Responsibility for “comments”

    On the Internet, with its written communication on forums and blogs, a lot of controversial situations arise due to the comments left there. Courts because of them on various occasions are now not uncommon, but in the future there may be even more. These reasons are very different - most often it is a defense of honor and dignity, but there are also exotic ones, such as “extremism” or copyright infringement on a comment left by someone.

    As a rule, in such conflicts, the first thing debaters appeal to is copyright. There are sometimes originals that threaten to sue the forum opponent for citing in the wrong context. There are also forum owners who provide their resources with an inscription that they own all the "exclusive rights" to those comments that users leave. Naturally, all these formidable warnings are not worth a damn, since quoting is permitted by law, and in order to get " exclusive rights ", the forum owner must conclude a license agreement with the commentator. The only thing that the site owner can claim is the “right of the manufacturer of the database”, which we wrote about recently .

    However, there is another reason why copyright law is not applicable in the case of comments. The fact is that a regular, “average” forum commentary can hardly be regarded as 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 “information material” or a creative work in front of us only in each specific case. In addition, the problems that may arise when “sharing” copyrighted content are a topic for another discussion. Therefore, today we will not affect them, and confine ourselves to those cases where copyright is not violated.

    The Law "On Information ..." and others



    We also recently wrote about the basic law governing information relations - “ On Information, Information Technologies and the Protection of Information ”. This is the basic law that governs the distribution of information messages, which, according to the conditions of our task, include comments. It describes the basic principles of disseminating information.such as freedom of its search, receipt, transfer, production and distribution by any legal means or the inadmissibility of the collection, storage, use and dissemination of information about a person’s private life 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 “moving” article of the law, which is most often used in practice, is the seventeenth, which describes precisely the issues of responsibility for information posted on the network.

    In addition to general phrases that a 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 has a clause that may exclude civil liability:

    3. In the case of if the distribution of certain information is limited or prohibited by federal laws, the civil liability for the distribution of such information does not lie with 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 provide access to it, provided that this person could not know about the illegality of the dissemination of information.


    This norm 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 relieve responsibility " for copyright ". In the case of criminal liability, article 28 is applicable.The Criminal Code of the Russian Federation, entitled “Innocent harm”: “An act is recognized as committed innocently if the person who committed it was not aware and, by the circumstances of the case, could not be aware of the social danger of their actions (inaction) or did not foresee the possibility of socially dangerous consequences and the circumstances of the case should not or could not have foreseen them. ”

    The Code of Administrative Offenses of “ innocent infliction ” does not, however, enshrines the general principles of the “presumption of innocence” (Article 1.5) and the form of guilt in the form of intent and negligence (Article 2.2 ):

    Based on this, it can be concluded that an innocent commissionoffenses - this is a situation where the perpetrator could not and should not have foreseen the possibility of the onset of harmful consequences. As you can see, the general principle of accountability is one and the same, regardless of its type.

    Media law



    Another commonly used means to hold accountable is to equate websites to 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: since messages on the Internet are accessible to an unlimited circle of people, then they constitute a “mass media". A very obvious but incorrect conclusion.

    " The media"Is a completely special organization, with additional responsibilities and its own legal regime. And their privileges, for example, the right to disclose the source of information only by court order, or to require the provision of significant information from the authorities. And for obstructing the activities of journalists, there is even a separate article in the Criminal Code. However, those who offer to equate the Internet with the media, for some reason, are not eager to give all these rights to ordinary bloggers or website owners. Instead, they only want to hold them accountable “on media rights”. It turns out somehow unfair.

    The main contingent of “prohibitions” is older people who have something written on the Internet that is strongly associated with the media, because “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 ’s case ” when a Syktyvkar blogger received a suspended sentence for commenting on unflattering comments about the police and offering to burn “wrong cops” in one of Syktyvkar’s squares. If the valiant “organs” were not aroused, then a maximum of a hundred people would read the comment. But that conditional term that Terentyev received for the ill-fated commentary has already ended - and the “business” lives on and rattles the whole country, enriching the network vocabulary with the expressions “wrong cops” and “Stefanovskaya square”.

    It turned out 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 on bringing Lebedev to justice for this. Of course, the story ended in zilch: criminal proceedings were refused. Including - and because the blog is not a mass media. The classic situation: "where I turned, it turned out there."

    So, returning to our media: disputes over whether to include the Internet to them have been ongoing for a long time, with varying success. Not so long ago, in June, the Supreme Court clarified the practice of applying the law “On the Mass Media”, excluding the possibility of bringing to responsibility “for the Internet as for the media”: “Since there is no mass media production when disseminating mass media through Internet sites, under the current legislation, Internet sites are not subject to mandatory registration as mass media. This means the impossibility of bringing persons distributing mass media through websites on the Internet to responsibility for the manufacture or distribution of products of unregistered media. Persons who have violated the law when disseminating mass media through Internet sites 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 specifics,. ”

    If we are talking about criminal liability, we can also refer to the third article of the Criminal Code of the Russian Federation, which expressly prohibits the use of criminal “by analogy”, that is, in cases where a specific situation is not explicitly provided for in the law. Sometimes the Internet is also considered as a " public place ", and the expressions in it - respectively, as " committed in public ." This is facilitated by the ambiguity of the interpretation of “publicity” in the texts of normative acts. Somewhere, for example, in the fourth part of the Civil Code (Article 1270 ), this concept is connected with a place open for free access, and putting it on the Internet is called “ bringing 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, marches and pickets”, “public hearings” from the law “On general principles for the organization of local self-government ...” and some others. However, in some acts of information disclosure, “ publicity ” is understood simply as accessibility to an indefinite number of people. This concept is not directly defined in the laws, so everyone understands it, who is it, who is that way, depending on whether it is necessary to hold accountable or vice versa, to justify. And ambiguities in these matters will remain for a long time to come.

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