As Hillebrandt explains in his blog post, the ‘public sphere’ in Europe – that transnational artefact that EU institutions are willing into existence – is increasingly subject to Foreign Information Manipulation and Interference (FIMI). That FIMI matters is clear to everyone: elections results are altered because of it (or anyways because of its alleged presence). There is no doubt that the perceived threat of disinformation is here to stay, and nobody should be surprised that the EU tries to fight against it. In addition to legislation or other regulatory tools aimed directly at the tech giants, it does so also through restrictive measures.
One provision (Article 4g of Decision 2014/512/CFSP, as updated) of these restrictive measures bans the broadcasting of any content of some blacklisted media outlets. This post briefly discusses two things: what the EU is protecting, and how. These questions have a strong legal dimension (the answer may be found in the legal provisions of the restrictive measures, because the EU is based on the rule of law, so everything it does must be authorised by, and comply with, its legal system), but their interest goes much beyond the legal technicalities.
First, what exactly is the EU protecting? Provocatively, I referred to the European ‘public sphere’ (a notion of Habermasian memory: the realm of social life where public opinion can be formed) as a somewhat artificial construct. Rather than a given area with clear historical roots or a self-evident social fact, it exists as something that institutions continuously assemble. This is, I think, what the Council did when it adopted the sanctions mentioned in the previous paragraph, justifying them on the grounds of the protection of the ‘EU’s public order and security, the pursuit of peaceful international relations, and the maintenance of international security’. It has been noted that nowhere in the EU Treaties does the phrase “EU’s public order” appear. Article 21(2) TEU lists among the EU’s foreign policy objectives to ‘safeguard its values, fundamental interests, security, independence and integrity’; and in various places (Articles 36, 52, 72, etc) the TFEU mentions ‘public security’ or ‘law and order’ of the Member States as ground for derogating from EU law. Once the EU starts censoring outlets in the name of protecting the Union’s public order, which presumably operate in the public sphere, it is admitting that the sphere must be curated, and that need, presumably, also entails that this public sphere exists. Where the process of curation begins and that of creation ends, is not clear. There is nothing bad about building an audience, a public, and therefore a public sphere. But can that be done top down? Arguably, EU institutions think so.
Second, how is the EU protecting it? Aside from the capillary sanctioning of individuals, the EU has targeted Russian-affiliated media outlets, at least since the beginning of the 2022 invasion of Ukraine. Currently, there are 32 companies whose content is censored in the EU. Contrary to what happens for individuals or companies listed on other grounds, the EU does not state a distinct reason whereby each company is blacklisted. Instead, reference is to be had to the general statement contained in the preamble of Decision (CFSP) 2022/351 of 1 March 2022, where it is explained that Russia ‘has engaged in a systematic, international campaign of media manipulation and distortion of facts’, and that ‘In order to justify and support its aggression against Ukraine, the Russian Federation has engaged in continuous and concerted propaganda actions targeted at civil society in the Union and neighbouring countries’. Since some media outlets have been instrumental to that campaign, the Union argues in the same preamble, those medias’ actions ‘constitute a significant and direct threat to the Union’s public order and security’ and their broadcasting activities must be suspended. The case T-125/22 RT France v Council, decided by the General Court of the EU, is the first time the Decision was challenged and where the General Court provided guidance on the justification. After examining three days of broadcasting, the General Court concluded that RT France ‘was broadcasting programmes containing a reading of the events relating to the military aggression against Ukraine that favoured that aggression and the narrative of those events made by the political leaders of the Russian Federation’ (para 186). This blanket ban on broadcasting of some outlets (which covers any of their content: from weather forecasts to programmes dedicated to the war in Ukraine) is a first for the EU. Some considerations may apply to the listed media outlets. From the judgment in RT France v Council (para 173), it would seem that a company that can prove it is independent from the Russian government may have a stronger case against the sanctions. In the same judgment, the General Court also held that these restrictions are a proportionate interference with the right to free speech, compatible with the EU Charter of fundamental rights. As a matter of principle, therefore, they are lawful. Even though the sanctions are a form of censorship that restricts freedom of speech, it is justified in light of the exceptional context of a war in the EU’s neighbourhood, of the particular impact of audiovisual content, of the fact that RT France was engaged in propaganda, that the censorship itself meets objectives of general interest (those mentioned in the paragraph above), and that it is temporary and reversible (see para 154 et seq).
If we now zoom in on who is targeted, for some of these media outlets, the link with the Kremlin is formally there: the Russian government pays the entirety of their budget (e.g., RT France). In other cases, a formal link cannot be established. For example, among the companies target by the EU, Tsargrad is entirely owned by the Russian media mogul Malofeev, himself targeted by EU sanctions since 2014, who has no formal links to the Russian government. In some instances, the sanctioned media outlet is an EU-based company (incorporated in an EU Member State, such as RT France), in other cases it is based in Russia (such as Rossiiskaja Gazeta), in other cases again it is in a third country (RT Balkan, based in Serbia), and in other cases it is a bit of a combination (such as Voice of Europe originally in the Netherlands, then re-established in Prague, and currently, after the EU sanctions and its shutdown, established in Kazakhstan). Again, it is not the seat of incorporation that makes a difference: just the content considered undesirable by the Council.
Perhaps, in some of these cases, the proportionality of the limitation of free speech is easier to defend than in others. Katehon, another outlet owned by Malofeev, operates as a website that shares far-right Orthodox eschatology and anti-Western conspiracy theories that could appear very far from our sensibility – but which have profound roots and resonance in Russian political thought. Could those in the EU afford to live without access to such content? Probably, yes: all that is needed if one is dying to read what Russian ultra-conservative thinkers want to share, after all, is a VPN. Even then, it should be remembered, one could not repost or re-blog such content in the EU, as we know from the judgment in C-67/25 Traugott Ickeroth. In Traugott, the Court interpreted the scope of the media ban as to cover anyone who reposts content (any content, no matter how little or negligible) by banned media outlets; it is irrelevant whether the person who reposts is acting in a personal capacity or does so for a professional or commercial activity. All things considered, it is possible to see how one could take the view that the damage, in a specific case of censorship of one outlet of sub-liminal significance, is minimal.
Conceptually, things are more complicated when one considers that the EU is censoring companies for content that it deems problematic. The risk here is, at best, hypocrisy. The EU refers, in its sanctions, to Russian violations of international law: does the EU consider equally problematic a media outlet that shares positive views about a war by a third country, such as Israel, in circumstances where the International Court of Justice has ordered to stop it and found that it is ‘plausible’ that genocide is being committed in Gaza? Is international law relevant at all in the discussion of the legality of these measures under EU law? At worst, there is arbitrariness. As I wrote in my comment to the judgment in RT France, we risk to recognise ‘free speech for the propaganda we like, but not for the propaganda we do not like’.
Posted by Luigi Lonardo (University of Luxembourg)
This post is the second one in a series entitled ‘The EU’s restrictive measures against Russian media outlets and ‘foreign information manipulation and interference’: Issues of effectiveness, legality and principle’. The Introduction and other blog pieces can be found by clicking on this link.