The concept of deliberately unreliable information disseminated under the guise of reliable communications in law

Balekina Violetta Mikhailovna Postgraduate student, Department of International and Public Law, Financial University under the Government of the Russian Federation 49/2 Leningradsky Prospekt, 125167, Moscow, Russia vml94@yandex.ru Other publications by this author

In recent years, new norms have been included in the Code of Administrative Offences of the Russian Federation ^[2] (hereinafter - the Administrative Code of the Russian Federation), establishing responsibility for committing administrative offences related to the illegal dissemination of various types of socially significant information. The norms of Part 9-11 of Article 13.15 of the Administrative Code of the Russian Federation prohibited the dissemination of obviously unreliable socially significant information under the guise of reliable messages. However, the inclusion of new norms and the formulations used to present their content was perceived ambiguously by representatives of Russian legal science and practice. The Council under the President of the Russian Federation for the Development of Civil Society and Human Rights (hereinafter – the HRC of the Russian Federation) at the stage of making appropriate amendments to the Federal Law "On Information, Information Technologies and Information Protection" (hereinafter - the Federal Law "On Information ...") ^[4] and in Article 13.15 of the Administrative Code of the Russian Federation, based on the analysis of legal provisions, proposed to reject the draft amendments ^[5]. The HRC of the Russian Federation, even before making appropriate changes to the legal norms we are studying, paid serious attention to the issues of the content of the sign of deliberately false information, as well as the problems that a law enforcement officer may face in the event of future changes subjected to his legal assessment.

  Despite the negative conclusion of this advisory body, the proposed changes were fixed in the Administrative Code of the Russian Federation. Currently, the norms of Parts 9-11 of Article 13.15 of the Administrative Code of the Russian Federation are part of the Russian legal system and have been widely used in legal practice. The mandatory feature of the objective side of the composition of these administrative offenses includes the deliberate unreliability of information disseminated under the guise of reliable messages. However, there is no unity of views on the content of this legal structure - neither in science nor in legal practice. Some aspects of this construction are given attention in the works of S.V.Simonova, S.A. Kulikova. The concept of "knowledge", which is part of the construction under consideration, has been more widely studied by representatives of various areas of legal science. So, A.I.Rarog, S.L.Budylin, O. V. Stuchilin, K.V. Dyadyun talk about the content of this feature. At the same time, the problem of the content of the category of known unreliability of information disseminated under the guise of reliable messages was considered in the research of scientists along the way, and did not receive independent and full-fledged study in legal science. There is no doubt about the high importance of an accurate and unambiguous determination of the content of the specified element of administrative offenses provided for in Parts 9-11 of Article 13.15 of the Administrative Code of the Russian Federation, since the quality of regulation of the relevant legal relations depends on it.

  In this regard, the question has become relevant about what exactly should be understood by deliberately unreliable information disseminated under the guise of reliable messages? We believe that knowingly unreliable information disseminated under the guise of reliable messages is information (messages, data), the inaccuracy or incompleteness of which the person is aware of, which is distributed by this person under the guise of reliable messages.  In accordance with the nature of the research problem posed, classical general scientific (formal-logical, systemic and functional), special-legal (formal-legal, dogmatic, linguistic interpretation) and a number of other methods were used in the work. The legal structure of obviously unreliable information disseminated under the guise of reliable messages consists of several interrelated elements, each of which is an independent subject of scientific discussions.

  In your opinion, it is necessary to start by considering one of the central elements of the considered feature of administrative offenses – the concept of false information. So, at present, there is no unity of views on the issue of the content of this category.

  The legal definition of the concept of "information" is contained in the Federal Law "On Information ..." mentioned earlier. According to Part 1 of Article 2 of the said regulatory legal act, information is information (messages, data) regardless of the form of their presentation. At the same time, the content of the concept of "unreliable information" is not currently disclosed in the law.

  The scientific literature presents various positions on the issue of the content of this category and its correlation with other definitions that are close in meaning. Some scientists, including, for example, S. A. Kulikova, in their research rely on the equivalence of the use of the concept of deliberately unreliable information in the law and the concept of deliberately false information similar in content^[15]. In turn, S.V. Simonova, on the contrary, considers it necessary to differentiate these legislative categories. We believe that the peculiarity of these concepts in modern Russia is that they are used in legal acts regulating legal relations in various branches of law, and currently their content is usually defined in different branches of law, regulatory legal acts and even legal norms in different ways. There is no official interpretation of the content of this concept in relation to Article 13.15 of the Administrative Code of the Russian Federation and other norms regulating similar legal relations. At the same time, in the review of judicial practice approved by the Presidium of the Supreme Court of the Russian Federation on April 30, 2020, in which, along with solving a number of other issues, the differentiation of administrative responsibility provided for in Articles 13.15 of the Administrative Code of the Russian Federation and criminal liability provided for in Articles 207.1, 207.2 of the Criminal Code of the Russian Federation (hereinafter – the Criminal Code of the Russian Federation) is carried out, The Supreme Court clarifies that deliberately false information means such information that initially does not correspond to reality, which was reliably known to the person who distributed it. Although the Supreme Court of the Russian Federation did not directly disclose the meaning of the concept of "knowingly unreliable information", in the process of interpreting the norms of law containing the concepts of knowingly false and knowingly unreliable information, it did not distinguish between them.

The difference in the content of these concepts is evidenced by their interpretation in the dictionaries of the Russian language. Thus, the meaning of the words "false" ("false") and "unreliable", which later became part of legal definitions in the Russian language, is established in different ways. The words "false" ("false") denote untruth, deception, intentional distortion of the truth, and the word "unreliable" - something that causes doubt in its authenticity. In judicial practice, one can also find a point of view, according to which the concepts of "knowingly false" and "knowingly unreliable" are recognized as unequal. Thus, the Avtozavodsky District Court of Togliatti in one of its decisions gave a noteworthy legal assessment of the concepts of "knowingly false" and "knowingly unreliable". In the decision, the court argued its position as follows: "False information should be considered that does not correspond to reality, what the borrower knows and what he intentionally uses to mislead the lender about the circumstances important to him and obtaining a loan. In contrast to false information, unreliable information will be those data in which the borrower is aware of the inaccuracy or incompleteness, but does not take action (shows passivity) to eliminate them. If the fraudster makes false information himself, then he uses "false information" (as they use someone else's mistake or the prevailing circumstances), while the unreliability of the information is not intentionally created by the borrower himself"^[6]. S.V. Dubovichenko and V.P.Karlov completely mix not only the concepts of unreliable and false information, but also information, not corresponding to reality^[12].

  In turn, the fundamental difference between the content of the categories "unreliable information" and "information that does not correspond to reality" was noted by the Human Rights Council of the Russian Federation. In the conclusion we mentioned earlier, the HRC of the Russian Federation relied on the position of the Supreme Court of the Russian Federation, set out by it in one of its rulings. According to this position, "untrue information is statements about facts or events that did not take place in reality at the time to which the disputed information relates"^[7]. Unreliable, according to the HRC of the Russian Federation, "such statements about facts and events that are not worthy of believing in their correspondence to reality should be recognized." The Human Rights Council of the Russian Federation concludes that the category of reliability of information has a very indirect relation to objective truth. At the same time, the subject's trust in the source of information plays an important role. Obviously, the Russian Armed Forces itself attaches great importance to the role of trust in the source of information. Thus, according to the Supreme Court of the Russian Federation, references to competent sources and statements of public persons are among the signs indicating that the disseminated information is given the form of reliable messages^[6].

  In addition to the norms of Parts 9-11 of Article 13.15 of the Administrative Code of the Russian Federation, the category of "knowingly unreliable information" ("knowingly unreliable information") is used in the formulation of norms relating also to other branches of law. For example, it is applied in Article 285.3 of the Criminal Code of the Russian Federation, as well as articles 5.54, 19.7.4, 6.34, 8.5.2 and a number of other articles of the Administrative Code of the Russian Federation. As a rule, criminal or administrative responsibility for reporting or specifying false information (data, information, etc.) is established only in relation to special subjects – officials whose competence includes the duty to verify and certify the correctness of the content of information received from external and internal sources and having special capabilities to verify the relevant information, and the content of the relevant information as a rule, it has strict, formally defined boundaries.

  At the same time, the norms of Parts 9-11 of Article 13.15 of the Administrative Code of the Russian Federation do not limit the range of subjects who can be brought to administrative responsibility for committing offenses provided for by these norms exclusively by special subjects, and the effect of these norms extends to an unlimited number of persons.  In this regard, it can be assumed that the legislator proceeds from the position that any person subject to administrative responsibility also has (should have) the ability to verify the reliability of the information received by him.

  Within the framework of the published expert opinion of the HRC of the Russian Federation, the forecast of the occurrence of cases, bringing to administrative responsibility for the dissemination of obviously unreliable information, persons who had reason to believe that the information they disseminated was true was announced. In the opinion of the Council, the occurrence of such situations is possible in the absence of specific, objective, comprehensive information. We see convincing arguments of the HRC of the Russian Federation about the possibility of situations of the lack of a correct information picture, including from competent state bodies. In the event of such situations, the court, in fact, will be charged with the responsibility of resolving issues of faith and trust that go beyond the legal plane.

  Since in order to make a decision on the presence of signs of an administrative offense in the actions of a subject, provided for by the norms of Parts 9-11 of Article 13.15 of the Administrative Code of the Russian Federation, it is necessary to establish the fact of the dissemination of not just unreliable, but obviously unreliable information, the correct establishment of the meaning of the concept of knowledge, which is an integral element of the sign of offenses considered in our study, plays an important role..

  The category of knowingness is used in the formulation of norms relating to various branches of substantive (criminal, administrative, civil, etc.) and procedural (criminal procedure, administrative procedure, civil procedure) law. It has also become the object of study of scientists-representatives of the relevant branches of legal science.  Despite the fact that this category is traditionally studied by representatives of branch sciences taking into account a certain context (specific legal norms) in which it is fixed in the law, we consider it possible to turn to the consideration of their research in terms of analyzing the general features of this concept.

Let us turn to the works in the field of criminal law science, in which this category has been studied quite widely. Among the representatives of this direction, there was no consensus on the content of the concept of knowledge. O.V. Stuchillin believes that knowledge is a component of the intellectual element of intent, belongs to the categories of a subjective nature and reflects the person's authentic, unconditional and undoubted knowledge of the actual circumstances of the case. The author connects the concept of factual error in criminal law with this category, which takes place in cases when a person has an incorrect idea of the actual circumstances that play the role of objective signs of the corpus delicti and determine the nature of the crime and the degree of its public danger. In the case of an actual error, when a person is in good faith mistaken about the objective properties of the act being committed, according to this author, the judicial qualification of the sign of knowledge is the most difficult. A.I. Rarog adheres to the opposite position. The scientist considers the inclusion of knowledge in the list of signs of the subjective side of the crime unjustified and believes that "knowledge" is a special technique used to characterize the subjective side of the crime. With the help of this technique, the legislator indicates that the subject was known (known) in advance when committing the act about the existence of circumstances that are essential for the qualification of a crime or for the imposition of punishment, that is, he reliably knew about these circumstances ^[11]. K.V.Dyadyun understands by knowledge in criminal law a previously known reliable knowledge of legally significant factors ^[13]. Without delving into the content of criminal law discussions, we note an important property of the concept of "knowledge", which runs through the works of these scientists: knowledge is a characteristic (used to describe) the subjective side and indicates that the subject knew about the existence of circumstances that are essential for the qualification of acts. In the field of civil law science, S.L. Budylin's position seems interesting.  In his analysis devoted to determining the meaning of the category "knowingly" in the norms of civil law, this author came to the conclusion that in some legal norms the concept in question does not carry any semantic load at all and can simply be omitted without losing the meaning of legal norms.

  When interpreting the norms of Article 207 ¹ and Article 207 ² of the Criminal Code of the Russian Federation, which establish responsibility for the public dissemination of deliberately false information about circumstances that pose a threat to the life and safety of citizens, the Supreme Court of the Russian Federation noted that the act falls under the signs of the specified offense only when the subject brought to criminal responsibility acts with direct intent, is aware of that the information he mixed under the guise of reliable information is false, and is intended to bring this information to the attention of other persons^[8]. We believe that in this case, it is the category of knowingness that serves to express the presence of a mandatory element of the subjective side of the crime – direct intent, as well as to indicate the mandatory presence of awareness of the false nature of the information posted by the subject of the crime, and the presence of a goal – to bring this information to the attention of other persons. Is it possible to assert that this category is applied in the norms of Part 9-11 of Article 13.5 of the Administrative Code of the Russian Federation for a similar purpose? We believe that in the case of a positive response, taking into account the subjective component of the category "unreliable", the law enforcement officer will be faced with the difficult task of establishing the fact of trust of the person being brought to administrative responsibility for committing offenses provided for in Part 9-11 of Article 13.15 of the Administrative Code of the Russian Federation, the content of the information itself and the source of its receipt. And even if these facts can be proved, the possibility of the subject assuming a conscientious delusion about the objective properties of the act being committed is not excluded.

  A clear example demonstrating both the fact of mixing the concepts of "false" and "unreliable" in judicial practice and the application of argumentation to the belief in the content of the disseminated information is the case of bringing to administrative responsibility for committing an offense under Part 9 of Article 13.15 of the Administrative Code of the Russian Federation I.N. Rufov ^[10]. According to the protocol on an administrative offense, a citizen spread on the Internet knowingly unreliable socially significant information under the guise of a reliable message that created a threat to public order and public safety by posting on the Vkontakte social network on a page with more than 20 thousand subscribers of users knowingly unreliable information that "... in the room the hospital will have an observatory for suspected coronavirus (COVID-19) ...". In the future, this information was distributed by unidentified persons in the whatsapp messenger.

  The accused of committing an administrative offense, without admitting his guilt, noted that he did not know about the unreliability of the information disseminated, that he himself had received this information from an employee of a state institution, and by distributing the information he received, he hoped to warn the population about the danger of coronavirus infection (COVID-19) and the need to comply with protection measures against it. And.N. Rufov denied the existence of intent to distribute in the mass media, as well as in information and telecommunication networks, obviously unreliable socially significant information. The next day, he denied this information.

In this case, the court, without distinguishing between the concepts of knowingly unreliable and knowingly false information, came to the following conclusion. The court noted that there was no evidence in the case file that "Rufov I.N. had spread information that was obviously false for him." Instead of the concept of knowingly unreliable socially significant information used by the legislator to indicate the signs of the offense provided for in Part 9 of Article 13.15 of the Administrative Code of the Russian Federation, the court used the wording "knowingly false information for him".

  Arguing its decision, the court referred to the explanation of I.N. Rufov, according to which the citizen disseminated the information received in a message in the Whatsapp messenger. Spreading the information, he was guided by the data received, adding to them an explanation about the need to stay at home. The court took into account the explanations of I.N. Rufov, who noted that knowing about the danger of the disease, he pursued the goal of ensuring that citizens comply with protective measures.

The Court also noted the absence of a proven relationship between the disseminated message and the possibility of creating a threat to public order and public safety, which is a mandatory sign of an offense established by Part 9 of Article 13.15 of the Administrative Code of the Russian Federation. The court concluded that the information was distributed by I.N. Rufov without violations of the current legislation, the citizen, posting this information on the Vkontakte social network, exercised his right to freedom of thought and speech, proclaimed in Article 29 of the Constitution of Russia, made a decision to terminate proceedings on an administrative offense. The analysis of judicial argumentation allows us to draw the following conclusions. Thus, the court confuses the concepts of "knowingly false" and "knowingly underdone". In other words, in the absence of evidence to the contrary, the court proceeded from the statement that the citizen considered the information relevant to reality. The fact of receiving information from an employee of a state institution by a court or by the body that drew up a protocol on an administrative offense for its compliance with reality was not investigated, and the source of information was not evaluated from the point of view of its reliability. At the same time, the court concluded that I.N.Rufov had no intent. The court did not mention that I.N.Rufov has an obligation to verify the information received from a third-party source before its dissemination. The case was considered by a higher court in connection with the filing of a complaint by employees of the internal affairs bodies. According to the arguments contained in the text of the complaint, a citizen should be found guilty of committing an offense under Part 9 of Article 13.15 of the Administrative Code of the Russian Federation, due to the fact that, without being convinced of the reliability of the information received, realizing that he is not an official representative of the authorities, and does not have the authority to disseminate socially significant information, immediately, distributed it on a social network, thereby creating a threat of mass violation of public order and public safety, violated the atmosphere of calm and protection of the individual. The district court did not satisfy the requirements contained in the complaint, due to the presence of irremediable doubts about the guilt of I.N.Rufov.  brought to administrative responsibility, since there is no evidence in the case that gives the court to believe without a doubt that Rufov I.N. spread deliberately false information for him. The case materials do not contain information about what the message Rufova I.N. may pose a threat to the violation of public order and public safety. Reasoning over the arguments set out in the complaint, we note that currently the permissive procedure for the dissemination of socially significant information is not fixed in the law and the relevant information can be distributed by any person, if it does not violate the norms of current legislation.

  We believe that another example reflecting the consequences of "terminological confusion" is the case of bringing to administrative responsibility for committing an offense under Part 9 of Article 13.15 of the Administrative Code of the Russian Federation a resident of Perm V.L.Maltsev^[9].  A citizen was found guilty by the World Court of committing an administrative offense in connection with posting on a social network page under a post containing information about new cases of coronavirus infection, indicating the occurrence of three fatal cases from coronavirus infection, a comment as follows: "I have only 4 friends died, a discrepancy ...". According to the explanations of V.L.Maltsev, who did not admit either guilt or intent to create panic among the residents of the city, he received the posted information from work colleagues: a friend of one of his colleagues had a daughter die from a coronavirus infection, another said that he received data from his work colleague about three residents of Perm who died from pneumonia. Believing that coronavirus infection and pneumonia are the same disease, and also that the information received from colleagues at work is reliable, since he had no reason not to trust colleagues, V.L.Maltsev posted the above comment.

  When deciding to bring a person to administrative responsibility, the court argued its position as follows:  "As established by the case materials, the information disseminated by the citizen was obviously unreliable, since it did not correspond to reality."  Thus, the court confuses the concepts of "unreliable" and "untrue. Further, the court, guided by official data on three recorded cases of death from coronavirus infection, notes that V.L. Maltsev, under the guise of reliable, posted false information about four cases of death, because he was aware of three cases of death not from coronavirus infection, but from pneumonia. Having evaluated the explanations of V.L. Maltsev, the court concluded that for the citizen himself, the specified information was not reliable, since it was not received from an official source.  Thus, the analysis of the judicial argumentation of the decision in the V.L. Maltsev case indicates that, in the opinion of the court, the information is obviously unreliable not only because it does not correspond to reality, but also because it was obtained from an unofficial, and therefore unreliable source. There were no other arguments proving the existence of direct intent and the guilty nature of the citizen's actions by the court.  And the possibility arising from the explanations of V.L. Maltsev that he made a factual error, a conscientious error regarding legally significant factors, was not investigated by the court. Evaluation of V.L. Maltsev's arguments about the absence of grounds not to trust the source of information was not carried out by the court. As a result of consideration of the complaint filed against the decision made by the court of first instance, it was left unchanged. In the cases we have cited, taking into account similar signs of the composition of an administrative offense, the courts have made opposite decisions.

  Thus, in science and judicial practice, a unified approach to the content of the sign of obviously unreliable information disseminated under the guise of reliable messages has not been formed. In legal science, there are two main approaches to the content of the category "unreliable information". Proponents of the first approach believe that this category has an independent meaning, while proponents of the second approach do not distinguish it from adjacent legal constructions that are close in meaning.  At the same time, in the Russian language, the content of the words used by the legislator to formulate a sign of the objective side of the offenses established in Parts 9-11 of Article 13.15 of the Administrative Code of the Russian Federation is defined differently. Even at the stage of making appropriate amendments to the Administrative Code of the Russian Federation, a number of important provisions were formulated regarding the content of the concept of "unreliable information" and the need to distinguish it from other related categories. In addition, by now, a heterogeneous practice of applying the norms of Parts 9-11 of Article 13.15 of the Administrative Code of the Russian Federation has been formed.

As possible reasons for the confusion of the concept of unreliable information and the concepts of false and untrue information, the following can be distinguished. Firstly, the legal categories "false" and "untrue" were officially interpreted in the acts of the Supreme Courts of Russia, in contrast to the category "unreliable". Secondly, these concepts have a clearer, obvious interpretation, excluding the possibility of discrepancies in their content. Thirdly, all of the above categories are used in the formulation of norms similar in content.

  It is necessary not only to disclose in the law the content of the concept of unreliable information underlying the composition of an administrative offense established by Part 9-11 of Article 13.15 of the Administrative Code of the Russian Federation, but also to state the content of the construction "obviously unreliable information disseminated under the guise of reliable messages" in the acts of official interpretation, due to the existence of the possibility of discrepancies of this design. This will avoid making mistakes when qualifying acts that fall under the signs of an offense provided for in Parts 9-11 of Article 13.15 of the Administrative Code of the Russian Federation. In addition, it has a positive impact on the formation of uniform law enforcement practice. We believe that the best way to consolidate the studied definition will be the formulation of its content in the form of a note to Article 13.15. of the Administrative Code of the Russian Federation.  In addition, it is necessary to establish criteria that allow distinguishing between the concepts of "unreliable" and "false".

  We believe that the concept of knowingly unreliable information in relation to the legal relations under study can be formulated as information (messages, data), the inaccuracy or incompleteness of which the person is aware of, which are distributed by this person under the guise of reliable messages.  In the construction formulated by us, there is no indication of such an element as the trust of the subject distributing information to its content, since if this element is included, the application of the norms of Parts 9-11 of Article 13.15 of the Administrative Code of the Russian Federation would become practically impossible due to the difficulty of establishing the fact of a person's trust in the content of the disseminated information. At the same time, the solution of trust issues in itself actually goes beyond the legal plane.   In addition, the indication of the person's awareness of the inaccuracy or incompleteness of the disseminated information covers the sign of knowledge applied by the legislator.    With the help of this definition, the concept of deliberately unreliable information will also be distinguished from other related categories.