Mikhail Fedotov: “I would liken the law” On Mass Media “to a broken in many places and badly burnt banner on an undefeated barricade”
“Censorship of the mass media … as well as the imposition of a ban on the dissemination of messages and materials … is not allowed …” 30 years ago, on December 27, 1991, the Supreme Soviet of Russia adopted – and the President immediately signed – the law “On the Mass Media “. One of the authors of the law, ex-head of the HRC Mikhail Fedotov, tells in an interview with MK about how difficult the process of his birth was, what tests is being subjected to freedom of speech today.
Photo: Alexey Merinov
Fedotov Mikhail Alexandrovich, was born in 1949 in Moscow. In 1972 he graduated from the law faculty of Moscow State University. M.V. Lomonosov. In 1976-1990, he taught at the All-Union Correspondence Law Institute (now the OE Kutafin Moscow State Law University).
In September 1990, he was appointed Deputy Minister of Press and Information of Russia. From December 1992 to August 1993 – Minister of Press and Information of the Russian Federation. 1993-1998 – Permanent Representative of the Russian Federation to UNESCO. 2010–2019 – Chairman of the Council under the President of the Russian Federation for the Development of Civil Society and Human Rights, Advisor to the President of the Russian Federation.
From 1998 to the present – Secretary of the Union of Journalists of Russia. Doctor of Law, Honored Lawyer of Russia.
” With this project, you will be kicked out of your job at best, and jailed at worst. “
– Alive! For one simple reason: the dead no longer resist. And alive still resists. I would liken the Law on Mass Media to a broken banner in many places and a badly burnt banner on an undefeated barricade. This barricade is freedom of the media. No matter how they squeeze it, no matter how they try to cut it, it continues to resist.
– Resistance is expressed in the fact that there are different-minded media. All attempts to destroy free media only end in more and more of them. As with a puddle, which they try to trample with boots: it splashes, and many small puddles turn out.
– Let's say right away that the Russian Law on Mass Media is a direct descendant of the USSR Law “On the Press and Other Mass Media”. A descendant who has surpassed his parent. Well, the authors of both laws are the same. All the same “three heroes” or a company “for three”: Yuri Baturin, Mikhail Fedotov, Vladimir Entin. This was our personal initiative. And the reason, as often happens in our life, was the barbecue.
It was the spring of 1988. Yura Baturin and I decided to make a barbecue at the dacha. And while cutting firewood, I say: “Yura, have you heard that a plan of legislative work has recently been approved and there is a line like this:“ The USSR Law “On the Press and Other Mass Media”?
He says, “Yes, I know. Moreover, I even wrote a review of the official draft of this law ”. “Well, how,” I ask, “do you have an official project?” – “Nightmare!”. I say: “I see. Maybe we'll write our own project? ” He says: “Let's try!” project. My wife warned: “With this project, at best, you will be kicked out of your job, and at worst, they will be jailed.” But, thank God, neither one nor the other happened.
Two years later, on June 12, 1990, our project became the USSR Law “On the Press and Other Mass Media”. And after another one and a half, the law of the Russian Federation “On the Mass Media” was adopted.
Russian law, of course, is much more democratic than the union one. And it is much more technologically advanced. Allied was to a large extent a declaration. When it was adopted, the power of the Communist Party was still preserved in all its might. There were both the KGB and Glavlit, the main Soviet censorship agency.
Now there is none of this – neither the CPSU, nor the Glavlit, nor the Soviet Union. And the law “On Mass Media” exists. And I think this is a very important bridgehead that we must defend. As Yuri Baturin rightly noted, speaking at the HSE at a conference dedicated to the 30th anniversary of the law “On Mass Media”, freedom of the media is the most important freedom. If it is not there, then we will not even know about the infringement of other freedoms.
– In a sense, yes. I began to deal with this problem in my second year of the Faculty of Law of Moscow State University. Right from the middle of the second year I was kicked out of the day department for “standing near the building” of the Moscow City Court, where our fellow dissidents – Alik Ginzburg, Yuri Galansky, Alexei Dobrovolsky and Vera Lashkova were tried. It was the beginning of 1968.
I managed to get hooked on the evening department. But to study in the evening, you had to work. I was lucky: they hired me as a reporter for the information department in the newspaper Vechernyaya Moskva. Then I wrote a term paper on the topic: “Lenin on freedom of the press.” Then – “Lenin and the KPSS on freedom of the press”, then – “Actual problems of freedom of the press in the USSR.”
In 1976 I defended my Ph.D. thesis: “Freedom of the press – the constitutional right of Soviet citizens.” And in 1989 – his doctoral dissertation: “The Mass Media as an Institution of Socialist Democracy.” You can say that I am a singer of one song.
The interest of Baturin and Entin was also far from accidental. Both then worked at the Institute of State and Law. Yura dealt with, among other things, the history of tsarist censorship, Volodya specialized in legal regulation of the media in capitalist countries.
So the Law on Mass Media was written not by some profane, but by experts. We were – and still are – professionals in this area.
“We brought up to 50 brochures to the convention at one time”
– The miracle, firstly, was that such a law appeared for the first time in the history of Russia. Throughout our thousand-year history, there has been no law that would guarantee freedom of the media. I would not just proclaim – there were such declarations – but contained a mechanism for implementation: clearly explained how mass media are created, who journalists are, what their rights and obligations are, and so on.
It was also a miracle that the law was a draft written by three unknown jurists. Because the Central Committee of the CPSU prepared a completely different draft law of the USSR “On the press and other mass media”.
Another miracle is that we were able to publish our project as a separate brochure. We were lucky because it was at this time that Soviet publishing houses were allowed to publish books and brochures at the expense of the authors. Well, first of all, I meant literary works, of course. It never occurred to anyone that some crazy people would decide to publish the author's bill.
Glavlit was, of course, categorically against the publication of our project, but with the assistance of people who were good about our initiative – in particular, an assistant President of the USSR Shakhnazarov and Minister of Foreign Affairs of the USSR Shevardnadze – managed to ensure that the censorship surrendered.
We were allowed to publish a brochure with a circulation of five thousand copies. Then such a circulation seemed scanty. And, as I understand it, our opponents thought: “Well, okay. Let them amuse their pride. ”
And we were not going to amuse our pride. We had a different, very specific goal. Yura and I had passes to the First Congress of People's Deputies (held from May 25 to June 9, 1989 in the Kremlin Palace of Congresses. – “MK” ). It was forbidden to carry any briefcases or bags there, but no one was searched. Therefore, my wife sewed additional inner pockets into our jackets. We carried up to 50 brochures at a time. And they handed out, handed out …
However, at that time it was impossible to name our project unknown to anyone. It has already been printed by many youth newspapers. It all started in October 1988 – with the Estonian newspaper Spordileht, “Sports News”.
– Yes, in Estonian. Spordileht belonged to the Union of Journalists of the Estonian USSR, and with these guys I had good, friendly relations. They immediately agreed to publish our project, explaining that censorship in relation to publications in national languages is not so strict. And then the principle worked: that once Glavlit passed, other newspapers could easily reprint. Censorship permission was no longer required in this case.
– Quite right.
– We had many allies: Boris Yeltsin, Andrei Sakharov, Gennady Burbulis, Yuri Afanasyev, Mikhail Poltoranin … I name only those to whom we handed over our project from hand to hand. Nikolai Fedorov, whom we knew very well from graduate school, was appointed chairman of the working group on the law on the press. We were invited to join the working group – and things went well.
– The Union law passed with very great difficulties. In the working group, our opponents were representatives of the Central Committee of the CPSU, Glavlit, GLAVPUR (Main Political Directorate of the Soviet Army and the Navy of the USSR. – “MK” ), The KGB, the Ministry of Internal Affairs … All these were people for whom the word “democracy” was not, to put it mildly, unambiguously positive. Therefore, each position had to be defended with battle.
There were often situations when we got together, looked at the text that was discussed at the last meeting of the working group, and saw there norms that were not agreed upon. We say: “Wait a minute, we agreed on something else.” – “Oh yes? Well, it must have been confused by the typists. ” This is how we learned that “politically literate typists” were working behind our back.
And when the law passed the first reading, the deputies were given a different version altogether. It was pure forgery. The text repeated our project verbatim, with the exception of a few subtle amendments. But they changed the meaning of the bill 180 degrees.
I remember they asked me: “Does this project look like yours?” I replied: “Of course, like a dead person – to a living one.” For example, in our project it was said that the founders of the media, in addition to parties and public associations, can be “citizens of the USSR.” In the revised version, all the words were the same, but without the word “citizens.”
– No! There was a big scandal at the meeting of the Supreme Soviet. And as a result, the option was voted with a citizen as the founder of the media. There were many other intrigues, and petty scams, and funny stories … In fact, how this law was adopted is a good plot for a television series. And the fact that it all ended in the end with the victory of freedom over censorship was, of course, a real miracle.
Mikhail Fedotov, Vladimir Entin, Yuri Baturin, 1989. PHOTO: Journalist magazine, 1989, # 3
“When I rushed to the White House, half of the amendments had already been adopted”
– Yes, there were much fewer problems with him. We already had the “small land” we had conquered – the Union law. It was much easier to launch an offensive from this bridgehead. In addition, we wrote the Russian draft not on the balcony, but in my office at the Ministry of Press of Russia – I was then Deputy Minister.
That is, our initiative author's draft was almost official. No other simply existed. Therefore, we wrote it with great pleasure, realizing that we can count on the support of the parliament and the president.
The first reading of the law generally passed without a hitch, without a hitch. But when it was accepted in the second, final reading, problems still arose. The discussion was scheduled for December 19, at 4 pm. It was by this time that I planned to come to the White House for a plenary session of parliament.
However, Khasbulatov changed the agenda. Somewhere around noon, an alarmed Igor Eremin, chairman of the parliamentary committee on mass media, phoned me: “Come soon, there is a discussion of the draft law“ On mass media ”. I already spoke. We started voting on the amendments. ”
When I rushed to the White House, half of the amendments had already been adopted. And including very dangerous amendments. When the law passed through the parliamentary media committee, they were all rejected. And then suddenly they began to pass.
For example, the amendment introduced by the Prosecutor General Valentin Stepankov. According to our project, the journalist and the editorial office are obliged to keep the source of information secret – except for cases when the request to disclose the source came from the court. In the amendment, the court was supplemented by the prosecutor, the investigator and the person conducting the inquiry.
That is, the question was relegated practically to the level of a precinct. Imagine, a district police officer comes to the editorial office and says: “Well, quickly answer, where did you get this information from? Who gave it to you? ” Well, what then is the price of the secrecy of the source of information? A penny!
The second dangerous amendment concerned hidden audio and video recordings. We had an article that said under what conditions it is possible to distribute materials made with a hidden camera. There were certain requirements that had to be met.
But the deputy Viktor Veremchuk introduced an amendment, the meaning of which was reduced to the fact that the hidden recording is prohibited. Any. Video, audio, photo – you can't do anything. Forbidden – that's all. And this amendment also passed.
We, naturally, were outraged by these amendments. We published an open letter to the deputies and asked Yeltsin to veto the law. We were supported not only by the democratic community, but also by practically all our fellow journalists. It was that rare case when corporate solidarity worked.
Yeltsin then publicly stated that if the Supreme Soviet did not return the law to its original state, he would not sign it. Under this pressure, the Russian parliament returned to considering the law and removed these two amendments.
There were also amendments that were not dangerous, but rather stupid. For example, the one according to which erotic publications must be sold in sealed bags. This amendment was also adopted. But I managed to get the deputies to return to it and clarify: in transparent packages.
If it were not for the word “transparent”, a loophole would be created for fraudsters. You buy a Playboy magazine at a newsstand, get a sealed envelope, bring it home, open it, and there – the Pravda newspaper.
– Then there were also many guardians of morality. But society is diverse, people have different interests. Some people like Playboy magazine, some don't. If you don't like it, buy the Pravda newspaper and other publications. The choice should be free.
Parliament returned to discussing the media law on the last day of its autumn session, December 27, 1991. The agenda was huge, and the turn came to the law “On Mass Media” at about half past nine in the evening. The deputies were exhausted, everyone was in a suitcase New Year's mood … And this saved the freedom of the Russian press.
Mikhail Fedotov, Vladimir Entin, Yuri Baturin, 2019. A PHOTO from the personal archive of Mikhail Fedotov
“No one can be sure that they will not be recognized as a foreign agent”
– Let me remind you that, answering your first question, I compared the law “On Mass Media” with a flag pierced in several places. So, the rule about foreign agents is just one of these holes. Initially, there was nothing of the kind in the law. This amendment, which was introduced in 2017 and amended in 2019, shows that its authors were completely unaware of the law they amended.
– No, I have no information. But at our conference at the Higher School of Economics (dedicated to the anniversary of the law “On the Media.” >Generic concept here: “mass media”. Species – “foreign media”. What is “foreign media”? This is written in the law – however, it applies to print media. This is a periodical printed publication that is not registered in Russia and which is either financed from abroad, or the editorial office is located abroad.
Further: you take the concept of a foreign media and add a criterion there that allows you to single out from the whole multitude of foreign media those that we want to stigmatize. It is easy to do this, guided by Article 55 of the Law “On Mass Media”. It says here that if in some country discriminatory rules are applied against Russian journalists, then the Russian government has the right to impose retaliatory restrictions.
Let's remember how the history of foreign media agents began. It all started with the unfriendly actions of the American administration, which forced Russia Today to register as a foreign agent. In principle, in order to respond to this step, it was not even necessary to change the law “On Mass Media”. You could get off with a government decree or presidential decree.
And it was possible to make amendments and determine that a foreign media outlet will be recognized as performing the functions of a foreign agent if it is financed by a foreign state, on whose territory the Russian media are discriminated against.
That's all. It's very simple: they discriminate against the Russian media in the United States – we are retaliating against the American media funded from the state budget.
– No, this is the sphere of international relations. The principle of reciprocity is at work here. You expelled two diplomats from us – we expelled two diplomats from you. This principle has been established for millennia, no one has canceled it. You can use it, you can – not use it. Sometimes it is better not to use it. We can recall the story of Russian diplomats who were expelled from America by Obama. Putin reacted in a non-standard way: he invited the children of American diplomats to the Kremlin for the New Year tree. This is much more elegant than a mirrored answer.
– Yes, with the media it turned out not at all elegant. The norms on foreign media-foreign agents are vague, contradictory, legally illiterate. Among other things, the principle of administrative discretion applies here, that is, administrative discretion: whoever they want is recognized as a foreign media outlets performing the functions of a foreign agent. This is the very same legal uncertainty that has been repeatedly condemned by the Constitutional Court.
The muse of legislation requires mathematical precision and does not tolerate fuss. Here everything is subject to the logic of law. If you construct a rule from vague or inappropriate legal concepts, then it will not work properly. In this case, our entire institution of foreign agents – and even more so foreign media-foreign agents – is a legal gibberish.
I know how the head of state understands the task of this institution: to prevent foreign interference in internal affairs. But the execution turned out to be inadequate to the goal. As a result, no one can be sure that they will not be recognized by the foreign media performing the functions of a foreign agent. And this is lawlessness, arbitrariness.
– For, in my opinion, a whole year, if not more, these norms were applied adequately, as planned, in relation to the American media, financed from the state budget: Voice of America, Radio Liberty and all its projects … Everything is clear and logical here, including from the point of view of Article 55 of the Law on Mass Media. But then the dimensionlessness of the norm affected, and the circle of foreign media-foreign agents began to expand and expand … Why, where?
– Absurd, of course. Could it have been done normally, competently? Can. I have already named one of the options. It is also important to note that neither a legal entity nor an individual can be recognized as a foreign media-inotent, since the media, according to the law, is a form of periodic dissemination of mass information.
For example, Lev Ponomarev (recognized as a foreign media, acting as a foreign agent. – “MK” ) well, it cannot be a form of dissemination of mass information. He is an individual, he is a subject of law, and form is always an object. For a qualified lawyer, these are elementary things.
If all this is observed, you can make a completely worthy law. The same applies to the institution of NPOs performing the functions of a foreign agent. Here, too, everything can be done reasonably. Take the Civil Code – those rules that describe agency relationships, which define what an agent is, what a principal is. Link this with political activity – and you will get a completely operational concept in which there will be no uncertainty.
When individuals or organizations lobby for the interests of a foreign state, receiving monetary reward for this, they are certainly agents of this the state. And when, for example, an organization defends the rights of Russian prisoners who are beaten and raped in colonies, then, even if it receives foreign funding, what kind of a foreign agent is it?
Is it acting in the interests of a foreign power? No, she acts in the interests of the citizens of our country. Albeit with foreign money. Let's say thanks to those who give this money.
– Of course. Everything should be built in a single legal logic. And now all this is absolute legal nonsense.
Cover of the brochure with the text of the draft law, published by its authors in 1989.
“No country should be proud of the destruction of freedom of the media”
– A lot, that's right. But besides that, there is also preliminary censorship. For example, videos posted on YouTube video hosting are checked for copyright compliance, for compliance with community rules, that is, the internal rules of the Network. If the resource algorithm concludes that you have violated these rules, your video will be blocked.
I can tell you that I myself suffered from this. I wanted to post a video on my YouTube account of how the whole family bathed our newborn grandson. The first bath is a very important thing in the life of every person. But YouTube blocked this video.
– As they say, there are two big differences. A social network is not a newspaper, but a fence on which we hang our ads, posters, pictures, notes. Yes, the owner of the fence may require that they do not write on it with obscenities. But as for everything else, he cannot interfere. In any case, it shouldn't.
Answering your question, I will say that the concept of censorship, which is given in the Law on Mass Media, certainly needs to be adjusted. But I ask our deputies not to rush into this. I can guess how they will clarify. No, if so, then you better not.
– You know, here is the same story about which Lev Nikolaevich Tolstoy wrote in his novel “Anna Karenina”: “All happy families are alike, every unhappy family is unhappy in its own way.” All unhappy media are unhappy in their own way. Everyone has their own problems, their own Achilles' heels, their own scores with the authorities. I don't see any universal solution to this problem.
But the fact that the state is objectively interested in protecting independent media is quite obvious to me. Therefore, I would very much like the respected Roskomnadzor in his annual public reports to talk about how it protects freedom of the media in our country, how it defends the rights of journalists, how it helps independent media.
Today, to Unfortunately, nothing is written about it there. But the predecessor of Roskomnadzor was called the State Inspectorate for the Protection of Freedom of the Press and Mass Media.
– Well, if we allow our legislator to further worsen the law “On Mass Media”, he will do it. And if we force him to act in the opposite direction, then maybe we will succeed. In any case, I remember the behest of Bulat Shalvovich Okudzhava: “Do not give up your efforts, maestro.” I don’t know if we are a maestro or not, but we don’t give up our efforts.
I don’t remember the Turkmen law right away, but I remember the Belarusian one quite well: there are much fewer guarantees of freedom of the media than in the Russian one. Unfortunately, almost nothing is left of freedom of the media in Belarus. And it was destroyed, including on the basis of this law. Russian law is much more liberal.
– Yes, despite all the “holes”. By the way, I would like to recall the words of Putin, said by him in the mid-2000s. He then proudly said that the Russian law “On Mass Media” is considered one of the most liberal in the world. I would very much like our law to regain this status. To be proud of democratic institutions is a legitimate pride. No country should be proud of the destruction of freedom of the media, especially a country that calls itself in the Constitution a democratic rule-of-law state.