The commission of an administrative offense on the Internet as a qualifying sign

Novgorodov Dmitrii Lecturer at the Department of Administrative Rights and Administrative Activities of the Police, Moscow Regional Branch of Moscow University of the Ministry of Internal Affairs of Russia named after V.Ya. Kikot 143100, Russia, Moskovskaya oblast', pos. Staroteryaevo, MOF MosU MVD Rossii, UK 21, kab. 316 nowdi1@ya.ru Other publications by this author

Information and communication networks, including the Internet, are now widespread and affect all spheres of human activity around the world and in Russia, in particular. This is also confirmed by the fact that with the total population of the Russian Federation at the beginning of 2022 of 145.9 million people, more than 129 million people are Internet users, which is almost 90% of the total population of our country ^[12].

According to statistics, Internet users spend more than 7 hours online every day. The main purpose of using the Internet by residents of Russia aged 16 to 64 years is: searching for information (84.3% use the Internet for this purpose); communicating with friends and relatives through social networks and messengers (66.4%); reading news (66.1%) ^[12].

At the same time, social networks and the Internet in general can often carry a hidden threat. They are used to distract thoughts, relax, abstract from everyday life and the everyday life of real life, weakening their vigilance ^{[5, p. 47]}.

The analysis of scientific and legal literature has shown that currently the majority of authors researching legal issues related to the use of the Internet pay attention mainly to the general problems faced by the state and society in the process of introducing information and communication networks into life, usually from the standpoint of criminal or civil law.

V.A. Lokhbaum rightly notes that "such resources and networks united in the Internet space represent a unique virtual environment that allows its users to enter into communication and carry out real (non-virtual) actions in it or with its help, about which real relationships may arise between these users (including legal relations) and which may have real consequences that require appropriate regulatory mechanisms. The point is that the virtual environment has turned into an independent sphere of relations conditioned by global processes of informatization and mass communication, without which the existence of a modern person is unthinkable, while becoming a source of all kinds of dangers and threats, a tool that can be used for both legitimate and illegal purposes" [7. p. 131].

Being a convenient communication tool, the Internet and social networks, along with the possibility of organizing communication, dating, entertainment, creating social relations between people, can become the object of dissemination of information expressed in an indecent form, insulting human dignity and public morality, indicating disrespect for society, the state, official state symbols of the Russian Federation ^{[4, p. 19]}.

In this regard, our state does not leave this area without attention and in recent years, Russian legislation has been regularly updated with new norms regulating legal relations in information and telecommunications networks, as well as establishing various types of liability for offenses on the Internet, including administrative liability. We agree with the position of some authors who claim that "the introduction of the Internet into administrative torts occurred in two ways: both as an additional qualifying sign of an administrative offense, and as an integral element of an illegal act" ^{[6, p. 26]}.

So only over the past 5 years, more than 30 changes have been made to the special part of the Administrative Code of the Russian Federation, establishing administrative responsibility for acts committed on the Internet.

As a result, a huge number of people are brought to administrative responsibility for offenses committed on the Internet. At the same time, it should be noted that there are cases of bringing persons to administrative responsibility for posting information on the Internet several years ago, before the inclusion of the relevant norm in the Administrative Code of the Russian Federation; for posting information in groups closed to public access; for likes or reposts of previously posted information by other persons. In this regard, we consider it necessary to analyze the administrative legislation establishing responsibility for offenses committed on the Internet, identify problems and suggest ways to solve them.

In the legal and scientific literature, the information and telecommunications network Internet is very often presented as a kind of virtual environment and is called the Internet space, virtual space, cyberspace ^{[8, p. 27]}. In our opinion, such a view is a theoretical philosophical category, since from the point of view of Russian legislation, namely, in accordance with paragraph 4 of Article 2 of Federal Law No. 149-FZ of 27.07.2006 "On Information, Information Technologies and Information Protection" ^[2] (hereinafter – FZ No. 149) information and telecommunications the network is a technological system designed to transmit information over communication lines, access to which is carried out using computer technology. That is, an information and telecommunications network, including the Internet, is simply a means of communication for transmitting, storing and receiving information using special equipment, and not some abstract virtual space.

Having analyzed the norms of the special part of the Code of Administrative Offences of the Russian Federation ^[1] (hereinafter referred to as the Administrative Code of the Russian Federation), it can be seen that in different articles of the Code there are different formulations related to the commission of illegal acts on the Internet.

Some dispositions of the articles of the Code of Administrative Offenses contain such a qualifying feature as an act committed: using the information and telecommunications network "Internet" (Part 1.1 of Article 6.13 of the Administrative Code of the Russian Federation); using information and telecommunications networks, including the Internet (Part 2 of Article 6.21 of the Administrative Code of the Russian Federation); committed by means of-telecommunication network "Internet" (Article 6.13.11 of the Administrative Code of the Russian Federation); distribution in information and telecommunication networks, including the Internet (Part 3 of Article 20.1 of the Administrative Code of the Russian Federation). The use of these different formulations in the norms of the special part of the Code can be explained by the fact that the articles of the Administrative Code of the Russian Federation were amended by several Federal Laws that were developed at different times by different authors.

It should be noted that a significant part of the articles of the Code of Administrative Offences of the Russian Federation does not contain a direct reference in the text to the Internet telecommunications network, however, numerous offenses are often committed, including using the said network ^{[10, p. 76]}. Practice shows that this does not prevent the law enforcement agency from bringing the perpetrators to administrative responsibility for acts committed using the Internet. For example, in the city of Yartsevo, Smolensk region, a citizen was brought to administrative responsibility for publicly displaying Nazi symbols to an unlimited circle of people by placing the VKontakte social network in free access ^[3], although in fact the citizen posted a picture on a personal page that is open only to network users who are friends of his.

We agree with Y.V. Titova, who believes that "these administrative offenses are united by the fact that they provide for responsibility for actions committed on the Internet aimed at publishing and distributing information that is negative, undermines the moral and moral foundations of society, demonstrates hostility or otherwise violates the established procedure for handling information" ^{[11, p. 49]}.

It should be noted that in all articles of the special part of the Administrative Code of the Russian Federation, the compositions of administrative offenses, regardless of whether they contain such a qualifying feature as committing an administrative offense using the Internet or not, are usually formal. The very fact of posting information prohibited for distribution on the territory of the Russian Federation in accordance with paragraph 6 of Article 10 of Federal Law No. 149 on the internet is already an administrative offense and does not require the occurrence of any negative consequences or actual harm.

As we indicated above, the wording in the dispositions of the articles of the Administrative Code of the Russian Federation formally allows you to attract any person for posting or transmitting information using, using or via the Internet, regardless of where and how the information prohibited for distribution was posted. For the legislator and law enforcement agencies, it does not actually matter whether the information was posted in personal correspondence, in a closed group of a social network or a forum branch to which an unlimited number of people do not have access, and how many people saw this publication.

The only exception is Part 2 of Article 5.61 of the Administrative Code of the Russian Federation, which establishes administrative liability for an offense (insult) committed in public using information and telecommunications networks, including the Internet. It should be noted right away that this is the only norm fixed in the Administrative Code of the Russian Federation, which provides for responsibility for the public commission of an offense using the Internet.

The concept of "public" in the explanatory dictionary of the Russian language is defined as open or carried out in the presence of the public ^{[9, p. 855]}. In this regard, during the proceedings on an administrative offense under Part 2 of Article 5.61 of the Administrative Code of the Russian Federation, law enforcement agencies need to prove that this act was carried out publicly, namely, the information is publicly available to an unlimited number of persons. However, in the proceedings on administrative offenses under other articles of the Administrative Code of the Russian Federation, officials have no need to prove the public placement of information prohibited for dissemination.

Thus, we see that, in accordance with the current legislation, law enforcement officials, without leaving the office, can bring to administrative responsibility any Internet users who have posted, reposted or liked information and communication networks on the Internet, information prohibited for distribution on the territory of the Russian Federation, regardless of when and for what purpose this was done, whether an unlimited number of people had access to the specified information.

In this regard, in order to protect the rights and legitimate interests of Internet users, it seems necessary to take into account the fact that the qualifying sign of an illegal act on the Internet should not just be the commission of an offense with the use, application or through information and communication networks, including the Internet, namely the fact that public distribution in open access for an unlimited number of persons.