Counter-sanctions information and restriction of information dissemination in the context of sanctions pressure on the Russian Federation

Paschenko Il'ya Yurievich ORCID: 0000-0002-1445-2126 PhD in Law Adviser to the staff, Election Commission of the Krasnodar Territory 350000, Russia, Krasnodarskii krai, g. Krasnodar, ul. Gimnazicheskaya, 30, - ilpa@mail.ru Other publications by this author

With the adoption of Federal Law No. 326-FZ of July 14, 2022 "On Amendments to Certain Legislative Acts of the Russian Federation and on the Suspension of Certain Provisions of Legislative Acts of the Russian Federation", domestic regulation was supplemented with new concepts: counter-sanction information and the dissemination of counter-sanction information. It is noteworthy that this legislative act amended another regulatory act – Federal Law No. 46-FZ of March 8, 2022 "On Amendments to Certain Legislative Acts of the Russian Federation" (hereinafter – Federal Law No. 46-FZ). The concepts in question are included in Article 21.4 of Federal Law No. 46-FZ, which does not contain direct references to the texts of Federal Law No. 149-FZ of July 27, 2006 "On Information, Information Technologies and Information Protection" regulating the dissemination of information on the Internet, and the Law of the Russian Federation of December 27, 1991 No. 2124-1 "On Mass Media", regulating the dissemination of mass information. Federal Law No. 46-FZ indirectly expands information and legal regulation in the Russian Federation in the special political conditions of 2022.

         The norm on counter-sanctioning information is constructed unusually taking into account the legal technique traditionally used to develop prohibitions, prescriptions, permits within the framework of information and legal regulation, because in part it has a declarative character. It can be noted that it contains provisions that have not received a regulatory burden and reflect the political rather than legal nature of the relationship. In particular, the norm contains an indication of non-compliance with international law, actions of unfriendly states and other subjects of international relations, the introduction of a sanctions regime, the need to protect national interests, ensuring stability and security in the Russian Federation. Such a declaration reflects the circumstances and values that the legislator was guided by when creating the norm, but it is difficult to unambiguously assess their useful role in understanding the content of regulation. At the same time, declarations contribute to the understanding of the text of the normative legal act, convincing of the need for its implementation, and also contribute to the awareness of the reasons and goals of its adoption ^{[1, p. 188]}. Declarative norms are usually placed in the preamble of a legislative act. The placement of the declaration immediately before the definition not only partially complicates the perception of the content of regulation, but also may contradict the traditional logical rules for constructing the structure of the act and the norm.

         The definition of counter-sanction information formulated by the legislator allows for its broad interpretation. Counter–sanction information 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 introduction of foreign states, state associations, unions and (or) international organizations that commit unfriendly and contrary to international law actions in relation to the parties to such transactions. in relation to the Russian Federation, Russian legal entities and citizens of the Russian Federation, restrictive measures. In fact, by counter-sanction information, the legislator understands information about foreign trade activities in the field of international exchange of goods, information, works, services, intellectual property results and rights to them in order to meet the needs of the domestic market of the Russian Federation, as a result of disclosure of which there is a risk of unilateral sanctions by certain subjects of international relations. If we correlate this concept with the norm that legally defines the content of foreign economic activity in accordance with Article 1 of Federal Law No. 183-FZ of July 18, 1999 "On Export Control", then we can note not only a different order of arrangement of objects of special entrepreneurial activity, but also the absence of mention of investment and other activities in the definition of counter-sanction information, including production cooperation. Thus, it can be assumed that this information regime does not apply to a wide range of activities in the field of investment and a set of practical actions for their implementation.

The legislator characterizes the information that makes up the counter–sanction information - production, technical, economic, organizational and others. The unclosed list makes it possible to determine that it can be any information related to the implementation of foreign economic activity in the field of foreign trade in goods, works, services, information and (or) intellectual property. Such information cannot be distributed without the consent of the owner of the information both on the Internet and in the mass media. At the same time, the reference to the Internet and the media is not accidental, because they act, although key, but only additional "spaces" that carry the most obvious risks for possible and potential violation of the established restriction. The restriction should not be considered as a ban, it is only an obstacle that, if the conditions specified in the law are met, can be overcome – in particular, by obtaining written consent from the owner of the counter-sanction information.

The restriction of distribution by law is established in relation to an indefinite circle of persons, which implies obstacles not only when using the Internet and the media to transmit counter–sanctioning information, but also other means of communication (written, oral, etc.). Such information may cover not only existing legal relationships, but also suggest a connection with the future - in terms of planned to conclude transactions in respect of which negotiations are underway, i.e. information is exchanged. Accordingly, for such information, it is advisable to develop rules for ensuring confidentiality or non-disclosure of relations by the parties.

It is worth paying attention to the very construction of the article on the dissemination of information – the legislator establishes a restriction on the dissemination of counter-sanctioned information as a standard rule, considering it not as a factor in the formation of a special legal regime of information, but regulating the actual circumstances of the dissemination of special content information. The definition of counter-sanction information is followed only after indicating the possibility of dissemination.

In legal science, legal regimes of information are traditionally associated with the establishment of access to it. Taking into account the current regulation, the availability of access to information implies the possibility of obtaining and using it, leaving also opportunities for dissemination and transmission. At the same time, special legal regimes of information are characterized by features, including the need to ensure the protection and protection of information, the restriction of the free dissemination of information of certain content, the absence of time periods for actions, the existence of liability for violations and others ^{[2, p. 10]}. The attribution of counter-sanction information to information having a special legal regulation regime theoretically has grounds. The text of Federal Law No. 46-FZ in the part under consideration is not limited to declarative and definitive norms, indicating the condition for the dissemination of information. Thus, the law specifies: information that cannot be recognized as counter–sanctioned - information that constitutes a state and commercial secret, in respect of which limited access is established, mandatory for placement and use in information systems, mandatory for distribution; special entities for which written consent is not required; the requirement to notify persons that that the information is classified as counter-sanctioned in accordance with the current legislation; circumstances that terminate restrictions on the dissemination of counter-sanctioned information.

In meaning, the regime of counter-sanctioned information is close to the regimes of state and commercial secrets, but differs from them in the absence of requirements for compliance and ensuring the necessary procedure for protecting information. The similarity is formal, since foreign economic activity may well be correlated with the goals of protecting information, the dissemination of which may harm the security of the Russian Federation, or ensuring the confidentiality of information that allows you to increase income, avoid unjustified expenses, maintain a position in the market of goods, works, services or receive other commercial benefits to individual entrepreneurs or commercial organizations. The actual differentiation can be made depending on the actions of the owner of the information, who will determine the appropriate regulation or the most preferred mode. As well as the requirements regarding compliance with the trade secret regime for establishing the procedure for working with information, for the regime of counter-sanctioned information, it is advisable to fix the rules in local documents (relevant for a Russian legal entity). At the same time, the owner determines the specifics of working with such information independently, which will allow, in case of violation of the restrictions on its dissemination, to bring the perpetrators to justice.

When implementing the norms under consideration, it is necessary in practice to ensure a balance between the confidentiality of information and the freedom of its dissemination. It does not follow from the text of the legislative act which authorized state bodies are entrusted with the relevant powers. It can be assumed that they should be determined depending on which entity may have committed a violation and what requirements will be pursued by the holders of counter-sanction information. Despite the comprehensive regulation of relations developing in this area, the integrity and reasonableness of the actions of persons who have and have received access to counter-sanction information is of particular importance.

For violation of the regime of counter-sanction information, various responsibilities may occur. Administrative responsibility comes under Article 13.14 of the Administrative Code of the Russian Federation, which establishes sanctions for the disclosure of information with limited access. In addition, a participant in foreign economic activity whose rights may be violated by the dissemination of this information has the right to claim damages under civil law. To date, the practice of bringing to responsibility for violating the restrictions on the dissemination of counter-sanction information has not been formed.

There are practical risks that have arisen as a result of the appearance of a new kind of information in the legislation, which significantly complicate the process of protecting rights. Thus, it is significantly difficult in the Russian jurisdiction to carry out the activities of foreign copyright holders for the protection of intellectual property, since it is problematic to ensure that information is obtained by legal means due to existing restrictions. Editorial offices of mass media covering the economy and international trade may also face restrictions in their activities.

Another problem of interpretation of these norms is associated with an ambiguous understanding of the subject who consents to the dissemination of counter-sanction information. As a rule, many parties participate in foreign economic transactions. Such transactions can be complex in terms of composition and number of participants. Is it enough to obtain consent from one party, which is a Russian individual or legal entity – the question remains open, the answer to it is not contained in the current legislation. We believe that such consent will not be enough if negative consequences in the form of sanctions occur against other participants in foreign economic activity who are also Russian residents. In the scientific literature, one can find a position according to which the problem of determining the parties is significant, and prohibitions and restrictions on the dissemination of information do not contribute to the complete minimization of risks in the relationship under consideration ^{[3, p. 107]}.

The problems of applying these norms are related to the fact that it is sometimes difficult to establish a causal relationship between events explicitly - disclosure of information, attribution of information to counter–sanctions, the onset of consequences in the form of restrictive measures. At the same time, in the course of the dispute, it is necessary not only to recognize the information as counter-sanctioned (to justify the attribution to it), but also to establish, if there are no consequences at a certain point in time, that they could or could not occur (for example, in relation to planned transactions). In other words, a broad interpretation of the concept may lead to the fact that in some situations information may qualify as a counter–sanction, and in others it may not be such. In addition, it is virtually impossible to take into account the time factor in the actions of the parties – the unilateral introduction of restrictive measures by States, as practice shows, is often a lengthy process, without specifying specific information and the source of its dissemination when making such a decision. Therefore, it can be assumed that the norms on counter-sanctioning information are partly of a "preventive nature", warning individuals and legal entities against possible actions with information in the current political circumstances. Thus, by creating conditions for the protection of certain information, the legislator creates legal uncertainty for certain categories of persons engaged in information activities.

The freedom to search, receive, and disseminate information in a lawful manner and the activities of the mass media are often affected by modern sanctions restrictions ^{[4, p. 148]}. The domestic system of sanctions and counter-sanctions regulation began to be actively formed in 2022. The basic legislative act – Federal Law No. 281-FZ of December 30, 2006 "On special economic measures and coercive measures", as well as decrees of the President of the Russian Federation and orders of the Government of the Russian Federation do not contain mention of information (information, messages, data) in the context of measures taken by one state in response to the entailing negative consequences of the action another state, association, union or international organization. The exception is Federal Law No. 127-FZ of June 4, 2018 "On Measures to influence (counteract) unfriendly actions of the United States of America and other foreign States", which regulates the exchange of information between Russian and foreign credit organizations. This act regulates only the organizational aspects of information activities under the sanctions regime, but does not create conditions for the legal allocation of a new kind of information requiring special legal regulation. A similar conclusion is valid with respect to Federal Law No. 272-FZ of December 28, 2012 "On measures to influence persons involved in violations of fundamental human rights and freedoms, the rights and freedoms of Citizens of the Russian Federation" regarding the activities of owners of information resources on the Internet and mass media.

The conditions of sanctions pressure on the state are expected to lead to the fact that the volume of open, freely distributed and accessible to an indefinite circle of people information of particular importance for ensuring and protecting public interests due to its content is decreasing. An example of such actions is the Decree of the Government of the Russian Federation No. 351 dated March 12, 2022, according to which issuing organizations have the right not to disclose or partially disclose information about the issue of securities. This act was adopted in order to protect stock market participants in the face of sanctions pressure from foreign states and organizations. Thus, by limiting the dissemination of information, the interests of both issuers of securities and the state seeking to stabilize the financial and economic situation are ensured. At the same time, one should not forget that information openness is an important factor in the effectiveness of the development of various relations, and information restrictions can lead to inappropriate practices ^{[5, p. 114]}. Another example is the Decree of the Government of the Russian Federation No. 680 of May 28, 2019, according to which the antimonopoly authority has the right not to post information on the Internet about incoming petitions for approving transactions and other actions if a person is subject to restrictive measures of foreign states, or a credit institution is classified as authorized under the legislation on the state defense order.

It is obvious that the norms on counter-sanction information are aimed at protecting private and public interests in the context of sanctions pressure on the Russian Federation, although they do not exclude the occurrence of legal contradictions that will have to be resolved by judicial authorities in practice in the event of disputes. Regulation of certain information relations under sanctions has currently found meaningful reflection in the text of Federal Law No. 46-FZ, which looks like an adequate response to the challenges that force the legislator to look for ways to stabilize the economic situation within the state with legal instruments.

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