of Maksim Ksenzov, Deputy Head of Roskomnadzor).Footnote 67 One year after the enactment of the Blogger's Law, the growth of the Bloggers’ Register was very slow, with roughly only two to three new records per day being added.Footnote 68 This number seems incredibly low for a country with 84 million internet users.Footnote 69 An opposition website claimed that several entries on the register were added based on fake applications, without any fact-checking on the part of Roskomnadzor.Footnote 70 Another credibility problem involved a large number of entries on the register, which pertained to absolutely harmless bloggers, such as fictitious sci-fi characters or reality TV starsFootnote 71 – certainly, it is unclear how a register of such personalities could help to combat terrorism.
Nevertheless, one of the effects of the law that is hard to measure might have been the increase in the already existingFootnote 72 self-censorship efforts on the part of the bloggers whose names appeared on the Register. Self-censorship is a type of restriction on free-speech or, in other words, ‘opinion expression inhibition’,Footnote 73 which is not carried out by official actors but applied by a person or entity responsible for producing a piece of creative expression, in order to prevent any perceived negative reaction to that expression. Fear of government retribution, although outranked by social factors, is one of the reasons people choose not to express what is on their mind.Footnote 74 Online, self-censorship may manifest itself in the following activities: voluntary removal of old posts; switching of social media accounts to protected or invisible mode; deletion of social media accounts; or making strong public displays of loyalty to the regime.Footnote 75 While it is almost impossible to quantify the effects of self-censorship, the mere existence of the public list of popular internet personalities, administered by and conceived in the interests of a governmental body, should have led to a certain number of such personalities thinking twice before making public their criticism of the government. There are no reported instances of blogs being blocked in accordance with the mechanism introduced by the Bloggers’ Law, nor were any financial sanctions imposed on the perpetrators under this law.Footnote 76 At the same time, information from Roskomnadzor's internal meeting indicates that only 3 per cent of infractions recorded by the agency up to 2015 qualified as related to extremism. Meanwhile, twice as many were connected with drug offences, and 30 times as many dealt with something as trivial as online profanity.Footnote 77 All of the above could point to the fact that the law had only a signalling function; it may have been conceived as an experiment to gauge public reaction to its introduction and, as the first stepping stone, attempt to govern a previously unregulated field.Footnote 78
5. Repealing the Law and Turning the Page
The Bloggers’ Law was not the only piece of legislation enacted to ensure the status quo so that no one would ‘rock the boat’Footnote 79 in the Russian sector of the internet. It was joined in 2014 by Federal Law No 242-FZ,Footnote 80 which prescribed that databases containing personal data of Russian citizens be stored on servers that are physically located in the territory of the Russian Federation. Finally, in 2016 Federal Law No 374-FZ and No 375-FZ,Footnote 81 known also as Yarovaya's Laws, further increased the state's surveillance discretion in the domain of digital communications, mandating blanket data storage by ISPs and allowing investigative authorities to access such data retroactively, thereby legally obliging ISPs to help the investigative authorities in deciphering users’ encrypted messages.Footnote 82
Strong evidence that by 2017 Roskomnadzor itself was not overly enthusiastic about the Bloggers’ Law lies in the words of Roskomnadzor's Head, Aleksandr Zharov,Footnote 83 concerning the effectiveness of the law: ‘The Internet is evolving rapidly; at the same time laws are not always as effective as they were at the time of their adoption, and law enforcement proves that laws require correction’.
Nonetheless, the Bloggers’ Law had obviously seen problematic implementation effects, which ultimately caused the Russian authorities to change tactics with regard to online de-anonymisation.Footnote 84 It seemed that the information deemed unpalatable by the Russian regime had not been disseminated by popular bloggers. Instead, it had been spread by websites that were already blacklisted by Roskomnadzor for perceived infringements.Footnote 85 Because of the proliferation of anonymiser software in Russia, such websites are still easily accessible for technically literate internet users. Thus, in the author's view, the approach was radically changed: instead of pre-emptively de-anonymising popular bloggers, the authorities are attempting to make everyone's anonymity harder to attain.
In particular, a new law was signed at the end of July 2017, prohibiting anonymiser usage and superseding Federal Law No 97-FZ. This new piece of legislation prohibits the use of software and hardware solutions that facilitate access to internet resources blocked in Russia. The providers of such solutions will have to either cooperate voluntarily with Roskomnadzor, or face the prospect of an unconditional prohibition on Russian territory. It should also be mentioned that Federal Law No 276-FZFootnote 86 only specifies the obligations of anonymiser service providers and website owners; ordinary internet users would not, in principle, be prosecuted for using anonymisers.Footnote 87 At the same time, Federal Law No 241-FZFootnote 88 was introduced, prohibiting companies registered in Russia as ‘organisers of information dissemination’, including online messaging applications, from allowing unidentified users. The introduction of this law eventually led to a full-scale war with Telegram, one of the most popular online messengers in Russia.Footnote 89
There is a clear difference between the legislation that introduced the Bloggers Register and the superseding legislative efforts. While the former required actions on the part of the end users of the internet, the latter focused on regulating ISPs and web platforms and services. In addition to the already mentioned lack of effectiveness of the former approach, there are additional multifold reasons to explain this paradigm shift. At present, there are a few thousand truly popular bloggers in Russia, while there are only dozens or a few hundred ISPs,Footnote 90 and even fewer online platforms with a truly wide reach in Russia.Footnote 91 Moreover, Russian ISPs necessarily possess legal personalities and addresses in the world of bits, as opposed to bloggers, who still have the option of blogging anonymously and of hopping from platform to platform in the world of numbers, with the aim of avoiding the long arm of the law. Popular platforms and services may not all be incorporated within Russian jurisdiction, but − as seen in the case of LinkedIn, the world's largest business- and employment-oriented social network − the Russian authorities have ways of forcing such platforms and services out of the country.Footnote 92 In the end, it appears that Russian legislators, after an experimental attempt to regulate the internet at the user level, became convinced that, given the present state of technology, it would be – at least for now − more practical to follow the path of least resistance, and to regulate the online intermediaries.Footnote 93
6. Conclusions
In the Russian Federation, as well as in other Council of Europe Member States, freedom of expression online falls within the ambit of Article 10 of the European Convention on Human Rights, which protects the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
However, it poses a problem in balancing national security with online freedom of expression and privacy, which remains largely unresolved and requires urgent resolution. The authorities in the Russian Federation are in a constant search for ways to mitigate the threat of terrorism, stemming in particular from unchecked, hate-inducing online expression.
This article presented a case study to demonstrate that hasty moves in the domain of online regulation do not always achieve their stated policy objectives. Specifically, the Russian authorities’ search for an easy fix led to the adoption of Federal Law No 97-FZ (the Bloggers Law) in May 2014, and it faced considerable criticism. Although legislators and academics are still engaged in a heated discussion on whether a legal right to online anonymity exists, the law made anonymous blogging an impossible undertaking in Russia. However, instead of tangible results on the counter-terrorism battlefield, the attempt provided no substantial evidence to indicate that the Bloggers’ Register was a successful initiative. In fact, by 2017 the legislative initiatives concerning the registration of bloggers were being criticised even by the head of Roskomnadzor, the Russian internet regulatory agency.
It is unclear, however, whether the lesson has been learnt. Although, in the meantime, the Bloggers’ Law has been repealed, new legislation came into effect in 2017, prohibiting online anonymisation on several levels.
