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misha says:
There is nothing like a "universal" theory of free speech in the world. There are vast differences in practice and theory even between the western democracies themselves. I already gave a lot of examples above and I stand by everything I wrote.
(Notice that I made all my arguments without insulting anyone, and those would would "refute" me seem incapable of doing so without hurling ever manner of personal insult against me.)
Every nation must try to resolve the tension that exists between freedom of speech and other valid social objectives, and each nation takes its own approach. Russia for her part is free to adapt any combination of these existing western approaches or to develop her own unique approach as suits her. The constant pedantic lectures from certain quarters in the west accomplishes nothing whatsoever except to irritate and enrage the Russian people and to incite them against the very ideas that they are espousing. It's hardly necessary to point out the absurdity of a situation where country such as Germany, which has such severe restrictions on free speech and such a strong defamation law (and such a spotty history on human rights issues in general) criticizes or lectures Russia on the subject of free speech.
I do not need to cite German law to show that there are interpretations of defamation in the West which differ radically from the American interpretation (though German law certainly is an excellent example). I could have just as easily used British defamation law as an example too.
British common law presumes in the plaintiff's favor that the words [in suit] are false, unless and until the defendant proves the contrary. Along with the burden of proving truth comes the threat of being assessed with aggravated damages if the defendant's attempts to prove truth fails.
What this means is that in UK defamation cases there is a presumption of guilt. The defendant has the burden of proving that whatever he said or published about the plaintiff was true; and if he cannot prove that it was true, then he is presumed to have defamed the plaintiff. This is an extremely onerous legal burden and this is why plaintiffs in defamation cases usually prefer to file such cases in the UK if it is at all possible. (Many American celebrities have filed defamation cases in the UK against multinational media companies when the companies had significant assets in the UK, even when such cases could never have been filed in US courts.)
Furthermore, public officials may sue for libel under Britain's strict liability system. For example, British politicians, unlike American politicians, can file libel suits against reporters, publishers, etc. for misinformation.
Basically, the ethical and legal standard in the UK is that you must be certain that the negative information you wish to publish about someone is actually true before you publish it. If you neglect to do this--and there is no requirement to prove actual malice--then you are liable for defamation of the plaintiff. There is no exemption for "satire" and there is no distinction between public officials and ordinary citizens.
British law is much older and more established than American law; it is based on Roman law. In fact British Common Law was enacted by the US wholesale in the aftermath of the American Revolution (to prevent anarchy in the new republic). Only slowly did the US begin to deviate from British law, and only after US courts began to notice contradictions between the new US constitution and British law. However that may be, the Yanks have no basis for insisting that the British must adapt US law for Britain, and they have still less basis for trying to shove their American interpretations down Russia's throat.
Certainly there is a role in Russia for applying criminal law in certain cases involving speech, such as bomb threats, threats to assassinate public officials (or to kill or harm anyone really) and so forth. These types of restrictions are found in the laws of all countries, even the US. Beyond that there is also a role for criminal prosecutions in "hate speech" cases. Such laws are widespread in Europe (even going all the way to mandating certain historical and political interpretations to the exclusion of other interpretations, under threat of criminal punishment).
Russia is a multi-ethnic, multi-confessional state, and perhaps the most diverse state in the world. Therefore Russia considers restrictions on hate speech to be essential. One is not free in Russia to goad or provoke members other ethnic groups or religions. Such hate speech cannot be defined as legitimate political or social discourse, that ought to be subject to legal protection. So the criminal law can and must be used to restrict such expressions of hate, as is also commonly done in Europe.
Beyond criminal restrictions on speech, such as those mentioned above (which are common in all western democratic countries), there are also civil restrictions under the area of defamation. It should surprise no one that Russia would chose to adapt the British or Western European model for its defamation laws, rather than the American model. The European interpretation is more in keeping with the Russian culture and Russian national character. Most Russians do not think it is proper for a citizen to slander or defame another person, including a public official, and the Russian people are certainly not in the streets clamoring for such spurious "rights" (other than a very small minority, and we all know who they are, as they make themselves so obvious by their constant--almost farcical by now--efforts to transform Russia into "democracy" which is ruled by a tiny minority of its citizens. But such people harbor ideologies so alien to any genuinely Russian ones that they may as well hail from another planet).
Russia is a sovereign country, and Russia will chart its own path forward. You may not like it, but from where I sit it looks like their is precious little you can do about it. Certainly some Western concepts and principles are useful to Russia, and Russia is not above borrowing and adapting such ideas when they are useful for Russia. But Russia will not be lectured to (or still less be dictated to) by those who claim that their own particular ideologies and interpretations have some sort of "universal" validity, which everyone else on the planet must accept. That after all was the primary sin of Adolph Hitler and all those who thought like him throughout history.
It is not necessary to throw people in jail for defaming others, as civil prosecutions can be just as effective, as the application of defamation law in the UK makes clear. A large court-ordered monetary defamation judgment must be paid, and when it is not paid then the plaintiff has the right to follow up with court-ordered asset seizures (aggressively seizing real estate, vehicles, computers, bank accounts, etc.) You will say that such laws in Russia could only be a cloak for something sinister or nefarious, forgetting that such is the standard in most of the western world. In fact such laws only impose one requirement, which is in keeping with good ethical and journalistic principles in any case, and that is that one should not publish or say something which causes harm to the reputation of another person unless he is sure that it is true. In Russia, as in other countries, those who are able to meet this common-sense burden are legally free (under civil and criminal law) to publish any information they want, against President Putin or anyone else in Russia.
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