Материал: disser_arhipov

103

necessity to interpret the term “public dissemination” used in the CAV narrowly. In this context we also can remember the Criminal Code of the Russian Federation (hereinafter, the “RF CrC”). Part 1 Article 354.1 of the RF CrC (“Rehabilitation of Nazism”) provides, inter alia, criminal liability for denial of the facts established by the verdict of the International Military Tribunal for trial and punishment of the major war criminals of the European Axis, justification of the crimes established by this verdict, but equally – dissemination of knowingly false information on the activity of the USSR during the World War II made publicly. In principle, each of the elements of the objective side as reflected in the disposition of this legal rule may be reconsidered in the context of the problem of this research paper. However, we can sharpen attention on two most relevant aspects of the legal interpretation that relate to the terms of “denial of facts” and “knowingly wrong information”. Could they be applied to, for example, artistic works or interactive games that allow the development of the plot within the in-game world under the flow of “alternative history”?

§ 3.4. Legal qualification of the objective side of crimes committed with the use of fake weapons

In addition, it is obvious that the legal assessment of information, in the broad sense of the word, can have legal significance for virtually any other crimes, not necessarily related to the information directly (this, incidentally, reflects the fundamental role of social communication, including from the point of view of theoretical sociology). A variety of crimes can serve as an example. For example, Item 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 22.03.1966 No. 31 “On judicial practice in cases of open theft and robbery”, which is by this day invalid, states that

104

«[i]f the perpetrator has threatened with knowingly unsuitable weapons or imitation of weapons, such as a fake gun, a toy dagger (emphasis added – V.A.), etc., without intending to use these items to cause bodily harm dangerous to life, his actions (in the absence of aggravating circumstances) should be qualified as a robbery, provided for by Part 1 Article 146 of the Criminal Code of the RSFSR».

Item 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 27.12.2002 No. 29 (ed. of 16.05.2017) “On judicial practice in cases of theft, open theft and robbery”, which is in force at the time of writing, contains the following wording:

«If a person threatened with knowingly unsuitable or unloaded weapons or objects imitating weapons (hereinafter emphasis added – V.A.), for example, a fake gun, decorative weapons, weapon-toy, etc., without intending to use these objects to cause harm dangerous to life or health, his actions (in the absence of other aggravating circumstances provided for as signs of crime), taking into account the specific circumstances of the case, should be qualified as a robbery, liability for which is provided for by Part 1 Article 162 of the Criminal Code of the Russian Federation, and if the victim understood that he or she was under threat of being attacked by unsuitable or unloaded weapons or objects imitating weapons, the act is qualified as open theft».

Regardless of the criminal law assessment of the change in approach to the cases under consideration, we note that the problem in criminal law has been recognized for a long time, and that the last of the cited acts also contains a criterion of the subjective perception of the victim, echoing the “theory of consent” for the interpretation of the “magic circle” in computer games proposed by J. Fairfield (see § 5 Chapter 2 of this study).

In addition, the assessment of these cases in the modern doctrine of criminal law is also very typical. As noted by R.S. Hasanov,

«[i]n such cases, what is of crucial importance for the correct qualification is what the subject (weapon or layout) and the intent of the attacker were in fact (hereinafter emphasis added – V.A.). If the qualification of the threat to the attacker by an unsuitable weapon or a mock-up of the weapon under Part 1 Article 162 of the Criminal Code of the Russian Federation is

105

logical (the victim considers it to be a real weapon), then this cannot be said about the cases of threat by a suitable weapon, even if the person is not going to use it to cause harm. If an unloaded weapon in terms of the degree of danger (ability, or rather inability, to cause harm) may be closer to the fake weapon, then the loaded weapon creates an immediate and real threat (actual, not imagined by the victims) to the life and health of the victim. To cause real harm in this case, it is enough to pull the trigger, which under certain conditions can be done even instinctively».140

§ 3.5. Discussions in the area of law related to the appropriateness limits of artistic creativity

Let us turn to the method of analytic philosophy, taking the quotation just given as a reference. Of course, it is in this particular case that a special philosophy is hardly required in order to explain what the words that the author used – “real”, “factual”, “imaginary” – and common sense philosophy is enough. After all, the quote refers to the harm to life and health, and this is understandable. We note, however, that if it were even about property (not to mention information), the interpretation of these words in a legal context would be quite a challenge – in fact, the present study is devoted to its resolution. However, importantly, the nature of the problem is the same – what is considered “serious” (“real”, “factual”, etc.) for the purposes of interpretation and application of law, as well as lawmaking. We believe that the aforesaid examples from the field of criminal law, reflecting the problems of perception of information, are quite enough as an illustration for a study, the subject of which is neither administrative nor criminal law issues per se.

140 Hasanov R.S. The Problems of Classification and Proving of Armed Assaults [Electronic resource] // Criminal Law. 2015. No. 1. P. 35–39. – Access from the legal reference system «ConsultantPlus» (accessed: 10.01.2019). – Para. 68. It should be noted that in addition to open theft and robbery, from the point of view of criminal law, this problem is also relevant to the crime of hooliganism. According to Item 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation, 15.11.2007 No. 45 “On judicial practice in criminal cases of hooliganism and other crimes committed out of hooliganism”, “the use in the course of hooliganism of unloaded, defective, unsuitable weapons (e.g., training weapons) or decorative, souvenir weapons, weapons toys, etc., gives grounds for qualification of the acts committed under paragraph ‘a’ of Part 1 of Article 213 of the Criminal Code of the Russian Federation” (i.e. with the use of weapons or objects used as weapons). The doctrine notes the inconsistency of the Supreme Court's position on this issue – see e.g. Abubakirov, F.M. Qualifications of Inflicting Damage to Health with Application of Weapon or Subjects Used as Weapon // Russian Investigator. 2016. No. 13. P. 17–20. However, this “inconsistency”, in fact, can be seen as an additional confirmation of the topicality of the issue at hand.

106

Reservations about “artistic” or “historical” in positive law are one side of the issue. We also have very interesting empirical material, on the example of which we can also raise the question of the limits of artistic creativity. This suggests a different view: the argument begins not with the question of the [semantic] limits of law, but on the contrary, with the question of the limits of creative freedom. This is a fairly well known problem of freedom of treatment of the author with real and historical material, for example, in the case of the creation of works devoted to real historical figures, but related to an artistic genre. From the legal point of view, these issues are associated, first, with the civil law institution of non-material values. Can a literary or cinematographic work of art, rather than documentary, for example, in principle, violate the right of the real subject or his heirs to honor, dignity and good name? Can the creative and artistic nature of the work in relation to a well known person give immunity to the author from the application of personal data legislation? What about extremism legislation? It should be noted that such questions are also particularly actualized in the modern information culture. In conditions when the means of production, search, transmission and distribution became publicly available, practices related to artistic or quasi-artistic (i.e. works created by nonprofessional users) creativity, as well as their discussion and, as a result, controversies, have intensified. Accordingly, the contradictions against the background of legal uncertainty regarding approaches to solving the problem of the semantic limits of law in theory and in practice have become aggravated. Let us consider a few practical examples.

Since this study focuses precisely on modern information culture, it would be quite legitimate to take as one example comics as a typical example of modern mass art. So, in 2019, the publishing house “Komilfo”141 refused to publish one of the chapters of the

141 See: Komilfo Publishing House [Electronic resource]. – [Site]. – URL: http://www.komilfobook.ru/ (accessed: 01.15.2019).

107

comic book about Deadpool,142 making reference to a consultation with an expert of the Federal Service for Supervision of Consumer Rights Protection and Human Welfare.143 The question was related to one of the stories,

«in which it is told about the fight of Deadpool against a neo-Nazi named Baron Zemo. Part of the comic book was written from the point of view of a negative character who talks about the greatness of the white race, praises Hitler and talks about the need for a Holocaust. In parallel, he restores the Ku Klux Klan and is preparing a provocation to unleash an interracial war in the United States. Before the final battle, Deadpool changes into a Hassidic Jewish costume and calls Baron Zemo “a Nazi piece of [removed for ethical reasons].” This release is accompanied by the author’s epilogue, where David Lafem writes about a negative character: “The worst thing is that there are plenty of them in the real world.” In addition, he advises readers to “google about the Holocaust”, warning that it will be “not funny”».144

As mass-media mention,

«despite the obvious anti-Nazi thrust of history, the expert of Rospotrebnadzor said that from the point of view of Russian legislation,145 the publication of such a comic book is unacceptable. “The expert pointed to the presence of Nazi symbols and unjustified by the plot

142Deadpool is a known since the 1990s. Marvel Comics character in the comic book universe (by Fabian Nitsieza), an anti-hero with a cynical sense of humor. Repeatedly found in film and television films, computer games and, in fact, comics. See: Deadpool // Marvel. – [Electronic resource]. – [Site]. – URL: https://www.marvel.com/characters/deadpool-wade-wilson (accessed: 01.15.2019).

143According to Russian law, with some exceptions covered in this study, Rospotrebnadzor is not among the bodies that conduct informational product expertise, but it does not reduce the value and representativeness of the discussion that has arisen, especially with regard to subsequent historical examples from the US practice.

144See: Chernykh A., Karpenko M., Mironova K. Rospotrebnadzor Defeated a Superhero. Part of the Comic Book about Deadpool is not Allowed to Print in Russia // Kommersant. 15.01.2019, pp. 5. – [Electronic resource]. – [Site]. – URL: https://www.kommersant.ru/doc/3854153 (accessed on 15.01.2019); Russia Refused to Allow a Part of the Deadpool Comic Book to be Printed (in Russian) // Lenta.Ru. January 15, 2019 – [Electronic resource]. – [Site]. – URL: https://lenta.ru/news/2019/01/15/deadpool/ (accessed: 15.01.2019).

145In the meantime, we note that this once again proves how useful the participation of lawyers would be in content examination, since the professional competence of specialists from other fields of knowledge does not include the interpretation of legal norms – the admissibility or inadmissibility of publication is determined on the basis of not only expert assessment of content but also from the system of legal norms, the legal positions of the Constitutional Court and other components of the legal system that define the limits to the exercise of constitutional rights, including the right to freedom of speech and disseminating of information. In addition, the term “propaganda,” as it is used in the law, referred to below, is a special legal term that does not necessarily coincide with the meaning that is attached to it in non-legal sciences, although it overlaps with it (the same good example as in the case of "gambling" – much that is "gambling" from the point of view of psychology, is not so from the point of view of the current Russian legislation at the time of writing this work). It’s another matter if symbols are used in the comic book that are confusingly similar to the symbols of Nazi and other prohibited organizations – in this case, from a formal legal point of view can, we indeed can speak about a liability under Art. 20.3 of the Administrative Code of the Russian Federation, but we have already considered this issue separately.