Russian Bans on ‘Fake News’ about the war in Ukraine: Conditional truth and unconditional loyalty

The rights to freedom of expression and mass communication are formally proclaimed by Article 29 of the 1993 Russian Constitution, alongside a ban on censorship.¹ This article provides guarantees nearly identical to those established in the key international human rights treaties, viewing freedom of expression as the right to seek, receive, and impart information and ideas without undue government interference through any media, regardless of frontiers. Although Russia ceased to be a party to the 1950 European Convention on Human Rights (ECHR) during the invasion of Ukraine (Council of Europe, 2022), as a UN member, it has committed to adhering to its commitments regarding human rights. Freedom of expression protects many types of lies (Richter, 2018) but is not absolute. Its protection must be carefully balanced against other rights and legitimate interests. As follows from the international and the Russian Constitutional² standards, each limitation, including that to restrict false information, must be strictly necessary and proportionate and provided for by laws that establish clear parameters for constraints.

This article applies the approach suggested or used in the legal studies of various fake news laws and their applications to identify the effects on free speech, which are often controversial (see Lim and Bradshaw, 2023; Helm and Nasu, 2021; Baade, 2018; Richter, 2018). It determines the Russian legal parameters to identify ‘fake news’ and uses them for coding to further study Russian judicial interpretations and evaluate the outcomes.

Then, a historical approach is applied to interpret the Russia's legal instruments through the lenses of the Soviet context to contextualise the modern legal constructs and explore the patterns. Its design represents the study of primary and secondary sources forming Soviet law and policy framework to limit harmful falsities, including Marxist–Leninist programme policy documents and their interpretations.

Legal DA is an innovative but fast-growing direction of research. Law ‘is a fertile field for discourse analysis’ because it is highly verbal (Shuy, 2001: 437). DA has been productively used to study formal written texts, such as laws and judgements, especially those regulating defamation and hate speech (Shuy, 2001).

This article applies DA to study the dominant narrative about fake news produced by Russian law and its application in the wartime. While legal research applies to critically evaluate the use of legal notions and principles to solve social problems as legal issues, legal discourse analysis goes beyond the domain of law. It considers laws and judicial interpretations as social constructs to extract a broad range of ideas and values to address legal matters through language use ‘in context’ (Scholz, 2019: 7). DA views language as a means of power, in the hands of the powerful, through the mechanisms of coercion (Foucault, 2000, 1977), including through criminal and administrative frameworks interpreted by judges, who bring their knowledge and beliefs into legal discourses. Because dominant discourses constitute a fundamental understanding of perceived reality, as Foucault (1980) noted, the article aims to reveal what reality is constructed by Russian authorities and how.

This article examines what language is used and how it is used in Russian court decisions to ‘imperceptibly convey ideas and values’ (Hansen and Machin, 2013: 117) about fake news related to the war, its disseminators and other actors. It analyses the use of linguistic tools and expressive means in Russian judicial reasoning. The notion of intertextuality developed by Fairclough (2010) is used to look for indirect references to the Soviet context.

The key parameter for the court analysis is statements falsity (‘c’) or ‘non-correspondence with the reality’, as the Russian law frames it. In this way, courts have constructed conditional truth, as I define it, conditioning the falsity of expressions about the war on what Russian state authorities, predominantly the Ministry of Defence, have officially reported. In other words, conditional truth is an instrument to benchmark the accuracy of public statements on matters of public interest to official government reports. Due to the importance of the ‘falsity’ for courts, this parameter is central for our legal and discourse analyses. As the study identified, the dominant narrative on the war in Ukraine mainly emerged in judicial interpretations of the laws and facts of cases to construct conditional truth.

Conditional truth may seem to resemble the approach provided in some international legal standards on media freedom and the provisions of the Russian Act on Mass Media adopted in 1991 to liberate post-Soviet Russian journalism. However, their approach significantly differs from the modern Russian one, despite the common assumption that official reports should be accurate due to the special duties and responsibilities of public officials to maintain public awareness. Nonetheless, the European Court of Human Rights, an international judiciary interpreting the ECHR, and Article 57, clauses 3–4 of the Russian Act on Mass Media provide journalists with a privilege, instead of a duty, not to verify the information from official reports before using it in journalistic publications.¹² Thus, similarly to conditional truth, these standards encourage the media to take government information as accurate by default. Still, they are defensive of journalists, who may publish official reports without fearing legal consequences but are not obliged to disseminate it as true without prior verification.

Conditional truth established by the Russian fake news laws does exactly the opposite by obliging everyone, including the media, to rely on state information. It rejects the accuracy of any statements diverging from official reports, qualifying such deviations as ‘non-correspondence with the reality’, ‘fake news’, fiction or nonsense. While some deviations may indeed represent harmful lies, others could be genuinely true but must be banned due to their presumed falsity. Consequently, conditional truth leads to extremely controversial results.

The study uses DA to reveal how courts applied conditional truth to narrate the war as a ‘special military operation’. As a Russian court explained hearing one of the cases,¹³ the real war is something different from what is happening in Ukraine, as it is a 'conflict, including between states, when one political subject tries to force another to give up freedom, rights to property, resources, territory, etc.’¹⁴ Moreover, ‘this special operation doesn’t have this goal and is conducted exceptionally in compliance with universal principles and international law to protect Russia's national interests and its nationals and support peace and safety’.¹⁵ Although Russian courts sometimes mention the UN legal standards, their justifications of Russia's ‘compliance with international law’ are based on the so-called ‘Treaties on the Accession’ to Russia of the territories that the UN views as Ukrainian (OHCHR, 2023: 12). Courts link this ‘fact’ of the accession constructed by the Treaties to their vision of the ‘special operation’ on ‘peace-making’¹⁶ to instigate a perception that the ‘operation’ aims to ensure Russia's territorial integrity, public safety and human rights and fully complies with the constitutional and international and legal obligations. While courts mean the obligations in the modern Russian ‘Treaties’, rather than the UN law, the readers are rarely informed about that explicitly.

The courts construct a narrative that the ‘operation’ is conducted under ‘the Supreme Commander's [Putin's] leadership’ to help some ‘voluntary units’ to ‘protect ethnic Russians’ within and ‘outside Russia’ at the borders to ‘de-Nazify and demilitarise Ukraine’.¹⁷ These intertextual references to ‘denazification’ allude to a strategic patriotic narrative about the USSR's victory in the Great Patriotic War against Nazi Germany in 1941–1945, also known as the Eastern Front of WWII and is an important element of the version of reality portrayed by the courts. As Khaldarova and Pantti (2016) showed, this narrative has been consistently exploited by the state Russian media to manipulate a Russian audience's feelings and attach a ‘fascist’ label to the Ukrainian government and Ukrainian soldiers. Although this narrative is not explicitly articulated by courts, it is implied. More direct insights may be produced by adopting the same methodology to study the practice on Article 354.1 of the Criminal Code. Adopted soon after the annexation of Crimea in 2014, it bans the public dissemination of deliberate falsities about the USSR's activities during WWII and Great Patriotic War veterans.¹⁸

Consistent with the judicial dominant narrative, around 41% of the decisions made under the Russian fake news law that have been studied are held to deny and ban the allegations of crimes or immoral acts supposedly committed by the Russian army on Ukrainian territory. Courts often reject statements about atrocities and alleged crimes in Mariupol,¹⁹ Bucha²⁰ and other Ukrainian places,²¹ merely asserting, without appropriate technical evidence, that the photo and video evidence is faked. Courts sometimes insufficiently analyse the statements to make general assertations that publications, for example, had ‘fictitious (fake) information about crimes, shelling of residential buildings of Ukrainian cities and killing of civilians allegedly committed’²² by the Russian army in Ukraine and the ‘Donetsk and Luhansk People's Republics’, which the courts do not consider to be part of Ukrainian territory in line with the vision of the international law in the judicial ‘reality’.

Public expressions of Russian troops do not receive any special consideration or protection, although Russian law might seem attentive to their concerns because it specifically protects the army's reputation. According to the legal study, around 26% of the dataset's cases prohibit ‘fake news’ about the Russian army's casualties, losses or difficulties, including the complaints raised by current and former military service personnel just because this information mismatches the official reports. Courts have applied conditional truth to ban photos, videos and text messages sent by Russian soldiers from the battlefield that could be invoked as evidence of difficulties and violations and illustrate damage.²³ Conditional truth applies to prohibit the publication of statistics²⁴ or the structure of the casualties in the Russian army, including those reported by independent Russian media.²⁵ DA lets us move outside the legal analysis and see how courts use language to hinder the deviations from the lawful version of ‘reality’, for instance, by defining the divergent statistics as ‘exaggerations’²⁶ because the Russian Ministry of Defence provided lower numbers.

The legal analysis was more focused on what was categorised as fake news. This includes the statements that, apart from contract military service personnel, Russia sent conscript soldiers to the war²⁷ and offered criminals military contracts in exchange for their release from prison.²⁸ Courts also banned allegations about missing soldiers who could have been killed, noting that their personal data were faked.²⁹ Consequently, conditional truth creates a misrepresentation that the war will not cause both peoples, the Ukrainians and the Russians, to make large sacrifices. This and other misrepresentations, alongside the restrictions to challenge them, may affect the public vision and support of the war and government in Russia because of the narrow limits to freely exercise the right to seek, receive and impart information, which is an inherent part of the Russian Constitutional and international guarantees for freedom of expression.

Conditional truth also applies to opinions. Courts have systemically misinterpreted opinions as the assertions of facts to match the legal parameter ‘b’ and, consequently, condition their veracity on Russian state information.³⁰ The examples of ‘false statements of facts’ include opinions that the war is ‘illegal’ and not ‘ours’³¹; that Russian military criminals ‘should be isolated’³²; that Russia needs a referendum to recall President Putin³³; and that as the Russian army ‘cannot defend itself’, how can it ‘defend anyone else?’³⁴ as well as concerns about economic consequences for Russia, including sanctions and inflation.³⁵ Courts viewed these items are assertions of false facts because these statements misrepresented the ‘special operation’ and the army, disinforming the public. In these cases, courts have ruled out the application of the Constitutional Article 29 that does not protect false allegations of facts but guarantees the right to freely express opinions in Russia in line with the international vision of this element of freedom of expression.

A similar rationale has been used to apply a discreditation ban on symbolic speech, including anti-war protests. Courts often rule that anti-war protesters not only discredit the Russian army and government but also disinform society as the ‘special military operation’ is not a war.³⁶ Still, courts banned anti-war posters merely as ‘discreditation’ without explicitly noting they are false. ‘Discreditation’ also covers satire and cartoons, for example, those drawing parallels between Putin with Hitler or the main Russian military symbol ‘Z’ with the swastika used by the Nazi Party to suggest that they convey the same values.³⁷ Courts made no comments on the falsity of these comparisons, but it was implied: the courts could argue that the statements might confuse the audience by providing the incorrect comparisons of two completely different parties and persons from different historical periods. Nonetheless, it should be made clear that, from the Russian courts’ perspective, the ‘truth’ does not require the statements to be the most exact display of the reality. As the truth is ‘conditional’, it must comply with the dominant narrative constructed by courts based on official information.

Conditional truth applies to limit media freedom, too. In the cases against Russian editorial offices and journalists, courts have made nearly no attempts to examine their information sources or verification process. They have not tried to balance the freedom of mass communication guaranteed in Constitutional Article 29 and the 1991 Act on Russian Mass Media against other rights and interests supposedly threatened by journalistic ‘fake news’ publications. Courts refer to the Article and Act only to reiterate the increased responsibility of journalists for false and illegal publications, as in the case of the now defunct Novaya Gazeta.³⁸ Courts consistently use conditional truth against publications reposting or referring to foreign media stories,³⁹ especially Ukrainian, but also Czech, Polish and British, sometimes emphasising that they lie. By virtue of the power of formal judicial discourse, this generalisation becomes an implied social commitment to abstain from reading and trusting foreign media information, including on the war, which may affect its public perception and support among Russians.

Courts presume that all the defendants knew their statements were false but disseminated them nonetheless, presenting the falsities as true facts (legal parameters ‘d’, ‘e’ and ‘f’), on the premise that the defendants had been properly informed by Russian officials through the mainstream media,⁴⁰ particularly national TV,⁴¹ which is totally state-controlled. The defendants were sometimes questioned as to whether they had watched TV⁴² or heard what Russian officials reported in advance of them spreading ‘lies’. The explications made by applying DA to the language used to restate the judicial dialogues with defendants have exposed the evidence of the courts’ condescending and contemptuous tone, implying the presumption of guilt. Courts use expressive language to reinforce the pressure directed to the defendants to confess and to the readers to feel deterrence. In this sense, Russian criminal judgements are almost performative acts conducted by judges to support their version of reality. As a result of the pressure, many defendants pleaded guilty immediately⁴³; some, however, still noted they neither meant to cause any harm nor wanted to discredit anyone. Nonetheless, apart from rejecting to admit guilty pleas as a mitigating factor, courts also always identify a threat of harm (parameter ‘g’) in fake news publications to various degrees. Sometimes, courts use exorbitant hyperboles to describe the potential outcome of fake news, particularly with anti-war calls, as violent, uncontrolled chaos accompanied by social panic.⁴⁴ Thus, courts imply that accepting conditional truth is a prudent duty for Russians; it is socially desirable as a guarantor for peace within the country.

In all criminal and some administrative cases studied, courts have assumed that the defendants maliciously disseminated fake news because they intended to mislead the Russian population due to their ‘political’, ‘ideological’ or ‘national hatred’ of the Russian army's representatives and its Supreme Commander Putin. Developing the meaning of hatred, courts characterise Putin and the army representatives as Russian nationals who protect all Russians against foreign Nazis. Therefore, disseminating ‘fake news’ to present Putin and the army ‘in a negative light’ or criticising their ‘activities’ in Ukraine implies for courts alienation from or even betrayal of a Russian nation. In an appeal case of Altan Ochirov,⁴⁵ a former employee of the Elista city council, the court described Russian army soldiers as those ‘identifying themselves with a Russian nation and supporting the Russian government’⁴⁶; yet, Ochirov had published fake news to mispresent them as Russia's ‘enemies’ driven by his ‘political hatred, expressed in contemptuous, unfriendly and aggressive attitude towards the current Russian executive and legislative authorities and the Armed Forces’, ‘which led to undermining their [the army] authority and discreditation at the public’.⁴⁷ As seen, courts discursively connect conditional truth with unconditional loyalty to the Russian army and authorities through their belongingness to the Russian nation, implying that such loyalty is required from all Russians and even the slightest criticism cannot be tolerated.

The idea of ‘haters’ is central to the courts’ perception of ‘reality’. Courts develop the theme of hatred by framing fake news as a dangerous information ‘warfare’ used by ‘unfriendly foreign states’ implying that they are in fact Russia's enemies because they ‘intentionally’ produce ‘fake’ news to discredit the government and army.⁴⁸ Courts have weaponised foreign news media outlets, viewing them as platforms to disseminate warfare; the ‘haters’ are not the originators of the content but have been influenced by it. Courts discursively warns the public, meticulously edifying that fake news disseminated by the haters may be extremely hazardous. In the case of a schoolteacher, G.,⁴⁹ a court ruled that she ‘maliciously conveyed’ fake news to her pupils, driven by hatred of the Russian army and Putin produced by her consistent consumption of foreign news media, including German ZDF, Deutsche Welle, ARD Tagesschau; BBC News as well as Czech and other foreign media. As the court added, she read Western media while knowing that ‘cyberwar was unleashed against Russia’.⁵⁰

In the case of the journalist and popular blogger Veronika Belotserkovskaya,⁵¹ the court noted that she published fake news while ‘outside Russia’ and was exposed to foreign media information. Therefore, she was driven by her political hatred while ‘experiencing personal animosity and hostility’ toward the representatives of the highest state authorities [implying Putin] and Russian nationals, including the Armed Forces, whose views on conducting Russia's foreign policy are ‘alien to her [.]’.⁵² In other words, a natural result of living abroad and/or consuming foreign news media information is alienation from the Russian nation that logically resulted in her hatred toward the army and authorities; therefore, she published fake news to discredit them and mislead the audience. The haters’ alienation explains a lack of unconditional loyalty and the conditional truth in their publications and justifies their isolation, including imprisonments and bans on travelling abroad and accessing the Internet. Many offenders are given probation terms to ‘correct’ their knowledge and opinions.