The Supreme Court Plenum will finalize clarifications on violation of election campaign rules by bloggers

The plenum of the Supreme Court (SC) on Tuesday discussed and sent for revision clarifications on cases of offenses related to information support of elections. As follows from the document, such violations can be committed not only by the media, but also by “any persons” – for example, those who disseminated information on social networks. In particular, the court indicates that citizens, if they do not speak on behalf of a candidate, do not have the right to produce campaign materials at their own expense or “from improvised means.” But they can participate free of charge in the dissemination of propaganda made with money from the election fund.

Presenting the draft resolution, Supreme Court Judge Sergei Kuzmichev noted that at first Art. 5.5 of the Code of Administrative Offenses implied a violation of the order of information support for elections, primarily on the part of the media. But subsequently, the disposition of this norm was expanded, and now we are talking not only about those who cover elections on a professional basis: “other persons” who disseminate information in information and telecommunication networks can also be considered violators, and sanctions are provided not only for legal entities, but also for ordinary citizens. These changes were reflected in the explanations of the plenum of the Supreme Court, and a different interpretation would not meet the goals of the law, the judge emphasized.

According to him, the draft resolution was prepared with the participation of the Prosecutor General’s Office, the Ministry of Justice, the Ministry of Internal Affairs, Roskomnadzor and the Central Election Commission. The document includes 41 points that explain the subtleties of qualifying violations of election campaign rules, as well as certain procedural features of such cases. For example, the draft clarifies that evidence confirming violation of election laws on the Internet may include screenshots of a computer or mobile phone.

Among other things, the Supreme Court considered it necessary to clarify that the production of propaganda materials should be considered not only the order, but also the performance of the relevant work, and distribution should be considered actions aimed at obtaining (or the possibility of obtaining) such materials by an indefinite number of persons or their transfer. Both campaign participants (candidate, his representative or order executor) and any individual who campaigns independently on his own initiative – the owner of a website, page on social networks or Telegram channel. But in each specific case, the courts must establish the guilt of the person held accountable, the court insists. For example, the distribution of printed propaganda materials by a postman on behalf of an employer does not constitute an offense: in this case, the employer or another authorized person of the organization on whose behalf the materials were distributed may be held liable.

The Supreme Court reminds that citizens, if they do not speak on behalf of a candidate or party, do not have the right to conduct election campaigning using methods that require financial costs and are not paid for from the election fund. It follows from this that it will be considered a violation to create campaign materials yourself, using personal funds, including those made using computer technology or from improvised means. But gratuitous assistance to a candidate in distributing materials produced at the expense of the election fund is not prohibited.

The Supreme Court also clarifies that foreign agents do not have the right to produce campaign materials (except when they are candidates). And if a foreign agent is the customer of the campaign, then both he and the person who carried out the order should be held accountable. In cases where campaigning is carried out during a public event, which is organized in violation of the law, one should be punished under two administrative articles at once: for an unauthorized rally and for campaigning in prohibited places.

Electoral lawyer Roman Smirnov says that they have been trying to fine people for campaigning on social networks for a long time, but law enforcement practice in the regions is still very different: in some places bloggers are equated with the media, in others they are trying to qualify them as outdoor advertising. And conscientious lawyers have long ago begun to coordinate online campaigning with election commissions in the same way as printed materials. It is good that such clarifications have appeared, the expert believes, but it will take a long time for the judicial system to bring practice to a common denominator, because courts do not always take instructions literally. For example, the Supreme Court allowed the use of screenshots as evidence, but how the courts will perceive them is another question, says Mr. Smirnov. What if the site from which the photo was taken has disappeared? Or does the defendant claim that it was not his site or even a clone of the site? In any case, during the presidential campaign the differences will most likely be uncritical, but in the 2024 regional elections we should expect that the practice will be very, very non-standard, the lawyer is sure.

Anastasia Kornya