Responsibility for "comments"
On the Internet, with his written communication on forums and blogs, there are a lot of controversial situations because of the comments left there. The courts because of them for various reasons are not uncommon even now, and in the future they may become even more. These reasons are very different - most often it is the protection of honor and dignity, but there are also exotic, such as "extremism" or violation of the copyright on the comment left by someone.
As a rule, in such conflicts, the first thing the disputants turn to is copyright . There are sometimes originals who threaten to sue the forum opponent for quoting not in the context that they like. There are also forum owners who provide their resources with the inscription that they own all the “exclusive rights” to those comments left by users. Naturally, all these ominous warnings of a jigger are not worth it, since quoting from us is allowed by law, and in order to receive “ exclusive rights ”, the forum owner must enter into a licensing agreement with the commentator. The only thing that a site owner can claim is the “right of the database manufacturer”, which we wrote about quite recently.
However, there is one more reason why copyright law is not applicable in the case of comments. The fact is that a normal, “average” forum comment can hardly be considered a copyrighted work. The function of forum correspondence is purely informational, with the exception of certain specific situations. True, it is possible to determine what is before us - “informational material” or still a creative work — only in each specific case. In addition, the problems that may arise when “sharing” copyrighted content is a topic for another conversation. Therefore, today we will not touch them, and limit ourselves to those cases where copyright is not violated.
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We also recently wrote about the main law regulating information legal relations - “ On Information, Information Technologies and Protection of Information ”. This is the basic law that regulates the dissemination of informational messages, to which, according to the conditions of our task, comments also apply. It describes the basic principles for disseminating information , such as the freedom to search for it, receive it, transmit it, produce it and distribute it in any legal way or if it is unacceptable to collect, store, use and disseminate information about the private life of a person without his consent. However, in fact, these are general norms that duplicate the corresponding constitutional principles of freedom of speech and privacy. And the most "running" article of the law, the most often used in practice - is the seventeenth, which describes the issues of responsibility for the information posted on the network.
In addition to general phrases that violation of the requirements of the law entails “disciplinary, civil, administrative or criminal liability in accordance with the legislation of the Russian Federation”, it also contains a clause that can exclude civil liability:
3. In the event that the distribution of certain information is restricted or prohibited by federal laws, civil liability for the distribution of such information shall not be borne by the person providing the services:
This provision exempts from punishment those who did not know and could not know about the unlawful nature of the distributed or stored content, for example, providers or hosters, as well as site owners for comments left by users. However, only from civil liability. There is one more nuance: the law “On Information ...” does not apply to “ intellectual property ”, so it does not absolve from responsibility for “ copyright ”. If we are talking about criminal responsibility, then Article 28 of the Criminal Code of the Russian Federation, called “Innocent harm”, is applicable: or did not foresee the possibility of socially dangerous consequences and, according to the circumstances of the case, should not or could not have foreseen them. ”
The Code of Administrative Offenses of “ innocent causation ” does not provide, however, it establishes the general principles of “presumption of innocence” (Article 1.5) and the form of guilt in the form of intent and negligence (Article 2.2 ):
Based on this, we can conclude that the innocent commission of an offense is a situation where the perpetrator could not and should not have foreseen the possibility of the occurrence of harmful consequences. As you can see, the general principle of accountability is the same, regardless of its type.
Another frequently used means of accountability is to equate Internet sites with the media . This is especially common in the field of criminal proceedings: criminal liability for certain actions is provided only if they are committed “ publicly ” or “ using the media ”. The solution lies on the surface: once the messages on the Internet are accessible to an unlimited circle of people, they are a “mass media”. Very obvious, but wrong conclusion.
The “ media ” is a very special organization, with additional responsibilities and its own legal regime. And by its privileges, for example, the right to disclose a source of information only by a court decision, or to demand the provision of relevant information from the authorities. And there is even a separate article in the Criminal Code for obstructing the activities of journalists. However, those who offer to equate the Internet to the media, for some reason, are not eager to give all these rights to ordinary bloggers or site owners. Instead, they only want to hold them accountable “as media”. It turns out somehow unfair.
The main contingent of “prohibitors” is the people of the older generation who have something written on the Internet that is firmly associated with the media, since “the whole world can read it”. The fact that “the whole world” is, in general, a dozen friends of a blogger, they somehow do not understand. Let us recall the famous “ Terentyev case ”, when the Syktyvkar blogger received a suspended sentence for commenting in which he was unflattering about the police and offered to burn “wrong cops” on one of the Syktyvkar squares. If the valiant "organs" were not excited, then the comment would have read a maximum of a hundred people. But the conditional sentence that Terentyev received for his ill-fated comment has already ended - and his “work” lives and thunders throughout the country, enriching the network lexicon with the expressions “wrong cops” and “Stefanovskaya Square”.
It was even funnier with the blog of Artemy Lebedev, in which the famous designer has the habit of swearing. A certain political scientist Mikhail Kovalev sent a statement to the police to bring Lebedev to justice for this. Of course, the story ended with zilch: a criminal case was denied. Including - because the blog is not a mass medium. The classic situation: “where it turned, it went there”.
So, going back to our mass media: disputes over whether to refer the Internet to them have been going on for a long time, with varying success. Not so long ago, in June, the Supreme Court clarified the practice of applying the Law “On Mass Media”, excluding the possibility of bringing to responsibility “for the Internet as for the media”: “ Since there are no media products when disseminating media through Internet sites, then, under current legislation, websites on the Internet are not subject to mandatory registration as mass media. This means that it is impossible to make persons disseminating mass media through websites on the Internet accountable for the production or distribution of products of an unregistered mass media. Persons who have committed violations of the law in the dissemination of mass media through websites on the Internet that are not registered as mass media, bear criminal, administrative, civil and other liability in accordance with the legislation of the Russian Federation without taking into account the features stipulated by the legislation on mass media. . "
If we are talking about criminal liability, you can also refer to the third article of the Criminal Code of the Russian Federation, which directly prohibits the use of criminal “by analogy”, that is, in cases where the specific situation is not directly provided for in the law. Sometimes the Internet is also considered as a “ public place ”, and the statements in it are considered as “ committed publicly ”. This contributes to the ambiguity of the interpretation of "publicity" in the texts of regulatory acts. Somewhere, for example, in the fourth part of the Civil Code (Art. 1270 ), this concept is connected precisely with the place open to public access, and putting it on the Internet is called “ communicating to the public ”. In the same way, this word is understood in the definition of a “public event” from the law “On meetings, rallies, demonstrations, processions and pickets”, “public hearings” from the law “On general principles of local government organization ...” and some others. However, in some disclosure acts, “ publicity ” is understood simply as accessibility to an indefinite circle of persons. Directly, this concept is not defined in the laws, so everyone understands him who is that way, depending on whether you need to bring to justice or vice versa, to justify. And ambiguities in these issues will persist for a long time.
As a rule, in such conflicts, the first thing the disputants turn to is copyright . There are sometimes originals who threaten to sue the forum opponent for quoting not in the context that they like. There are also forum owners who provide their resources with the inscription that they own all the “exclusive rights” to those comments left by users. Naturally, all these ominous warnings of a jigger are not worth it, since quoting from us is allowed by law, and in order to receive “ exclusive rights ”, the forum owner must enter into a licensing agreement with the commentator. The only thing that a site owner can claim is the “right of the database manufacturer”, which we wrote about quite recently.
However, there is one more reason why copyright law is not applicable in the case of comments. The fact is that a normal, “average” forum comment can hardly be considered a copyrighted work. The function of forum correspondence is purely informational, with the exception of certain specific situations. True, it is possible to determine what is before us - “informational material” or still a creative work — only in each specific case. In addition, the problems that may arise when “sharing” copyrighted content is a topic for another conversation. Therefore, today we will not touch them, and limit ourselves to those cases where copyright is not violated.
')
The Law "On Information ..." and others
We also recently wrote about the main law regulating information legal relations - “ On Information, Information Technologies and Protection of Information ”. This is the basic law that regulates the dissemination of informational messages, to which, according to the conditions of our task, comments also apply. It describes the basic principles for disseminating information , such as the freedom to search for it, receive it, transmit it, produce it and distribute it in any legal way or if it is unacceptable to collect, store, use and disseminate information about the private life of a person without his consent. However, in fact, these are general norms that duplicate the corresponding constitutional principles of freedom of speech and privacy. And the most "running" article of the law, the most often used in practice - is the seventeenth, which describes the issues of responsibility for the information posted on the network.
In addition to general phrases that violation of the requirements of the law entails “disciplinary, civil, administrative or criminal liability in accordance with the legislation of the Russian Federation”, it also contains a clause that can exclude civil liability:
3. In the event that the distribution of certain information is restricted or prohibited by federal laws, civil liability for the distribution of such information shall not be borne by the person providing the services:
- or on the transfer of information provided by another person, subject to its transfer without changes and corrections;
- or to store information and ensure access to it, provided that this person could not know about the illegality of the dissemination of information.
This provision exempts from punishment those who did not know and could not know about the unlawful nature of the distributed or stored content, for example, providers or hosters, as well as site owners for comments left by users. However, only from civil liability. There is one more nuance: the law “On Information ...” does not apply to “ intellectual property ”, so it does not absolve from responsibility for “ copyright ”. If we are talking about criminal responsibility, then Article 28 of the Criminal Code of the Russian Federation, called “Innocent harm”, is applicable: or did not foresee the possibility of socially dangerous consequences and, according to the circumstances of the case, should not or could not have foreseen them. ”
The Code of Administrative Offenses of “ innocent causation ” does not provide, however, it establishes the general principles of “presumption of innocence” (Article 1.5) and the form of guilt in the form of intent and negligence (Article 2.2 ):
Based on this, we can conclude that the innocent commission of an offense is a situation where the perpetrator could not and should not have foreseen the possibility of the occurrence of harmful consequences. As you can see, the general principle of accountability is the same, regardless of its type.
Media law
Another frequently used means of accountability is to equate Internet sites with the media . This is especially common in the field of criminal proceedings: criminal liability for certain actions is provided only if they are committed “ publicly ” or “ using the media ”. The solution lies on the surface: once the messages on the Internet are accessible to an unlimited circle of people, they are a “mass media”. Very obvious, but wrong conclusion.
The “ media ” is a very special organization, with additional responsibilities and its own legal regime. And by its privileges, for example, the right to disclose a source of information only by a court decision, or to demand the provision of relevant information from the authorities. And there is even a separate article in the Criminal Code for obstructing the activities of journalists. However, those who offer to equate the Internet to the media, for some reason, are not eager to give all these rights to ordinary bloggers or site owners. Instead, they only want to hold them accountable “as media”. It turns out somehow unfair.
The main contingent of “prohibitors” is the people of the older generation who have something written on the Internet that is firmly associated with the media, since “the whole world can read it”. The fact that “the whole world” is, in general, a dozen friends of a blogger, they somehow do not understand. Let us recall the famous “ Terentyev case ”, when the Syktyvkar blogger received a suspended sentence for commenting in which he was unflattering about the police and offered to burn “wrong cops” on one of the Syktyvkar squares. If the valiant "organs" were not excited, then the comment would have read a maximum of a hundred people. But the conditional sentence that Terentyev received for his ill-fated comment has already ended - and his “work” lives and thunders throughout the country, enriching the network lexicon with the expressions “wrong cops” and “Stefanovskaya Square”.
It was even funnier with the blog of Artemy Lebedev, in which the famous designer has the habit of swearing. A certain political scientist Mikhail Kovalev sent a statement to the police to bring Lebedev to justice for this. Of course, the story ended with zilch: a criminal case was denied. Including - because the blog is not a mass medium. The classic situation: “where it turned, it went there”.
So, going back to our mass media: disputes over whether to refer the Internet to them have been going on for a long time, with varying success. Not so long ago, in June, the Supreme Court clarified the practice of applying the Law “On Mass Media”, excluding the possibility of bringing to responsibility “for the Internet as for the media”: “ Since there are no media products when disseminating media through Internet sites, then, under current legislation, websites on the Internet are not subject to mandatory registration as mass media. This means that it is impossible to make persons disseminating mass media through websites on the Internet accountable for the production or distribution of products of an unregistered mass media. Persons who have committed violations of the law in the dissemination of mass media through websites on the Internet that are not registered as mass media, bear criminal, administrative, civil and other liability in accordance with the legislation of the Russian Federation without taking into account the features stipulated by the legislation on mass media. . "
If we are talking about criminal liability, you can also refer to the third article of the Criminal Code of the Russian Federation, which directly prohibits the use of criminal “by analogy”, that is, in cases where the specific situation is not directly provided for in the law. Sometimes the Internet is also considered as a “ public place ”, and the statements in it are considered as “ committed publicly ”. This contributes to the ambiguity of the interpretation of "publicity" in the texts of regulatory acts. Somewhere, for example, in the fourth part of the Civil Code (Art. 1270 ), this concept is connected precisely with the place open to public access, and putting it on the Internet is called “ communicating to the public ”. In the same way, this word is understood in the definition of a “public event” from the law “On meetings, rallies, demonstrations, processions and pickets”, “public hearings” from the law “On general principles of local government organization ...” and some others. However, in some disclosure acts, “ publicity ” is understood simply as accessibility to an indefinite circle of persons. Directly, this concept is not defined in the laws, so everyone understands him who is that way, depending on whether you need to bring to justice or vice versa, to justify. And ambiguities in these issues will persist for a long time.
Source: https://habr.com/ru/post/109330/
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