One of the features of a democracy is freedom of speech and media, but in the last few months Russian media outlets were closed and blocked online. Such censorship happened for example in the EU and in the UK.
An earlier example of such censorship happened with Iranian state-owned news network Press TV.
This censorship may be common for dictatorships, but I would not expect it in democracies.
How has such censorship been justified? Have any court decisions considered this censorship?
You linked the case of RT. The story of the RT ban is, in large parts, the story of RT DE, and the question if that is Russian or German news (or possibly Serbian, or Luxembourgian).
Even democracies have some licensing and oversight requirements for their domestic news media, e.g. clarity of ownership, visible separation of paid advertising and editorial content, the ability to file complaints, etc.
RT attempted to open a German language channel which pretended to be a German domestic media source, but without going through the necessary administrative steps of obtaining a German broadcast license.
After opening, it tried to obtain a Luxembourg broadcast license, Luxembourg being an EU member where German is one official language. This was deniend for RT DE. Nobody knows if a hypothetical RT Luxembourg would have gotten a license.
RT DE then obtained a Serbian broadcast license and argued that this allowed broadcasts into Germany under European treaties. German officials found that RT DE was not based in Serbia, but rather in Berlin. They interpret that the treaties do not apply if only the mailbox is in Serbia, and not the TV channel itself. RT obviously sees things differently, and Russia retaliated by banning DW (a radio and TV channel financed by the German government and operating from Germany) in Russia. (So much for RT DE being a Serbian TV channel ...)
I can't speak for the other cases, so this comment will focus on the decision against RT in the UK. The press release announcing it can be found here, and full ruling here.
The organisation making the decision, Ofcom, is the UK's regulatory body for (among other things) broadcasting. The usual term for such a body is 'quango' (though this acronym doesn't make sense imo). It's an arms length institution, so is - in a sense - independent of the political party in government. The government is heavily involved in appointing Ofcom's head, and Ofcom has become increasingly influential after being given regulatory powers over the BBC in recent years, so there is also a sense in which control of the general direction Ofcom has become more important for the Conservative government, even if its day-to-day decisions are seen to be more independent.
As regulator, Ofcom is established under a statutory framework; the relevant pieces of legislation seem to be the Broadcasting Acts of 1990 and 1996, and the Communications Act 2003.
According to Ofcom*, this legislation imposes general duties on them to ensure television is "high quality and calculated to appeal to a variety of tastes and interests" and maintain "a sufficient plurality of providers of different television and radio services". Their decisions are also required to be "transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed".
Moreover, not only does the legislation specifically mention freedom of expression as something Ofcom should guarantee, but like any government body, Ofcom are constrained by the European Convention on Human Rights (ECHR), which includes the following as Article 10:
- Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
As you can see, this right is less terse than the US's First Amendment, so it offers specific scope for ways a (more absolutist) freedom of expression can be legally violated - though note that such ways have to be "necessary in a democratic society", even if that's still somewhat subjective. (Another difference with the US, as I understand it, is ECHR rights are often balanced against each other and this can mean rulings against private parties to the benefit of another private party - for example, there's a right to privacy in the ECHR, which has angered the British tabloids because it has been ruled on certain occasions that it outweighs their Article 10 free speech rights to publish salacious stuff about various celebrities due to it being obtained in intrusive fashion).
But Ofcom are also required by law to have "standards that provide adequate protection to members of the public from the inclusion of offensive and harmful material" and draw up a Broadcasting Code to set out such standards, which broadcasters are required to follow.
And more particularly, Ofcom are in charge of licensing of broadcasters. They are obligated to revoke the broadcasting licence from anyone they find to be not "fit and proper", based on whether they can be a "responsible broadcaster".
Quoting Ofcom, they consider this to be a "major interference with freedom of expression, as it prevents the broadcaster from broadcasting and restricts the number of voices being heard and the range of programming available to audiences". As such, they set the threshold "high" for such a judgement.
In deciding the matter, Ofcom had to solicit representations from the licensee, in this case ANO TV-Novosti, RT's parent company. However, they complained they didn't have enough time to respond (originally two days, then extended to a week), and also that they lacked access to a lawyer in Britain (presumably because of sanctions?). However, Ofcom ultimately decided an expedited process was needed because of the "high public interest in the case and the exceptional circumstances of the case".
In making their decision, Ofcom do mention that in general they don't think it would be appropriate to censor State media of other countries with differing values to the UK, as that "would be a poorer outcome for UK audiences in light of our duties on plurality, diversity and freedom of expression".
But they go on to argue the situation with RT is outweighs this:
However, the Russian Federation’s current conduct in Ukraine is, in our view, exceptional. No other Ofcom broadcast licensee is financially dependent on a state whose head of state, President Putin, has been personally sanctioned by the UK for launching a war of aggression against a neighbouring state. The Editor in Chief of the service, Margarita Simonyan, is also personally subject to UK sanctions.
Also, as part of their Code, Ofcom require broadcasters to have regard for "due accuracy" and "due impartiality" during their programming. As such, Ofcom worried that RT wouldn't be able to meet these standards, given recent repressive laws against the press in Russia:
In particular, it is difficult to see how any news provider based in Russia could cover the events in Ukraine responsibly in circumstances where a law appears to prohibit with a potential criminal penalty of 15 years imprisonment, for example, the dissemination of information that civilians are being killed by Russian forces or that a war is going on. It is also difficult to see how a Russian state-funded news broadcaster could credibly avoid covering the events in Ukraine, or could expect to remain funded if it failed to convey the narrative that the Russian Federation seeks to impose on its own people and the rest of the world. We therefore are concerned that it is not possible to be satisfied that a news broadcaster based in Russia and which is currently subject to such a law, is fit and proper to hold an Ofcom licence, a condition of which requires its news to be duly accurate and duly impartial.
Ofcom then refer to a 2020 court judgement that found against RT after they had appealed a previous Ofcom decision against them that fined them £200,000. According to the Court, the original (White Paper) justification for Ofcom's remit on due impartiality was to "ensure that the broadcast media provide a counter-weight to other, often partial sources of news", thus leading to "properly informed democratic debate". And the court agreed with this reasoning in its judgement.** In other words, rightly or wrongly, the ultimate justification for broadcasting censorship is the protection of democracy itself.
The ruling then examines RT's previous history of breaking the Broadcasting Code. Between 2012 and 2017, Ofcom found several breaches of due accuracy and due impartiality, which led to several meetings between Ofcom and RT staff. There were then a further 8 breaches of due impartiality in 2018 (all related to Russian foreign policy, in one way or another); this is what was behind the fine mentioned above.
Reading between the lines, it sounds like Ofcom considered that a final warning:
In light of all the above, we consider that ANO TV Novosti should be particularly well-informed about how to preserve due impartiality on its service, and well aware of the importance we attach to the relevant rules of the Code.
However, they do then admit that "we have not had reason to investigate any of its programming, and have not found it in breach of the Code" for four years.
Even so, based on the new legal situation for journalists in Russia, Ofcom say they "cannot be confident that it will be able to abide by the due impartiality rules of the Code" and that based on past history, RT has "particular difficulty in complying with the due impartiality rules of the Code where they relate to matters of Russian foreign policy". As such, allowing them to be 'fit and proper' "risks undermining public confidence in the UK broadcasting regulatory regime as a whole, and undermining audiences’ trust in regulated broadcast news". They go on to point out that in the opening weeks of the war, they had opened 29 investigations into RT's coverage. Whilst none had been concluded by the time of the ruling, "the volume and potentially serious nature of the concerns raised within such a short period is deeply concerning" according to Ofcom.
Comment:
I find some of Ofcom's reasoning hand-wavey. To me, something being of high public interest and exceptional would entail a higher level of scrutiny with a longer time period to adjudicate. After all, the more important a decision, the more important it is to get it right! This applies even more if it's true RT didn't have access to a lawyer.
Furthermore, whilst it's obviously horrifying to see repressive laws against journalists in Russia, and concerning that RT had 29 cases open against them in such a short period, I do feel it violates a basic tenet of 'innocent until proven guilty' to basically say "we can't trust that you won't be bad so we'll ban you just in case".
Ultimately, it does seem like Ofcom have been somewhat led by the UK's foreign policy here, particularly when they point to Putin being sanctioned by the UK government. Logically, such a basis for a decision can only lead towards a double standard, rather than it being due to "exceptional" behaviour.
That said, I think it's quite likely that RT would be banned anyway if Ofcom had actually waited and ruled on those 29 cases or got evidence going forward of journalists being directly censored on the platform. I don't particularly trust their output, and generally speaking I do think the overall reason for having some sort of licensing regime does make sense. As in, even though I'm skeptical of State power on freedom of speech, it isn't completely one-dimensional and democracy does need protecting from Fox News-type outlets.
*Any detailed legal requirement I mention in this post will be from Ofcom in that ruling; I will assume for the sake of time that they've covered the legal situation accurately (note though, that it matches my own, lay, understanding so I don't expect anything here to be controversial).
**Apparently, this judgement has been appealed to the Supreme Court, though if that appeal is now void due to this decision or due to sanctions, I'm none the wiser.
Western democracies such as the United States do not have to justify censorship of foreign media outlets such as the RT, because, at least in the case of RT in the US, no censorship was imposed by the government. There is no evidence that RT was dropped by media companies because of government censorship. On the contrary, it was a business decision made by the individual media companies. The decision was caused by the war of aggression waged in Ukraine by the state sponsor of RT, the Russian Federation. The war crimes committed by Russia played a role in many companies pulling out of Russia, with the media companies dropping RT just some of the many, many examples.
REFERENCES:
The network was removed from the services offered by DirecTV on March 1, 2022, following Russia's invasion of Ukraine, with Ora Media pausing production on several shows it produced for RT America. Dish Network dropped the channel on March 4. [...]
A 2017 report by the United States Intelligence Community characterized RT as "the Kremlin's principal international propaganda outlet" and said that RT America had been set up as an autonomous nonprofit organization to avoid FARA's registration requirement.
Wikipedia: RT America: https://en.wikipedia.org/wiki/RT_America
You can still watch Russian-propaganda television if you really want to. RT, the English-language news network funded by the Kremlin and based in Moscow, was dropped from YouTube and American cable in early March, but still appears on an assortment of alternative video-hosting platforms, where reporting on the war is described as a “special operation chronicle.”
RT America, You Were Very Weird and Bad: https://www.theatlantic.com/technology/archive/2022/03/russia-today-propaganda-shut-down/627606/
I will try to answer this question from a general standpoint without addressing the two specific cases linked above. This is just my personal theory by the way.
I tend to think of international politics and politics in general from an evolutionary perspective. If countries in the West play by the democracy book so to speak and do not use all the arsenal that their enemy uses (in this case the banning of foreign media) then they simply are at an survival disadvantage. In the eyes of evolution there are no good or bad actions, there are simply actions that are useful or not so useful. Those that take actions that are more useful to their survival will pass on the traits that lead to these actions to the next generation.
Likewise, if Western democracies refuse to take certain advantageous actions due to a supposedly superior moral posture they will be in a decided disadvantaged position. Hence, in reality, they do use all the possible arsenal that they can use.
Seen from this particular perspective the basic difference of the democratic vs autocratic system would be that the latter is more honest, while the former has to involve a certain degree of hypocrisy, since some of its actions must necessarily counter some of its principles.
That is the underlying sentiment. As to how they justify it, it doesn't really matter so much, as it is just a reason post-factum.
Finally, it is worth adding that countries such as Russia and China claim to be democratic systems. Yet they (rather obviously) aren't. Some people will argue the same for the US. The democracy index is perhaps a good metric here.
