Материал: disser_arhipov

113

provides not formal, but substantial approach to determination of whether some derivative work can be considered as a parody.

Let us return to the legal problematics of humor and satire. As S.V. Borisov and A.V. Zherebchenko state,

«application of criminal law on liability for crimes of extremist nature shall also consider… the provisions of the Declaration on freedom of political debate in the media»,157 in particular the ones which state that “humor and satire… allow high degree of exaggeration, even provocation, on condition that the society is not confused about the actual state of affairs”».158

In this case, as we can note in the context of the present paper, the semantic limits of law are built upon the criteria of confusing the society about the factual state of affairs.

One of the most prominent examples of determining the semantic limits of law in the communication that (as the court established – incorrectly) was alleged to be “unserious”, is presented by the practice of the European Court of Human Rights. The contents of the decision of ECtHR of 20 October 2015 on the case M’Bala M’Bala v. France (application No. 25239/13)159 highlight the following facts of the case:

«[i]n December 2008, the applicant, who is a comedian using the pseudonym “Dieudonné” and who has engaged in political activities, put on a performance in which he invited an

attribute of a parody as recognizability. See: Zykov S. The Problem of Attributing Parodies to Derivative Works: Isn’t It Time to Stop the Discussion? [Electronic resource] // Copyright and Neighbouring Rights. 2017. No. 4 – Access from legal reference system “ConsultantPlus” (accessed; 24.08.2019). That is why we would not accept the approach, since it does not include consideration of the issue of copyright, in particular on characters. The fact is that according to Item 7 Article 1259 of the Civil Code of the Russian Federation, the copyright applies to a part of the work, its title, and the character of the work, if by their nature they can be recognized as an independent result of the author’s creative work and meet the requirements set forth in Item 3 Article 1259 of the Civil Code of the Russian Federation. It is extremely difficult to avoid the creation of a derivative work from the character in the creation of a parody precisely in conditions where recognizability is a necessary quality of the parody.

157Borisov S.V., Zherebchenko A.V. Excitation of Hatred and Enmity, Humiliation of Human Dignity: Problems of Establishment and Implementation of Criminal Responsibility. Monograph / Edited by S.V. Borisov. M.: Jurisprudence, 2015.

–264 p. – Access from the legal reference system “ConsultantPlus” (accessed: 10.01.2018). – Para. 695 / 2233.

158Cit. by: Borisov S.V., Zherebchenko A.V. Excitation of Hatred and Enmity, Humiliation of Human Dignity: Problems of Establishment and Implementation of Criminal Responsibility. – Para. 703 / 2233

159Information on the ECtHR judgment of 20.10.2015 in the case of M’Bala M’Bala v. France (complaint No. 25239/13) [Electronic resource] // Bulletin of the European Court of Human Rights. – 2016. – No. 3. – Access from the legal reference system «ConsultantPlus» (accessed: 10.01.2018). [The English translation is provided according to the official translation of the case into English available here: http://hudoc.echr.coe.int/eng?i=002-10948].

114

academic who had received a number of convictions in France for his negationist and revisionist opinions, mainly his denial of the existence of gas chambers in concentration camps, to join him on stage at the end of the show. The applicant called up an actor wearing what was described as a “garment of light” – a pair of striped pyjamas reminiscent of the clothing worn by Jewish deportees, with a stitched-on yellow star bearing the word “Jew” – to award the academic a “prize for unfrequentability and insolence”. The prize took the form of a three-branched candlestick (the seven-branch candlestick being an emblem of the Jewish religion), with an apple crowning each branch. The incident was recorded by the police. In October 2009 the tribunal de grande instance found the applicant guilty of public insults directed at a person or group of persons on account of their origin or of their belonging, or not belonging, to a given ethnic community, nation, race or religion, specifically in this case persons of Jewish origin or faith. The court sentenced him to a fine of EUR 10,000, awarding a token euro in damages to each civil party. The Court of Appeal upheld the judgment and the Court of Cassation dismissed the applicant’s appeal on points of law».

The cornerstone part of the decision that directly relates to the question in consideration is reflected in the following paragraph:

«The Court thus took the view that, during the offending scene, the performance had no longer constituted entertainment but had taken on the appearance of a political meeting. The applicant could not claim, in the particular circumstances and in the light of the whole context of the case, that he had acted in his capacity as an artist with the right to express himself using satire, humour and provocation. In the guise of a comic sketch he had called upon one of the best known French negationists, who had been convicted a year earlier for calling into question crimes against humanity, in order to pay tribute to him and give him a platform. Thus, in the context of a preposterous and grotesque mise en scène, he had brought onto the stage an actor, dressed as a Jewish deportee in a concentration camp, who awarded a prize to the academic. In this promotion of negationism, through the key position given to the guest’s appearance and the degrading portrayal of Jewish deportation victims faced with a man who had denied their extermination, the Court saw a demonstration of hatred and anti-Semitism and support for Holocaust denial. In the Court’s view, the expression of an ideology which ran counter to the basic values of the Convention, as stated in its Preamble, namely justice and peace, could not be considered a performance which, even if satirical or provocative, fell within the protection of Article 10 of the Convention».160

Based on the methodological approach suggested in this paper, it can be said that the ECtHR, therefore, defined the semantic limits of law applicable to the situation in consideration.

160 Ibid.

115

§ 3.7. Materials that lost their relevance in the context of the “right to be forgotten”

The areas of artistic (imaginary) and unserious (humor and satire), which were discussed earlier, and the area of the games, which was discussed in the previous paragraph and will be discussed further, are not the only relevant subjects of study. Materials that can be called “historical” or, more broadly, no longer relevant, are also directly related to the problem of the semantic limits of law. As was shown earlier, problems with the interpretation of legal texts, aimed, for example, at setting restrictions on the dissemination of information, may be relevant not only for fiction, but also for reality – in terms of the events of bygone days, many of which are no longer relevant for the present.

As an illustration of the fact that this aspect of the problem is already beginning to be realized in the legislation, one can draw attention to how the “right to be forgotten” is now implemented in the Information Law,161 embodied in Article 10.3 of the specified normative legal act. This article imposes on the operator of the search engine to which this rule applies according to the criterion of targeting,162 the obligation to stop, following a request of individual, the issuance of information allowing access to information about the applicant, which is, inter alia, «irrelevant, no longer relevant for the applicant due to subsequent events or actions of the applicant, except for information on events containing indications of criminal offenses, terms of criminal responsibility which have not expired, and information on the commission of a crime by a citizen, for which his conviction has not

161It should be noted that the conventional title “right to be forgotten” as applied to the special norm on the obligations of a search engine operator, which in Russia is more important than the special legal norm in the field of public-law regulation of relations on the Internet, does not fully coincide with a similar “right to be forgotten” in the GDPR, which is now interpreted as a special norm of legislation on personal data. However, the source of both approaches is common – the case of Mario Costeja Gonzalez, ECtHR. See: Google Spain SL and Google Inc. v. the Spanish Data Protection Agency (AEPD) and Mario Costeja Gonzalez [Electronic resource] // Bulletin of the European Court of Human Rights. Russian edition. – 2014. – No. 9. – P. 22–23. – Access from the legal reference system «ConsultantPlus» (accessed: 10.01.2018).

162Article 10.3 of the Information Law, by virtue of a direct instruction, applies to search engine operators who distribute Internet advertising aimed at consumers located in the territory of the Russian Federation. Such an indication in itself is one of the discussion approaches to the definition of jurisdiction on the Internet, but the consideration of these special issues of information law is beyond the scope of this paper.

116

been lifted or cancelled». It can be said that this article, in a certain sense, contains an example of individual criteria for the semantic limits of law: loss of meaning due to subsequent events or actions of the applicant. At the same time, the semantic limits of law, in this sense, do not go beyond the specified information about acts in the field of criminal law practice. An example of the “right to be forgotten” seems to be very relevant for this part of the study. With regret we are forced to note that the explanatory note to the draft federal law, which, as a result, was introduced into Article 10.3 of the Information Law, does not disclose approaches to how to understand other signs of «irrelevance» of information.163

§ 3.8. Problems of legal separation between gambling games and games that cannot be considered as the gambling ones

As another area that can serve as a source for examples, we can recall the problem of determining whether this or that game is gambling from the point of view of law or not. The problem of differentiation between gambling and non-gambling, at first glance, is narrow and sectoral. However, at the same time, the philosophical and legal dimension corresponding to the subject of the present study can be seen in this problem too. In most jurisdictions and cultures, gambling is viewed as a sociocultural practice that has negative value and requires the intervention of the legislator to impose prohibitions or, at minimum, restrictions. In this connection, the problem of the legal qualification of games as gambling and non-gambling arises, complicated by the ambiguity of the words “gambling” and “game” in ordinary language. In addition, there is another facet of the problem of legal

163 Explanatory note for the Draft Law No. 804132–6 «On Amendments to the Federal Law «On Information, Information Technologies and Information Protection» and Articles 29 and 402 of the Civil Procedural Code of the Russian Federation» with regard to the establishment of obligations of search system operators when distributing information about citizens» [Electronic resource] // Legislative support system (SOZD). – [Site]. – URL: http://sozd.parliament.gov.ru/bill/804132–6 (accessed: 21.02.2019).

117

regulation of gambling as such. In the legal systems of many countries of the world, relations connected with the organization of gambling and participation in them are considered as an acceptable subject of legal regulation from the point of view of prohibitions and restrictions. At the same time, the requirements arising from these relations are often not subject to judicial protection by direct indication of the law. This aspect is also directly related to the subject of this study.

Before turning to the consideration of game activities that are not related to gambling, we shall give a brief analysis of the situation with the regulatory regulation of gambling games themselves – this area is a very good example of assessing the subject of social relations in terms of criteria of unseriousness and fantasy, which will be described in more detail later, in the context of the methodology of the present study.

The legal policy reflected in the current Russian legislation restricts and strictly regulates the organization and conduct of gambling. Unlike cultural, ethological and other interpretations,164 the legislative definition of gambling does not directly link this process with the psychological phenomenon of “hazard” as such (otherwise, almost any game could be considered gambling). According to Item 1 Article 4 of the Federal Law of 29.12.2006 No. 244-FZ,165 a gambling game is a risk-based agreement about prize concluded between two or more participants of such a game between themselves or with the gambling organizer according to the rules established by the gambling organizer. At first glance, this definition can or should be applied to a game as such (for example, playing poker or playing roulette). However, in reality, this definition implies the legal qualification not of the game as such, but of an agreement on how to play the game. In the context of the present work, there is an obvious parallel between the fact that both

164See e.g.: Ponukalina O.V. Consumer Society Games: Daily Occurrence Designing // Proceedings of Saratov State Technical University. 2009. No.1. P. 1–7; Akhundova L.A., Azarova E.A. Gambling as a Form of Non–Chemical Addiction in Modern Society // Innovative science. 2016. No. 4–5 (16). P. 91–93.

165On state regulation of gambling activities and on amendments to some legislative acts of the Russian Federation [Electronic resource]: Federal Law No. 244–FZ of 29.12.2006 (ed. of 25.12.2018). – Access from the legal reference system «ConsultantPlus» (accessed: 21.02.2019).