Материал: disser_arhipov

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relationship between the game company and the user), is essentially a discussion of the boundaries of the “magic circle” in the terminology of J. Huizinga or, in the terminology of this study, the conceptual or the semantic limits of law. On the one hand, the empirical fact that these contradictions persist in practice should be regarded as another confirmation of the universal problem being postulated. On the other hand, the solution to this problem, which is being developed in the framework of this work, will make it possible to structure and substantiate a systematic approach to the application and interpretation of law, as well as to law-making in this area.

§ 3. Interconnection between legal collisions of game activity in digital environment and other similar collisions

A systemic view of law enforcement practices in today’s socio-cultural and technological environment suggests that the problems faced by users and producers of multiplayer computer games are, in fact, a cross-section of broader problems. At the moment, in various legal systems of the world (Russia is no exception), we can already say that a corpus of law enforcement practice has been formed, which determines the formulation of the problem of the semantic limits of law. First of all, it is about those cases in which the application of law or individual approaches to the interpretation of legal norms are intuitively perceived as wrong due to “absurdity”. More details on absurdity as a category related to law, as well as on the “doctrine of absurdity” in the system of approaches to the interpretation of law will be found in Chapter 2 of this study, related to the methodology of solving the problem of semantic limits of law. Here we should also note that such cases have been known in their own right for a long time (perhaps one of the most vivid mythological and historical examples could be the order of Xerxes to punish the sea, but such an example can be justified only from the naive-modern point of view,

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excluding the context and other circumstances of the situation109). Selections of curious, funny or otherwise unconventional judgments from the Anglo-American legal system are known.110 The nature of the system, multiplied by perceptions of the impossibility of refusing judicial protection, has from time immemorial led to various bold (sometimes “bold”) turns. There is no doubt that civil law is also rich in various examples of law enforcement that involves such facts or common sense arguments, but the creation of compilations of such solutions has not yet become a cultural phenomenon of the modern Internet.111 An interesting selection of bright and non-standard cases (and real, not hypothetical), where virtual property also found a place, is presented by S.L. Budylin in the

109Thus, D. Briquel, from the point of view of facts, notes that, according to Herodotus, in addition to carving the sea, Xerxes ordered to behead the supervisors for the construction of the bridge over the Hellesport, and this may already slightly change the overall assessment of what happened. In addition, the author proposes to evaluate the Xerxes’ actions in the context of the prevailing in the social reality of the time notions about the gods and heroes. «The Persian king Xerxes, when he attacked Greece in 480 B.C., built a bridge over the Hellespont which was destroyed by a storm. His behavior was interpreted by Greek observers as an act of hubris, the intolerable pride of a human who could not accept his limits. But the true meaning was quite different: according to ideas which go back to Indo-European prehistory, a hero had to prove his value by overcoming the opposition of water. This was a consequence of the concept of “fire in water” , which can be reconstructed from many parallels outside Iran– e.g. Rome, Ireland and even Greece». See: Briquel D. The Punishment of the Hellespont by Xerxes: Perception of Religious Behaviour of the Enemy in Conflict Situations [Electronic resource] // Graeco-Latina Brunensia. – 2016. – No. 2. – P.

51.– URL: https://digilib.phil.muni.cz/handle/11222.digilib/136219 (accessed: 28.01.2019). In the light of the methodology of this work, this example may be disclosed as follows: the punishment of the sea (leaving out the consideration of beheadings of those who organized the construction of the bridge) seems absurd, including from a legal perspective, now but may not have been absurd at that time. The reason is in the changes related to the subjective-objective socially constructed reality.

110There is a variety of selection of this kind in the Internet. See e.g.: Roberts W. The Dumbest Lawsuits in Recent History [Electronic resource] // Ranker. – [Site]. – URL: https://www.ranker.com/list/the-13-dumbest-lawsuits-in-recent- history/williammtx (accessed: 28.01.2019); Unger R. 25 Insane Court Cases That Never Should Have Made It To Court [Electronic resource] // MoneyVersed. – [Site]. – URL: http://moneyversed.com/absurd-court-cases/ (accessed: 28.01.2019); 10 Weird and Wonderful Cases Every Law Student Should Know About [Electronic resource] // Oxford Royale Academy. – [Site]. – URL: https://www.oxford-royale.co.uk/articles/weird-wonderful-law-cases.html (accessed: 28.01.2019) etc. What is interesting, the following case is also mentioned as “weird and wonderful”: R v Dudley and Stephens (1884) 14 QBD 273 DC, this was one of the cases that laid foundation to “The Case of Speluncean Explorers” by L.L. Fuller (см.: R v Dudley and Stephens (1884) 14 QBD 273 DC [Electronic resource] // The University of Texas at Austin. – [Site]. – URL: https://la.utexas.edu/users/jmciver/357L/QueenvDS.PDF, accessed: 28.01.2019). The following case is also noted: Leonard v. Pepsico, Inc., 88 F.Supp. 2d 116, (S.D.N.Y. 1999) aff’d 210 F.3d 88 (2d Cir. 2000) (см.: Leonard v. Pepsico, Inc., 88 F.Supp.

2d 116, (S.D.N.Y. 1999) aff’d 210 F.3d 88 (2d Cir. 2000) [Electronic resource] // Justia. – [Site]. – URL: https://law.justia.com/cases/federal/district-courts/FSupp2/88/116/2579076/, accessed: 28.01.2019). In the latter, the court’s reasoning constantly mentions the dichotomy of “serious” – “non-serious” in relation to the perception of advertising and offers, which suggested that a certain number of points in the marketing action could be used to purchase a military fighter aircraft “Harrier” so that its value was several tens of times lower than the market value.

111 A reader with free time can compare the number of references to the key words “funny US court decisions” and “funny EU court decisions” (or similar) and see that Europe takes its justice system much more seriously. With the coverage of such cases in Russia, the situation evolves together with the legal system. Recently, the Pravo.ru website’s staff made a selection., see: Top–10 Most Ridiculous Judicial Disputes in Russia [Electronic resource] // Pravo.ru. – [Site]. – URL: https://pravo.ru/story/204500/ (accessed: 28.01.2019).

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book “The Case of Non–Material Fish and Other Stories. Comparativist’s Notes”.112 Actually, entertaining contradictions of legal practice, which for a long time served as a reason for smiles or, depending on the case, indignation of lawyers, form part of the empirical material based on which the initial hypothesis about the semantic limits of law is formulated. Nevertheless, the problem of the semantic limits of law is becoming more acute at the current stage of the information society in the context of the medial turn. In these conditions, information becomes the main “generic” object of legal relationships, and legal communication in the digital environment by definition has an information dimension. And, first of all, it is with regard to information (as opposed to tangible objects of the “real world”) that it is possible to pose questions reduced to the dichotomies “imaginary and real”, “serious and unserious” and other similar ones that are relevant to the problem posed.

However, if the example of Minecraft, which serves as an illustration of how to turn the angle of view from a narrow group of virtual property issues to a broader context, were the only possible example, the problem could hardly claim to be universal. Preliminary work on empirical material has also identified other areas, such as representative examples of normative sources and practices relevant to the subject matter of this study on the semantic limits of law. It should be noted that, for the purposes of this paper, normative sources and empirical material have been selected mostly in relation to the legal system of the Russian Federation, since this study is primarily focused on the development of domestic legal doctrine in the light of current problems of the Russian legal system. At the same time, in cases where examples are useful for the development of the relevant theses, empirical material from other jurisdictions is also given. What are the main areas in which

112 Budylin S.L. The Case of Non–Material Fish and Other Stories. Comparativist’s Notes. – M.: «Infotropics Media», 2017. – 308 p. – Accessed from the legal reference system «Garant» (accessed: 06.02.2019).

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we see legal collisions similar (at least at some level of theoretical generalization) to legal collisions of game activities in the digital environment?

§ 3.1. Reservations about “artistic nature” in the criteria of information prohibited in the Internet

One of the closest and most visible examples is normative sources and empirical material in the field of criteria for evaluating information prohibited for dissemination on the Internet.113 The current regulatory legal acts of the Russian Federation, which establish restrictions on the dissemination of information based on public interest, in some cases contain exceptions related to the artistic nature of the information. This fact indicates that the problem under consideration is already beginning to be recognized at the level of law-making, but the system of norms does not always have a systematic approach, at least at first glance.

Order of Roskomnadzor No. 84, Ministry of Internal Affairs of Russia No. 292, Rospotrebnadzor No. 251, Federal Tax Service of Russia MMV-7-2/461@ of 18.05.2017114 concretizes the criteria for information which is prohibited in the Russian Federation in accordance with Item 1 Part 5 Article 15 of the Information Law (hereinafter,

113Unless otherwise explicitly stated in the content of this study (as is the case, for example, with the notion of “weighing”, an intermediate between absurdity and common sense – see Chapter 3 of this paper, as well as Annex 1 to it), we look at the data and subsequent similar examples outside the context of the problems of censorship and the exercise of constitutional rights to freedom of expression and freedom of information – this should be the subject of a separate study.

114On approval of the Criteria for evaluation of materials and (or) information required for decision–making by the Federal Service for Supervision in the Sphere of Communications, Information Technologies and Mass Media, the Ministry of Internal Affairs of the Russian Federation, the Federal Service for Supervision in the Sphere of Consumer Rights Protection and Human Wellbeing, the Federal Tax Service on the inclusion of domain names and (or) indexes of pages of sites in the information and telecommunication network «Internet», as well as network addresses allowing to identify sites on the Internet containing prohibited information into a unified automated information system «Unified register of domain names, indexes of pages of sites in the information and telecommunication network «Internet» and network addresses, allowing to identify sites in the information and telecommunication network «Internet», containing information, the dissemination of which is prohibited in the Russian Federation [Electronic resource]: Order of Roskomnadzor № 84, the Ministry of Internal Affairs of Russia № 292, Rospotrebnadzor № 251, the Federal Service for Consumer Rights Protection and Human Wellbeing MMV-7-2/461 @ of May 18, 2017. – Access from the legal reference system «ConsultantPlus» (accessed: 10.09.2018).

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“Criteria for Prohibited Information”).115 Three of the twenty-seven cases contain a reservation about “artistic works” and two cases contain a reservation about “artistic significance”.

Thus, let us consider for comparison the general criterion based on the availability of materials with pornographic images of minors and (or) announcements of the involvement of minors as performers in spectacular events of a pornographic nature (Chapter I of the Criteria for Prohibited Information). There is no artistic value reservation, for example, in Item 1.1 of the Criteria for Prohibited Information relating to Prohibited Information any representation by any means of a child performing real or simulated116 explicit sexual activity, or any representation of a child’s sexual organs for sexual purposes. It is difficult not to agree with such a reasonable and thoughtful approach. At the same time, Item 1.4 of the Criteria for Prohibited Information considers information aimed at arousing sexual

115 The list of such information as of 21 February 2019 includes materials with pornographic images of minors and (or) announcements of the involvement of minors as performers in spectacular events of a pornographic nature (Point «а» Item 1 Part 5 Article 15 of the Information Law), information on methods, methods of development, manufacture and use of narcotic drugs, psychotropic substances and their precursors, new potentially dangerous psychoactive substances, places of purchase, methods and places of cultivation of narcotic plants (Point «б» Item 1 Part 5 Article 15 of the Information Law); information on the means of committing suicide, as well as appeals to commit suicide (Point «в» Item 1 Part 5 Article 15 of the Information Law); information about a minor who has suffered as a result of unlawful acts (or omissions), the dissemination of which is prohibited by federal laws (Point «г» Item 1 Part 5 Article 15 of the Information Law); information violating the requirements of the Federal Law of 29.12.2006 No. 244-FZ “On State Regulation of Activities related to Organization and Holding of Gambling and on Amendments to Certain Legislative Acts of the Russian Federation” and the Federal Law of 11.11.2003 No. 138-FZ “On Lotteries” on banning activities related to organization and holding of gambling and lotteries using the Internet and other means of communication (Point «д» Item 1 Part 5 Article 15 of the Information Law); information containing proposals on remote sale of alcoholic beverages and (or) alcoholic beverages and (or) ethyl beverages, and (or) alcoholic beverages containing non-food beverages, the retail sale of which is limited or prohibited by the legislation on state regulation of production and turnover of ethyl beverages, alcoholic beverages and alcoholic beverages and restriction of consumption (drinking) of alcoholic beverages (Point «е» Item 1 Part 5 Article 15 of the Information Law). At the very end of 2018, amendments to the criteria came into force, which supplemented the criteria with another one – “information aimed at inducing or otherwise involving minors in the commission of unlawful acts that endanger their lives and/or health or the lives and/or health of others” (Point «ж» Item 1 Part 5 Article 15 of the Information Law).

116 Here, in the context of this study, it is also possible to mention the notes to Article 242.1 of the Criminal Code of the Russian Federation (“Production and circulation of materials or objects with pornographic images of minors”), introduced by the Federal Law of 23.06.2016 No. 199-FZ “On Amendments to Article 242.1 of the Criminal Code of the Russian Federation in order to counteract the circulation of pornographic products with the use of minors and (or) among minors and Article 151 of the Criminal Procedure Code of the Russian Federation” Such materials include, but are not limited to: any image or description for sexual purposes of a minor who commits or simulates sexual intercourse or other acts of a sexual nature, as well as an adult who depicts, commits or simulates such acts (note – in the latter case, within the framework of the model reflected in the legal text, an adult depicts a minor and also simulates the relevant acts). However, the second note to this article provides for an exception for materials or objects of historical, artistic or cultural value or intended for use in scientific or medical purposes or in educational activities in accordance with the procedure established by federal law.