How the law on counter-sanctions information has changed the work of journalists

The authorities allowed businesses not to disclose information that could bring companies under sanctionsforeign states. RBC asked lawyers

In mid-July, amendments to the law “On Amendments to Certain Legislative Acts of the Russian Federation” came into force. In particular, they introduced and specified the concept of "counter-sanction information". This is information “of any nature about transactions made or planned to be made by Russian individuals and (or) legal entities participating in foreign trade activities”, the dissemination of which “may entail the imposition of sanctions against the parties to such transactions” by foreign states.

The amendments directly affect the work of the media: it is now possible to publish such information only with the written consent of the “participant in foreign trade activities who has made or is planning to make a deal.”

RBC asked experts to explain how the law will affect business journalism, what can be considered counter-sanctioned information, and how to avoid abuse of the right by companies.

What the law changes in the work of the media

Violation of the law implies the same responsibility as the disclosure of information with restricted access: for individuals it is a fine of 5-10 thousand rubles, for officials - 40-50 thousand rubles. or disqualification for up to three years, for legal entities - 100-200 thousand rubles. Maxim Topilin, chairman of the State Duma Committee on Economic Policy for United RUSSIA, explained the need for such restrictions by saying that the work that the government is doing to find new suppliers and parallel imports "requires a certain silence."

The opportunity to hold the media accountable under the new law has already been allowed by the Russian Association of Trading Companies and Manufacturers of Electrical Household and Computer Equipment, which unites, among other things, M.Video-Eldorado, DNS, Yandex.Market and Marvel Distribution. According to the association, it is undesirable for journalists to write about deliveries of APPLE, Samsung products and other equipment from the sanctions list to Russia.

Companies have been able to close access to data, the disclosure of which could increase sanctions pressure, since 2019 after the release of the relevant government decree, says Sofya Moreeva, HEAD of the department of jurisprudence and practical jurisprudence of the RANEPA ION. Previously, there were initiatives to criminalize the dissemination of information that can now be classified as counter-sanctions: the wording of the amendments to the Criminal Code of 2018 provided for liability of up to ten years in prison for the dissemination of information that led or could lead to the imposition of sanctions, and the draft law 2019 provided for up to five years in prison for disseminating information in the media that contributed to the imposition of sanctions, she lists.

In addition, the expert draws attention, Art. 275 of the Criminal Code on treason contains the wording "assistance to a foreign state in activities directed against the security of Russia", the interpretation of which does not exclude liability for the transfer of information that may contribute to the imposition of sanctions.

In these cases, the responsibility for determining whether the disseminated information poses a threat to national economic security or not actually lies with the editorial offices of the media, Moreeva notes: “The law on counter-sanctions information rather formalizes the rules of the game. If the economic entity contacted by the journalists does not warn against the publication, legal liability will not arise. This reduces the risks of a business journalist.”

Limiting the dissemination of data that can be used to impose sanctions is aimed at combating “sanctions espionage” — the search for companies that have decided to maintain relations with Russian partners, explains Alexander Daniltsev, DIRECTOR of the Trade Policy Institute at the Higher School of Economics. In such a situation, it is in the general interest, including the interests of the media, to formalize the restrictions at the level of federal law. “This will limit the space for manipulation at the level of by-laws or documents of commercial companies,” Daniltsev said.

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What information can companies classify as counter-sanctioned?

This is any information related to planned or completed foreign trade transactions, says Mikhail Fedotov, a lawyer, one of the authors of the first edition of the law "On Mass Media", a former adviser to the President of Russia (until October 2019). He believes that the legal regime of counter-sanctions information is close to the regime of trade secrets.

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“This is information, the dissemination of which may lead to the adoption of restrictive measures by foreign states or international organizations for the parties to the transaction,” explains Fedotov. “But if the dissemination of information resulted in sanctions, then there is a causal relationship between the first and second. And if the negative consequences did not follow, then how to prove that they could not come?

Qualifying signs to identify counter-sanctions information are spelled out in the law, but the term is formulated too broadly, says Roman Lukyanov, managing partner at the law firm Semenov & Pevzner. In his opinion, the wording “the dissemination of which may entail the introduction of restrictive measures against the parties to such transactions” suggests that under different circumstances, the same information can be qualified in one case as counter-sanction, and in another - not.

Counter-sanctions information is not presented in the federal law in the form of a specific list, but is indicated by categories, Kira Vinokurova, special adviser on sanctions issues at Pen & Paper, points out. “The wording used makes it possible to declare almost any information counter-sanctioned. I believe that this was done intentionally by the legislator, so that the widest possible discretion of law enforcement officers would become a frightening “red rag” for any potential violator, ”she notes.

The authors of the norm introduced two criteria for classifying information as counter-sanctions information, Fedor Kravchenko, head of the College of Media Lawyers, lists: “The first is clear: only information about foreign trade transactions can be recognized as such. The second is less specific: a clause stating that information constituting other types of secrets specially protected by law - commercial, state, etc. - is not counter-sanctioned information.

How does counter-sanction information differ from state and commercial secrets?

Data on foreign trade transactions can be both commercial and state secrets, so the line is purely formal, Kravchenko believes.

But unlike state and commercial secrets, the implementation of the counter-sanction regime does not require compliance with the procedure established by law: there are no rules for classifying, there is no need to put down special details on media (“state secret”, “commercial secret”), no special decision of the state body is required, lists lawyer Dmitry Korolev.

The line is determined by the relevant legislation, Vinokurov agrees. She recalls that the law "On State Secrets" contains a list of information in the field of military, foreign policy, economic, intelligence, counterintelligence and operational-investigative activities, the dissemination of which may harm security. Such data is protected by the state, access to it is limited and carried out on the basis of a special permit, and their dissemination in violation of the law provides for criminal liability. The Law "On Commercial Secrets" protects information of any nature that has commercial value due to being unknown to third parties. In practice, this means affixing the “trade secret” stamp on documents, a special regime for their storage and access to them,” Vinokurova notes.

How should companies notify the media that information is considered counter-sanctioned?

Vinokurova from Pen & Paper draws attention: there is no separate provision on how a company must inform the media that information is considered counter-sanctioned. “In my opinion, it is enough to state such an opinion in a free form. The company has a fairly wide discretion in this matter,” concludes the lawyer.

Korolev recommends that the media independently clarify in advance whether the company confirms that the disclosed information is not counter-sanctioned.

It is possible to publish counter-sanction information with the written consent of the transaction participant. What to do if one of the parties agrees, but the other does not?

If there are two parties in the transaction, one of which is a resident of Russia, and the other is not, then the consent is required only from the resident party, Lukyanov believes. “If in the transaction both parties are residents of Russia, then based on the wording of the document, there is no answer to this question. The literal interpretation of the law provides for obtaining the consent of any one party to the transaction - a resident of Russia. At the same time, it cannot be ruled out that the practice of applying this law will develop some more complex structures, RBC's interlocutor adds.

There is no certainty that the authors of the law took into account the possibility of concluding not only bilateral, but also multilateral foreign economic deals with several Russian participants, notes Kravchenko from the Collegium of Media Lawyers. “But the law clearly states that the permission of one, any Russian participant in such a transaction is sufficient. Nevertheless, I admit that later the courts will give a broad interpretation of the law and write in the motivation of their decisions that the journalists needed to obtain the consent of all Russian participants, ”Kravchenko argues.

Vinokurova has a different opinion: “The consent of one side cannot override the disagreement of the other. If at least one of the parties directly expressed the will not to disclose information, in the part in which the transaction concerns it, this information cannot be disclosed. It is allowed to publish material in which only one side of the transaction will be mentioned. But the value of such material is much lower.”

If the information is confirmed by third-party sources, and the company insists that this is counter-sanctions information, can the media publish such information with reference to their sources?

The question of the credibility of counter-sanctions information is not taken into account when determining whether the media should be responsible for its publication, Kravchenko warns. The dissemination of reliable information confirmed by independent sources will even more likely lead to liability than the publication of an obvious "duck". Only the participant in the foreign trade transaction and government agencies have the right to give permission for publication, the lawyer is categorical.

Vinokurova has the same opinion: the approach in this case is the same as when working with open sources. If this information is not from state registers, not distributed in accordance with the law and not published by the company on its website, in the media or on the Internet on its own, then such information cannot be distributed without the consent of the company, even if it is confirmed by third-party sources.

Fedotov, the author of the first edition of the law "On the Mass Media", recalls that the new law does not abolish the so-called relative privilege, which is established by Art. 57 of the law "On Mass Media". “If the media literally quotes a speech by, say, a mayor who divulges counter-sanctions information, then the editorial office is not responsible,” he says, noting that “an interview with an official is also a request for information, which is also possible orally.” The main thing is that the use of rights must be conscientious, concludes Fedotov.

Can a company retroactively declare that the information is considered counter-sanctioned?

If the company provided information without stipulating the inadmissibility of its disclosure, then the editors have the right to use it in good faith in their work, Fedotov is convinced.

If the consent to the dissemination of information was explicit and unconditional, then the law does not provide for the possibility of withdrawing it, confirms Lukyanov of Semenov & Pevzner, noting that the law does not have retrospective effect.

The amendments, Kravchenko notes, do not establish whether the consent of a participant in a foreign trade transaction to disseminate information is irrevocable: “Indirectly, we can conclude that if he once agreed to disseminate information, then this media, and all others, can publish such information without regard to their "counter-sanction".

Vinokurova disagrees: “As a general rule, any consent can be withdrawn. In this case, we recommend not to disseminate such information.”

But if the company independently provided the media with information without any mention of the counter-sanction regime, then it is unlikely that it will be able to insist on its application in the dispute, Korolev believes. According to the lawyer, an exception can be made for cases where the publication of data by the media actually led to the adoption of new restrictive measures. However, it will be very difficult to prove in COURT the connection between the first and second events, he admits.

Can a company declare information from open sources as counter-sanctions information?

If information is disseminated in news agencies or in other media that can be identified and prosecuted for violating the law, then it can be quoted, Fedotov is sure. “In all such cases, journalists are protected by Art. 57 of the law "On Mass Media". But if you are quoting a site that is not registered as a media outlet and cannot be held liable under Russian law, then Art. 57 doesn't work. However, by law, the information must be reliable. Therefore, if you write that certain information is reported on such and such a site, then there will be no violation of the law if this is true, ”he sums up.

Kravchenko warns that the law allows the free dissemination of previously published counter-sanction information if this publication is made by the participant in foreign trade activity or with his written consent. “But if, for example, there was a leak to foreign media without the permission of the party to the transaction, then Russian sites risk being punished for illegally reprinting this information, despite the futility of trying to keep this secret openly,” complains Kravchenko.

According to Vinokurova, everything depends on the open sources in which this information is distributed: “Maybe these are compromising resources or someone's private opinion. Then consent must be obtained. If these are state registries, the information is disseminated in accordance with the law, published by the company on its website, or distributed by the company in the media or the Internet on its own, then such information is not protected.”

Korolev is sure that not all media, even with the new law, will in each case apply to companies for permission to distribute certain information. Information will continue to enter the public space without the knowledge of companies. “At the same time, it will primarily depend on their opinion whether such information is counter-sanctioned or not,” the lawyer concluded.

Can a publication ban be challenged?

The law does not provide for mechanisms for contesting, Vinokurova states. But if the company responds to a media request that it refuses to provide information, the editorial office has the right to appeal the refusal in court, Fedotov adds. He admits that the fact that the information constitutes a legally protected secret serves as a legitimate basis for refusal: “But does countersanction information meet the notion of a legally protected secret? We will receive an exact answer only if the case reaches the Constitutional Court.”

“The most reasonable thing in such cases is to send an editorial request to the parties to the transaction in the hope that they will comply with the requirement of the Mass Media Law and provide information. But what if they send a ban on publishing information instead of information? Fedotov says. - On the one hand, the new law establishes that violation of restrictions on the dissemination of counter-sanctions information entails liability. On the other hand, imposing a ban on the publication of a particular material or its fragment falls under the definition of censorship. Lukyanov confirms that, theoretically, the media can go to court for violating the right to provide information, but this is “a potentially slow story with a difficult to predict result.”

Since the law does not establish requirements for the form of notification, any evidence, such as audio recordings of conversations, testimonies, etc., is allowed when considering disputes, says Kravchenko. “On the other hand, there is a general norm of civil law: transactions between legal entities must be made in writing. But it is not clear whether an e-mail from the press secretary is enough or a permission signed by the head is needed, ”stated the head of the Collegium of Media Lawyers.