CRIMINAL LIABILITY FOR FALSE PUBLICATIONS ON SOCIAL NETWORKS: PMS PROPOSE TO STRENGTHEN CONTROL

Citizens who distributed videos of the work of Ukrainian air defenses on social networks face from 5 to 8 years in prison. False information can also spread on social networks, which can also be part of an information war. Therefore, people’s deputies are trying to curb this process in their own way. Thus, in mid-April 2023, the Verkhovna Rada registered draft law No. 9223 on amendments to the Criminal and Criminal Procedural Codes of Ukraine on establishing responsibility for certain actions against the foundations of national security of Ukraine. How effective is this way to prevent the dissemination of false information and how this initiative can affect society, Bohdan VRUBLEVSKYI, lawyer of ADER HABER Law Firm, told Mind.

Registration number and date: No. 9223 dated 19/04/2023

The authors of the legislative initiative: Heorhiy Mazurashu, Serhiy Kuzminykh, Maksym Pavliuk, Mykhailo Laba, Oleh Arseniuk.

Stage: provided for review to the committees of the Verkhovna Rada.

Alternative bills: The draft law does not have any alternatives at the time of publication of this article.

Issue price. As can be seen from the text of the explanatory note, the implementation of the provisions of the draft law does not require additional expenditures from the State Budget.

Content. The authors of the draft law propose to add a new article (Article 114-3) to the Criminal Code of Ukraine, which provides for criminal liability for the use of accounts for the purpose of disseminating false information or for influencing decision-making, committing or not committing actions.

It is also proposed to deprive of liberty for a term of three to five years if such actions were committed repeatedly, by an organized group of persons by prior conspiracy or to influence decision-making or the commission or non-commission of actions by state bodies or bodies of local self-government, officials of these bodies.

In addition, if these actions were committed under the legal regime of martial law, the penalty will be imprisonment for a term of five to seven years.

Who will “be in plus”? With the introduction of these amendments to the Criminal Code of Ukraine, only law enforcement agencies will “benefit”. They will be able to register fictitious criminal proceedings in order to raise “performance indicators” or to extort illegal benefits in order to close such criminal proceedings in the future.

Who will “be in minus”? Ordinary users, administrators of various publics and groups in social networks will be able to prosecute for any spread news. Any civil servant whose activities come under criticism from users on social networks will have the right to appeal to law enforcement agencies to bring such users to criminal responsibility.

With the adoption of the bill, all users of social networks, including journalists, will have limited freedom of speech and expression due to fears of penalties for publishing information that can be assessed as false under the new legislative changes.

The position of a lawyer.

1. The authors of the draft law note that the purpose of these amendments to the Criminal Code of Ukraine is to counter information attacks that threaten national security and national interests of Ukraine. The public knows such “information attacks” better by the abbreviation IPSO, which is more often used by the media in publications. However, the authors of the draft law do not explain how the amendment of the criminal law can protect society from such information attacks.

Without mentioning any more arguments for the adoption of the draft law, MPs only criticize the information policy of social networks because of their inaction on fake accounts. After all, fake accounts, according to the authors, can be used to spread false information.

It is important to note that on July 5, 2022, the European Parliament adopted a law that provides for the responsibility of online platforms (Google, Facebook, Instagram) for the publication of illegal or harmful content.

That is, before proposing amendments to the Criminal Code of Ukraine, the authors of the law should analyze the legislative framework of the European Union to avoid disagreements or contradictions. Such actions are critically necessary in the current realities when Ukraine’s integration into the EU is taking place.

2. Wide publicity and a flurry of criticism in society caused the wording of part 3 of Art. 114-3, which is specified in the draft law.

It provides for criminal liability for the publication in social networks of false information that increases the level of social tension or violates the constitutional rights and freedoms of other citizens.

However, questions immediately arise that are not answered in the draft law:

• Who exactly will determine the information as false?
• What is the mechanism for studying such information?
• What are the criteria for determining information as “knowingly false”?

The term “knowingly false” is used to define the direct dissemination of false information, that is, a situation where a person knowingly knows that he is spreading false information. It should be borne in mind that assessing what is “knowingly false” is complex and subjective. Sometimes people may believe that their posts are truthful despite not having sufficient validity or factual basis.

Consequently, without answers to these questions, there is a risk of prosecution of any persons who write messages from their personal account about the activities of other individuals or legal entities.

So, how then should persons against whom false information is spread act? The legislation of Ukraine has long provided for the possibility of a person protecting honor, dignity and business reputation. Such a person may file a statement of claim in court and declare it false in court. In addition, the person who disseminated such information may be obliged to publicly refute it.

This right is expressly provided for in the Constitution of Ukraine (Article 32) and the Civil Code of Ukraine (Article 277).

3. It is important to focus on the fact that criminal liability for such acts has long been provided. After analyzing the legislation, it can be established that the Criminal Code already contains a number of articles that provide for criminal liability for the dissemination of information.

These articles are:

• Collaboration activities, namely public denial by a citizen of Ukraine of armed aggression against Ukraine (Article 111-1 of the Criminal Code of Ukraine);
• Violation of confidentiality of private life, namely dissemination of confidential information about a person or illegal change of such information (Article 182 of the Criminal Code of Ukraine);
• Public calls to commit a terrorist act, as well as distribution, production or storage for the purpose of disseminating materials with such calls (Article 258-2 of the Criminal Code of Ukraine);
• Distribution of works promoting the cult of violence and cruelty, racial, national or religious intolerance and discrimination (Article 300 of the Criminal Code of Ukraine);
• Distribution of materials containing insults to honor and dignity, a threat to a serviceman (Article 435-1 of the Criminal Code of Ukraine).

Therefore, given the number of such articles, the question arises of the need to introduce another article into the Criminal Code of Ukraine.

Summing up, it should be noted that it is virtually impossible to establish positive aspects of amending the Criminal Code of Ukraine due to a large number of inaccuracies, as well as contradictions of the draft law to the principles of a democratic society in Ukraine.

Conclusions.

The draft law should take into account the principles of freedom of speech and the right of citizens to freely express their opinions, while providing protection against the dissemination of false information and abuse of influence. To adopt this draft law, it is necessary to develop clear definitions of concepts and mechanisms to separate personal opinions from false information.