Administrative liability as a means of countering the spread of illegal content on the Internet

Shulikov Kirill Andreevich Postgraduate student of the Saint Petersburg University of the Ministry of Internal Affairs of the Russian Federation 198206, Russia, Saint Petersburg, Pilyutov Pilot str., 1. k.a.shulikov@yandex.ru

One of the modern threats to the stable functioning of the emerging public relations include: an increase in the number of offenses and crimes committed in the network space; the lack of effective methods of administrative and legal influence applied to owners of social networks; poorly controlled nature of the information disseminated, etc.

One of the consequences of the above threats is the growth of negative informational and psychological impact on the individual psyche and public consciousness of the population through the dissemination of illegal content. By illegal content we mean: "information posted on the Internet, the dissemination of which is prohibited on the territory of the Russian Federation, as well as for the dissemination of which criminal or administrative liability measures are provided" ^{[1, p. 179]}.

The issues of ensuring administrative and legal protection of users from negative informational psychological effects were studied in the works of N.T. Jafarova ^[2], V.S. Maurin ^[3], E.V. Razuvaev ^[4], K.D. Rydchenko ^[5], A.A. Smirnov ^[6], A.A. Chebotareva ^[7] and others. Recognizing the significant scientific contribution of these authors to the theoretical development of the phenomenon of "harmful information", legal means of ensuring information security of the individual, society and the state, we would like to focus the reader's attention on the administrative and legal characteristics of certain norms of legislation on administrative offenses, which are means of countering the spread of illegal content on the Internet.

It is necessary to agree with the researchers ^{[8, pp. 62-63]}, who state the fact that offenses, the object of which is communication and information, are not limited exclusively to Chapter 13 of the Administrative Code of the Russian Federation, but are dispersed in other chapters of the Code. The set of legal norms establishing administrative responsibility for the dissemination of illegal content on the Internet includes more than 40 types of administrative offenses (Appendix No. 1), dispersed in 9 chapters of the Code (5, 6, 8, 13-15, 17, 19, 20). The subject of the studied group of offenses is the information and psychological safety of the population, the mental and physical health of Internet users.

Let's consider the following signs of the specified group of administrative offenses: act; public harmfulness, public danger; illegality; culpability; administrative punishability.

In relation to the studied group, the act is characterized by the commission of the following actions that form the objective side of the offense: "dissemination", "propaganda", "involvement" in activities that can harm the health and development of minors, "use of mass media, information and telecommunications networks" to disclose information of limited turnover, "production", "product release", "organization", "violation", etc. These forms of expression of the objective side are implemented by performing active actions and are aimed at creating and transmitting information prohibited for dissemination to users of the network space.

However, administrative offenses related to the distribution of illegal content can also be committed through inaction. This group of acts includes: "non-compliance", "failure to take measures" to remove illegal content, etc.

The following substantive sign of "public danger", "public harmfulness" of an administrative offense is the subject of a broad scientific discussion. Thus, administrative scientists hold different points of view regarding the presence of an administrative offense: a material and legal principle ^{[9, p. 32]}; a sign of public danger ^{[10, p. 34]}, public harmfulness ^{[11, p. 72]} offenses in general or their individual varieties ^{[12, p. 39]}, and etc.

It seems that certain administrative offenses related to the dissemination of illegal content have a sign of public danger, since the mass dissemination of information prohibited for circulation can lead to disorganization and destabilization of the main state and public institutions. A.V. Polushkin, when researching the nature and main signs of "administrative information offenses", also concludes that administrative torts related to the dissemination of prohibited information or committed in the information environment have a sign of public danger, not harmfulness ^{[13, p. 25]}.

At the same time, one of the distinctive properties that increase the degree of public danger of illegal content is the possibility of its use to cause harm to any of the objects of administrative and legal protection listed in Article 1.2 of the Administrative Code of the Russian Federation. The universal nature of illegal content as a means of harming any area of public relations is explained by the original nature of information, which is characterized by the reflection of real-life phenomena, events, etc. by translating them into symbolic, symbolic forms. In this case, the Internet is a space that concentrates and displays information about modern society, as a result of which the network space can be conditionally characterized as a mirror (in some cases hypertrophied) reflection of human society, translated into electronic form. As a result, illegal content can have a negative, in many cases destructive effect on various spheres of public relations.

The commission of administrative offenses related to the dissemination of prohibited information also contributes to the commission of certain types of crimes. For example, dissemination of information on methods and methods of cultivation of narcotic plants, places of sale of narcotic drugs and methods of their manufacture (Article 6.13 of the Administrative Code of the Russian Federation "Propaganda of narcotic drugs, psychotropic substances or their precursors, plants containing narcotic drugs ...") It may be a prerequisite for the commission of crimes provided for in Chapter 25 of the Criminal Code of the Russian Federation (Article 228 of the Criminal Code of the Russian Federation "Illegal acquisition, storage, transportation, manufacture, processing of narcotic drugs, psychotropic substances or their analogues ...", etc.). This position in its decisions (definitions) is shared by the Shebekinsky District Court of the Belgorod region ^[14], The Urensky District Court of the Nizhny Novgorod region ^[15] and others, as well as representatives of the academic community ^[16].

The composition of administrative offenses that contribute to the commission of certain crimes can include distribution on the Internet:

- "instructions on the homemade manufacture of explosives and explosive devices, the illegal manufacture or alteration of weapons, main parts of firearms" - part 5 of Article 13.15 of the Administrative Code of the Russian Federation (the commission of this administrative offense may lead to the commission of violent crimes using explosives, explosive devices, firearms; an increase in illegal arms trafficking, etc.);

- information on the sale of official documents entailing the onset or exemption from legal rights or obligations (advertising offering the possibility of: paid purchase of a driver's license, educational documents, passports of citizens of the Russian Federation, etc.) – part 1 of Article 14.3 of the Administrative Code of the Russian Federation (commission of the specified administrative offense may lead to an increase in crimes, the objects of which are: road safety, management procedure, state security);

- extremist materials - Article 20.29 of the Administrative Code of the Russian Federation (the commission of this administrative offense may lead to an increase in the number of crimes, the object of which is the foundations of the constitutional system and the security of the state), etc.

In the context of discussing the presence of a sign of public danger in the studied group of offenses, we consider it advisable to keep records of the number of user views and interactions with illegal content in order to better measure its degree. According to V.M. Berezin, the qualitative characteristic of the "mass" impact of information includes not only the number of persons receiving information, but also such signs as: the degree of intelligibility of perceived information and the response of information recipients from reading it ^{[17, p. 99]}.

In most cases, the main damage, harm caused as a result of committing administrative offenses related to the dissemination of illegal content, consists in the disorganization of existing public relations, deformation of socio-legal reality, and is achieved by promoting various social deviations, romanticizing illegal and antisocial behavior, discrediting the actions of government agencies, etc. Illegal content in this case acts as a link between the user and the authors of information prohibited from dissemination, who incline him to commit offenses, and in some cases crimes. The fact of distribution of illegal content already has a sign of public danger, since it has a negative impact on the individual psyche of the user, affects the formation of public consciousness of the population (in the case of mass distribution of illegal content).

According to the author, if law enforcement agencies have the technical ability to substantiate the degree of public danger of illegal content, it is necessary to specify a specific number: Internet users who viewed it; "reactions" (including comments) of users in relation to the information being disseminated; "reposts" or other actions aimed at its further dissemination.

The above-mentioned features of administrative offenses related to the dissemination of illegal content allow us to conclude that this group of acts has a sign of public danger due to the possibilities of illegal content:

1) encroach on any of the objects of legal protection listed in Article 1.2 of the Administrative Code of the Russian Federation;

2) in some cases, it may be a prerequisite for the commission of certain types of criminal acts;

3) to have a massive negative informational psychological impact due to the use of targeting technologies, content prioritization mechanisms and other PR tools prohibited for the dissemination of information by the authors;

4) to have a negative impact on the legal, political, financial culture of the population, as well as on the general level of morality.

At the same time, the presence of these torts in the system of administrative offenses is associated with: the mass nature of their commission; the procedural complexity of bringing persons distributing illegal content to administrative responsibility; the need to promptly restrict access to illegal content (which in some cases is implemented administratively, rather than judicially). As a result, the elevation of the investigated acts to the rank of crimes and the use of "criminal repression" tools against authors and distributors of illegal content, in our opinion, is excessive. Since the recognition of any socially harmful act as criminally punishable, if it is relatively widespread, as N.F. Kuznetsova correctly noted, it is criminologically and socially inexpedient ^{[18, p. 437]}.

The next sign of an administrative offense is illegality. In relation to the group of torts we are studying, illegality is characterized by the presence of both the requirements established by law for the order of information circulation, as well as measures of legal liability for non-compliance with them, and the rules of individual Internet platforms (social networks, audiovisual services, etc.), for violation of which there is a limitation of users' ability to use the functions provided by them. Thus, the sign of illegality in relation to the acts under study is characterized by both the presence of public law requirements, prohibitions, as well as measures of responsibility for their violation, and private law imposed by the owners of specific Internet platforms.

The next sign of an administrative offense is guilt. Within the framework of the topic under study, guilt is characterized by the attitude of the Internet user to the information materials posted and distributed by him; compliance with legal requirements on the part of legal entities – organizers of information dissemination, social networks, audiovisual services, etc. In our opinion, one of the evidences of the user's desire to disseminate information is the use of PR marketing tools, as a result of which the posted illegal content spreads to a large audience and can be included in the "news feed" of a specific socio-demographic group. The use of these tools indicates the foresight and desire of users to achieve the results of their illegal activities (distribution of illegal content in relation to a specific socio-demographic group, to a large audience, to people living in a particular region, etc.).

The next sign of an administrative offense is punishability. With regard to the studied group of offenses, in the text of various norms of the special part of the Administrative Code of the Russian Federation, there is a heterogeneous position of the legislator on fixing the qualifying sign of committing an administrative offense - "in" or "using information and telecommunications networks, including the Internet."

Of the 31 administrative offenses selected by the author, in the subject area of public relations studied by us, only in 9 cases legislative differentiation of administrative liability measures was carried out depending on the chosen place, method of committing an administrative offense – "in" or "using information and telecommunication networks, including the Internet" (Appendix No. 1). At the same time, in the remaining 22 administrative offenses, there is no differentiation of administrative responsibility on this basis, although their commission is also possible in the network space, which is confirmed by the judicial practice collected by the author. The described facts indicate a low degree of consistency in the construction of norms of the Special part of the Administrative Code of the Russian Federation and the absence of a unified approach to assessing the public danger of the same method, place of commission of administrative offenses.

The heterogeneity of the legal positions emerging in the norms of the special part of the Administrative Code of the Russian Federation is clearly seen in the analysis of administrative offenses provided for in part 1.1 of Article 6.13 "Propaganda of narcotic drugs, psychotropic substances or their precursors, plants containing narcotic drugs ..." and Article 6.13.1 of the Administrative Code of the Russian Federation "Propaganda of nitrous oxide".

These norms of administrative and tort legislation are designed to ensure the protection of emerging public relations from negative informational and psychological effects, namely, the neutralization of propaganda for the consumption, manufacture, production, etc. of narcotic drugs, psychotropic substances, etc. and nitrous oxide. The objective side of both types of offenses is expressed in the propaganda of the consumption of narcotic drugs, etc., and nitrous oxide. However, in Article 6.13 of the Administrative Code of the Russian Federation, there is a differentiation of measures of administrative responsibility and individualization of administrative punishment for propaganda carried out with the "use of the information and telecommunications network "Internet"", and in Article 6.13.1 of the Administrative Code of the Russian Federation there are no such distinctions. As a result, the punitive potential of the sanctions of Article 6.13.1 has been reduced by 5, and in some cases by 15 times, which is comparable in volume to the punishment provided for violation of Article 6.24 of the Administrative Code of the Russian Federation ("Violation of the prohibition of tobacco smoking, consumption of nicotine-containing products established by federal law ..."), although the degree of public danger of the compared offenses (6.13.1 of the Administrative Code The Russian Federation and 6.24 of the Administrative Code of the Russian Federation) and the legal legalization of the compared substances (nitrous oxide and tobacco) are different from each other.

An analysis of the operative parts of Rulings on cases of other administrative offenses related to the dissemination of illegal content also indicates an excessively humane approach by the courts to determining the amount of administrative punishment. Thus, for the dissemination of instructions on the homemade manufacture of explosives and explosive devices, the world court of the Perm Territory imposed punishment in the form of an administrative fine in the amount of 4 thousand rubles ^[19]. The Shebalinsky District Court of the Altai Republic also imposed minimum fines of 1 thousand rubles for the distribution of extremist materials ^[20]. For publicly displaying Nazi paraphernalia (committed on the user's personal page on the Vkontakte social network) The Sharlyk district court of the Orenburg region imposed an administrative fine in the amount of 1 thousand rubles ^[21].

Thus, in accordance with the nature and degree of public danger of these offenses, it is fair to conclude that the commission of an administrative offense "in information and telecommunications networks, including the Internet or using these technologies" requires a separate legal assessment. Based on what, the commission of an administrative offense related to the distribution of illegal content on the Internet:

1) may be determined by the court as a circumstance aggravating administrative liability;

2) or be the basis for differentiating measures of administrative responsibility in separate articles of the Administrative Code of the Russian Federation.

We agree with the position of V.E. Ruskevich, A.P. Dmitrienko and N.G. Kadnikov that the use of information and telecommunication networks, including the Internet, is not always a factor "a priori" increasing the degree of public danger of acts ^{[22, p. 590]}. Therefore, we propose the addition of Article 4.3 of the Administrative Code of the Russian Federation with the following circumstance aggravating administrative liability: "the commission of an administrative offense in information and telecommunications networks, including the Internet or using these technologies." However, this circumstance, depending on the nature and consequences of the committed administrative offense, according to the reasoned opinion of the judge, the official who appoints the administrative punishment, may not be recognized as a circumstance aggravating administrative responsibility.

The introduction of this norm will make it possible to differentiate administrative liability depending on the method and place of commission of an administrative offense – in or using information and telecommunications networks, including the Internet, and will also be a condition for individualizing punishment depending on the degree of public danger of the committed act.

As part of the conducted sociological survey of 100 employees of the internal affairs bodies, whose service experience in the territorial divisions of the Ministry of Internal Affairs of Russia is at least 5 years, it was revealed that:

1) the majority of respondents (81%) consider administrative offenses related to the distribution of illegal content on the Internet to be a sign of public danger;

2) this fact can be explained by the massive negative informational and psychological impact, as well as the procedural complexity of considering and attracting persons under the specified articles of the Administrative Code of the Russian Federation;

3) 83% of respondents consider it advisable to supplement Article 4.3 of the Administrative Code of the Russian Federation with the following sign aggravating administrative responsibility: "committing an administrative offense in information and telecommunications networks, including the Internet or using these technologies."

The analysis of the main signs of administrative offenses related to the distribution of illegal content, as well as administrative liability measures imposed for their commission, allowed us to come to the following conclusions:

1) a number of administrative offenses included in the group studied by the author have a sign of public danger, which is due to the possibility of illegal content: encroach on any of the objects of legal protection specified in Article 1.2 of the Administrative Code of the Russian Federation; be a prerequisite for the commission of certain types of crimes; have a massive negative informational and psychological impact on the individual psyche and public consciousness of network users The Internet;

2) the presence of a sign of public danger necessitates the adjustment of legislation on administrative offenses in terms of differentiation of administrative responsibility depending on the place, method of committing an administrative offense and individualization of punishment depending on the degree of public danger of the committed act. It is advisable to add the following circumstance to Article 4.3 of the Administrative Code of the Russian Federation, aggravating administrative liability: "the commission of an administrative offense in information and telecommunications networks, including the Internet or using these technologies," which will be applied at the discretion of the judge, the official who appoints the administrative penalty;

3) It is proposed to consider the number of criteria for measuring the degree of public danger of an act:

- views of illegal content by Internet users;

- "reactions" (including comments) of users in relation to the information being disseminated;

- "reposts" or other actions aimed at its further dissemination.

Appendix No. 1. "Table indicating administrative offenses related to the distribution of illegal content on the Internet"

Designations:

"+" - indicates the presence in the administrative and legal norm of a qualifying sign of committing an administrative offense in information and telecommunications networks (including the Internet) or using these technologies;

"-" indicates the absence in the administrative and legal norm of a sign of committing an administrative offense in information and telecommunications networks (including the Internet) or using these technologies.