Administrative and Legal Restrictions on the Right to Disseminate Information in the Context of Constitutional Values of Legal Freedom and State Security

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

An important role in the system of legal responsibility of Russia belongs to administrative responsibility. Modern science identifies a wide list of types of administrative responsibility that differ in the specifics of the functions performed. In our opinion, the institute of administrative responsibility for offenses in the field of violation of the order of dissemination of information, which is currently actively developing, deserves special attention. In recent years, a whole set of changes has been introduced into the domestic administrative legislation, both tightening responsibility for the commission of previously existing types of administrative offenses, and introducing new types of offenses in this area. Currently, administrative responsibility for violations committed in the exercise of the right to free dissemination of information is legally fixed. The changes that have taken place in the legislation have been widely discussed and evaluated ambiguously among domestic experts and researchers. In addition, science has not developed a unified understanding of the essence of restrictions on the freedom of dissemination of information in administrative law. Meanwhile, the problem of establishing certain restrictions on the freedom of information dissemination in order to ensure state security has been acute in our country in recent years. This is due to the emergence of new external and internal challenges facing Russia. The establishment of certain restrictions on the freedom of dissemination of information is characteristic of the legal system of most modern states. At the same time, in different states, the nature and degree of restrictions imposed on the freedom of dissemination of information are different and are determined by factors such as the political regime, the foundations of the constitutional system and some others. The totality of the above facts allows us to conclude about the relevance of the problem of administrative responsibility for violating the order of dissemination of information as a mechanism for ensuring state security.  

The scientific novelty of this study lies in the fact that the problem of restricting the right to free dissemination of information through administrative liability mechanisms is considered through the prism of not only its possible restrictions for the security of the state, but also in the context of the correlation of freedom of information dissemination and state security, as the most important constitutional values.        

Assessing the mechanism of administrative responsibility for violation of the order of dissemination of information in the context of ensuring the security of the state, we consider it important to establish, on the one hand, the boundaries of the right to free dissemination of information, on the other hand, the limits of restrictions that can be applied in the implementation of this type of responsibility. In this regard, we consider it necessary to establish the content of the right to free dissemination of information, and to disclose the content of state security, to study the basics of appropriate legal regulation.

Thus, the law does not contain a direct interpretation of freedom of information dissemination. At the same time, the content of information dissemination as an element of the studied design is disclosed in Federal Law No. 149-FZ of 27.07.2006 "On Information, Information Technologies and Information Protection". According to Article 2 of this law, the dissemination of information is understood as actions aimed at obtaining information by an indefinite circle of persons or transmitting information to an indefinite circle of persons ^[3]. Despite the fact that the legislator's campaign has its opponents, it is official and, in general, generally accepted in Russian science. Freedom of information dissemination is considered as one of the powers of the constitutional right to freedom of speech, as well as a separate power of the right to information ^[10]. This approach fully corresponds to the position of the modern legislator. However, a little more than 10 years ago, in the scientific literature, such separation of powers was considered mainly "for the future" for subsequent interpretation in the event of new information and communication relations related to the right to disseminate information ^[10].  We believe that the current formation of new information and communication relations, which prompted, among other things, the introduction of new administrative and legal restrictions, confirms the independence of freedom of information dissemination as a separate competence and object of scientific research.

The legal foundations of freedom of information dissemination are laid down in the constitutional and legal regulation. Article 29 of the Constitution of Russia proclaims the right of everyone to freedom of thought and speech.  Everyone has the right to freely seek, receive, transmit, produce and disseminate information in any legal way. The list of information constituting a state secret is determined by federal law. At the same time, the Basic Law of Russia directly establishes the possibility of establishing certain restrictions of the studied law. Thus, propaganda or agitation that incites social, racial, national or religious hatred and enmity is not allowed. Propaganda of social, racial, national, religious or linguistic superiority is prohibited. In addition, Part 3 of Article 53 of the Constitution of Russia enshrines the provision that human and civil rights and freedoms may be restricted by federal law only to the extent necessary in order to protect the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons, ensuring the defense of the country and the security of the state^[1].

These restrictions have been specified in the norms of the Code of Administrative Offences of the Russian Federation (hereinafter – the Administrative Code of the Russian Federation). Thus, Chapter 6 of the Administrative Code of the Russian Federation establishes prohibitions on: dissemination of information promoting non-traditional sexual relations, sex change; propaganda of pedophilia; dissemination of any information containing propaganda of non-traditional sexual relations and sex change among minors; propaganda of narcotic drugs, psychotropic substances or their precursors, plants containing narcotic drugs or psychotropic substances or their precursors, and their parts containing narcotic drugs or psychotropic substances or their precursors, new potentially dangerous psychoactive substances^[2].

In recent years, new legal norms aimed at preventing the dissemination of false information have been included in Chapter 20 of the Administrative Code of the Russian Federation, which contains a list of offenses that infringe on public order and public safety. In particular, such articles as Article 20.3. "Propaganda or public display of Nazi attributes or symbols, or attributes or symbols of extremist organizations, or other attributes or symbols, propaganda or public display of which is prohibited by federal laws" deserve attention; Article 20.3.1. "Incitement of hatred or enmity, as well as the humiliation of human dignity"; Article 20.3.2. "Public calls for actions aimed at violating the territorial integrity of the Russian Federation"; Article 20.3.3. "Public actions aimed at discrediting the use of the Armed Forces of the Russian Federation in order to protect the interests of the Russian Federation and its citizens, maintaining international peace and security or the exercise by state bodies of the Russian Federation of their powers for these purposes; Article 20.3.4. "Calls for the introduction of restrictive measures against the Russian Federation, citizens of the Russian Federation or Russian legal entities" ^[2].

In general, the issues of establishing legal restrictions have found support in the scientific community, and the approach according to which the exercise of the right to free dissemination of information cannot be unlimited and is inevitably limited to public, that is, state and public interests is dominant^[8]. The right to disseminate information is not absolute. According to this approach, the realization of the right of one subject to the free dissemination of information should take into account the common, prevailing interests of the state and society, enshrined in law. In addition, all of the above administrative prohibitions are characterized by the fact that they are established only in relation to cases of dissemination of information that have caused harm or the emergence of a real threat of harm to protected legal relations. Such restriction, on the one hand, is a kind of guarantee protecting against unlawful restriction of the right to disseminate information. On the other hand, it explains the expediency of establishing administrative prohibitions. However, such a restriction does not completely exclude the possibility of unlawful bringing to administrative responsibility for violating the order of dissemination of information due to the existing technical and legal problems of formulating the composition of the relevant administrative offenses, which do not exclude the possibility of discrepancies in legal norms^[6].

Turning to the discussion of state security, we note that the law does not contain a legal definition of this concept. At the same time, the issues of the content of state security have been widely studied in legal science. A great contribution to the study of the category of state security was made by S. Vasiliev, who, at the same time, did not distinguish the concept of state security from other related categories, but considered the state itself, first of all, as a subject of international law^[7]. Another position is taken by D.V.Iroshnikov and R.V.Puzikov, who formulated the concept of state security as a state of protection of the state system, state bodies, territorial integrity of the state, as well as its sovereignty from internal and external threats ^[9]. The indisputable advantages of this approach are not only taking into account the possibility of both external and internal threats affecting the state, but also a clear and consistent allocation of state security facilities. Thus, when discussing State security, we consider this concept in a broad sense.

The study of theoretical studies of state security issues and the analysis of a wide range of legal norms, including the norms fixing administrative responsibility for violation of the order of dissemination of information, give grounds to formulate the following important characteristics of state security that are important in the context of the studied problem. First, State security is an element of State sovereignty and all mechanisms for its implementation. Secondly, ensuring State security implies ensuring interethnic, interfaith, social peace and harmony in society. Thirdly, one of the functions of State security is to counter the illicit trafficking of narcotic drugs, as well as to counter the propaganda of narcotic drugs. Fourth, an important component of the mechanism for ensuring state security is the development and implementation of mechanisms to counter the dissemination of information that threatens the foundations of morality. The legal prohibitions established in this area play an important role both in the formation of the general level of culture in society and the spiritual values on which society and the state are based. Fifth, ensuring state security is impossible without ensuring the defense capability of the state. The dissemination of information that poses a threat to the defense capability of the State creates a potential threat to the sovereignty of the State. Sixth, administrative responsibility is one of the mechanisms for ensuring State security.

On the other hand, state security, as well as legal freedom (in our case, freedom of information dissemination) are important constitutional values. The axiological approach to the study of these categories allows us to judge the direction of the vector of state development, to determine the priority of values in case of legal conflicts, to formulate a hierarchy of constitutional values^[5].

The question of the primary correlation of such constitutional values as legal freedom and state security seems rather complicated. D.A.Avdeev identifies state security as the highest constitutional value. According to the researcher, public order and state security form the basis of the activities of any subjects of law on the territory of the Russian Federation, and it is in these conditions that a person can realize his legal freedom ^[5]. Developing the idea of D.A.Avdeev, we note that the violation of state security will inevitably lead to the direct or indirect leveling of other constitutional values. However, this fully applies to the characteristics of legal States in which not only the priority of human rights is proclaimed, but also guarantees are secured and conditions for their practical implementation are created. While for non-legal states, which are characterized by the elevation of the state over the individual and the law, a violation of the security of the state, on the contrary, can lead to the subsequent transformation of this type of state into a legal one, and consequently to the proclamation and practical implementation of constitutional values inherent in legal states. The priority of state security over legal freedom is directly enshrined in Article 55 of the Constitution of Russia.

Thus, both legal freedom and state security are considered vectors of the development of a modern rule of law state. State security in the hierarchy of constitutional values rises above legal freedom. This elevation gives grounds to assert that administrative responsibility for violating the order of dissemination of information is primarily aimed at ensuring state security in a broad sense. At the same time, the statement about the priority of state security as a condition for the realization of legal freedom is true only with respect to legal states. In case of detection of legal conflicts between these values, in the conditions of the rule of law – the decision should be made in favor of state security. At the same time, the Russian Federation, according to the dominant approach in science, is currently on the path of becoming a rule-of-law state. Therefore, the application of this approach, without taking into account such a constitutional value as legal freedom, poses a danger of establishing illegal restrictions.

Assessing administrative responsibility for violation of the order of dissemination of information from the position of the right to free dissemination of information as an element of such constitutional value as legal freedom, it is important to keep in mind the following two important constitutional principles on which legal freedom is based. So, on the one hand, the exercise of human and civil rights and freedoms should not violate the rights and freedoms of other persons, and on the other hand, human and civil rights and freedoms are directly applicable. These principles, together with the principle of the priority of human rights, play an important role in resolving legal conflicts; they should not be contradicted by the legal restrictions established.

Discussing the question of the correlation of administrative responsibility for violating the order of dissemination of information and the requirements of ensuring state security, we note that this issue has not been clarified in the decisions of the supreme courts of the Russian Federation. At the same time, we believe that the current increase in judicial practice (often contradictory) in cases of administrative offenses on violation of the order of dissemination of information, over time, will expand opportunities in determining the balance between the right of citizens to freely disseminate information and mechanisms to ensure state security. Meanwhile, some explanations concerning this issue were given in 2022 in the corresponding information letter of the Prosecutor General's Office of the Russian Federation, which touched upon the specifics of the consideration of administrative cases concerning the dissemination of "fake" and discrediting information to public authorities^[4]. One of the important clarifications contained in this document was the provision that bringing to administrative responsibility for the commission of relevant administrative offenses should be carried out taking into account all the factual circumstances of the case. The Prosecutor General's Office of the Russian Federation also drew attention to the fact that an act containing signs of administrative offenses in the field of information dissemination can be an administrative offense only if there are signs of the subjective side of the offense. Thus, the dissemination of information by the subject of an administrative offense in violation of the law should not only lead to harm or the emergence of a real threat of harm to protected legal relations, but should also have an intent corresponding to the specified consequences.

Thus, we have come to the following conclusions. The establishment of administrative responsibility in the Administrative Code of the Russian Federation for violation of the order of dissemination of information is necessary to ensure state security. However, the implementation of the mechanism of the studied type of administrative responsibility should be carried out in a balanced manner, taking into account both the interests of ensuring state security and ensuring legal guarantees of the constitutional right of everyone to freely disseminate information. In the hierarchy of constitutional values, State security is higher than legal freedom. However, in our opinion, in the event of legal conflicts between the right to disseminate information and the interests of state security, when establishing and implementing administrative responsibility for violating the order of dissemination of information, it is impossible to be unambiguously guided by the primacy of state security. In view of the imperfection of the current legal regulation and the transitional stage in Russia on the path of the formation of the rule of law, the use of such an unambiguous approach would pose a threat of establishing unlawful restrictions. Achieving an optimal balance of constitutional values when introducing and implementing administrative responsibility for violating the order of dissemination of information will be facilitated by developing a practical approach that would be based on taking into account all the factual circumstances of the case, the objective and subjective side of the offense, as well as a real threat to public relations related to ensuring state security.