The legal experiment of the domestic legislator in the regulation of liability for trash streams

Krehovets Aleksandra Viktorovna PhD in Law Associate Professor; Department of Criminal and Penal Enforcement Law; Nizhny Novgorod Academy of the Ministry of Internal Affairs of Russia 603950, Russia, Nizhny Novgorod region, Nizhny Novgorod, Ankudinovskoe highway, 3 alexa-xa500@mail.ru

Nikiforova Alena Anatol'evna PhD in Law Deputy Head of the Department; Department of Criminal and Penal Enforcement Law; Nizhny Novgorod Academy of the Ministry of Internal Affairs of the Russian Federation 603950, Russia, Nizhny Novgorod region, Nizhny Novgorod, Ankudinovskoe highway, 3 luckyalenka@rambler.ru

The relevance of the research and the degree of elaboration of the scientific problem. Currently, the issue of regulating responsibility for trash streaming is quite relevant for all countries of the world, including the Russian Federation. Trash streams, as a relatively new phenomenon for the Russian legal reality, quickly became the object of attention of government authorities due to the potential and real social danger they pose. The subject of the study is trash streams as a negative phenomenon, the responsibility for which is regulated by the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation). The purpose of the study is to evaluate the legal experiment conducted by the domestic legislator regarding the regulation of liability for public demonstration of criminal acts using information and telecommunication technologies, in particular, using social networks, various digital platforms, etc. The methods used in the study were general (dialectical method, systematic and integrated approaches) and special (formal-legal, comparative-legal, etc.).

Live broadcasts provide unique communication opportunities, which is why various aspects of this phenomenon have recently aroused particular interest in the scientific field. Russian scientists, such as G.G. Zaitseva, T.Y. Antropova, A.V. Poteeva, C. Chen, and others, studied issues related to live broadcasts in various fields - the social sphere, education, the business environment, etc. ^{[1, pp.56-66; 2, pp.59-70; 3, pp.6-11; 4, pp.420-428]}, as well as foreign experts, in particular, N. Edge, M. Fuller, K. Kang, M. Gilbert and others ^{[5, pp. 10-17; 6, pp. 1273-1280; 7, pp. 1-16; 8, pp. 357-365]}.

Introduction. The rapid development of information and telecommunication technologies has affected all spheres of public life, and live video broadcasts have gained particular popularity in recent years. In this regard, the statement of Michael H. Goldhaber, a specialist from California, seems fair and accurate, who noted that "in the era of information overload caused by interactive media, attention, not information, has become one of the cornerstones of the media economy" ^{[9, p.12]}.

However, unfortunately, the result of using live broadcasts is not always positive. In particular, modern Internet technologies have made examples of negative behavior available to the general public, and live broadcasts of crimes have been of particular concern to the State. For example, a Belarusian blogger repeatedly slammed a girl's face against a table during a live broadcast from the Moscow City Tower. As a result, he broke her jaw and damaged her braces. The perpetrator was brought to criminal responsibility under Article 116 of the Criminal Code of the Russian Federation and he was sentenced to correctional labor for a period of six months and withholding 10% of wages. [Streamer Mellstroi smashed a girl's jaw on a table live on air. URL: https://www.gazeta.ru/culture/2020/10/19/a_13323853.shtml?ysclid=m3sjb4ll6h264541610&updated (accessed: 11/25/2024)] ^[21].

The act committed in the Bryansk region in 2022 should be recognized as no less resonant. The court issued a guilty verdict under paragraphs "a, d" of Part 2 of Article 117 of the Criminal Code of the Russian Federation "Torture" against a man who forcibly held a woman in a private house for ten days and broadcast the abuse live on the Internet. In March 2022, the perpetrator invited the girl to his place, forcibly took her passport and mobile phone. For ten days, the man humiliated, beat the victim with his feet and fists on her face and body, doused her with green paint, sprayed her with pepper spray, glued her hair with superglue, smeared her face with shoe polish and verbally humiliated her. The convict filmed all his bullying and posted it live on his channel. [A court in the Bryansk region sent the organizer of the thrash stream to a penal colony. URL: https://wcons.net/novosti/sud-v-brjanskoj-oblasti-otpravil-v-koloniju-organizatora-trjesh-strima/?ysclid=m3sifxv84z904609597 (accessed: 11/25/2024)]. ^[22].

The transformations taking place in society oblige the legislator to ensure the modernization of legislation. Given the fact that in order to effectively counter criminal encroachments, first of all, it is necessary to have well-designed criminal legislation, it seems that a legal experiment in this matter can be identified as one of the tools contributing to its improvement, taking into account rapidly changing social processes. In this regard, we believe it is correct to recognize R. A. Safarov's statement that "the legal experiment itself becomes the basis for the formation and expression of public opinion on a particular issue, since the positive results of the experiment itself can convince citizens of the need to change legislation according to the model proposed by the legislator" ^{[10, p.14]}.

The main part. Currently, the prerequisites for using such an instrument as a legal experiment in criminal law are increasingly criminally punishable acts with their public presentation to the public.

The process of demonstrating a crime using Internet technologies was called "trash stream" (from the English "trash" - garbage, "stream" – broadcast).

The very concept of "trash streams" is defined in different ways in the legal doctrine. So, for example, according to E.A. Afanasenko and A.A. Volkova, they represent "a special type of online broadcasts in which the streamer purposefully produces low-quality content using rude jokes, obscene language and provocative behavior" ^{[11, p.188]}.

A number of authors define the content of the concept in question more narrowly. For example, I.E. Vnukova defines "trash streams" as "a genre of broadcasts in which participants perform certain actions, usually for a monetary reward from the audience" ^{[12, p.305]}. At the same time, it should be noted that conducting "trash streams" should not be limited only to the facts of inducing potential victims to perform certain actions, since the public danger of the act in question is much broader: a public demonstration by a person of the process of criminal activity carried out by him without the fact of involving other participants in this process is also a "trash stream"..

For a long time, the issue of criminal assessment of "trash streams" has caused lively discussions in Russian scientific circles. An analysis of the specialized literature has allowed us to identify several approaches that dominate the criminal law doctrine regarding the issue of regulating criminal liability for the commission of "trash streams".

According to the first point of view, the conduct of "trash streams" is subject to criminalization as a separate corpus delicti, since this act has the status of an independent crime.

According to this position, trash streams are an independent socially dangerous act, and responsibility for their commission should be provided for in a separate article. For example, K.A. Zharov considers it appropriate to classify the norm on responsibility for the act in question as crimes against public health and public morals and define its content as "an organization in an information and telecommunications network of broadcasting, whose activities involve violation of the right to free movement, insult, humiliation of a person and/or violence, regardless of its presence and severity." caused harm to health" ^{[13, p.298]}.

E.A. Kapitonov also supports the presented point of view. According to the author, "bringing to justice for crimes against life and health does not take into account the fact that the footage was posted on the Internet, which clearly deserves a separate qualification, since it most often exposes the victim in an unsightly light (often without her consent) and in a certain sense affects her honor and dignity" ^{[14, p.24]}.

Y.V. Gracheva and S.V. Malikov share the idea of criminalizing trash streams. According to the authors, the norm on responsibility for the act in question should also be located in Chapter 25 of the Criminal Code of the Russian Federation with the following content: "organizing, conducting or participating in a live broadcast in which participants perform tasks for viewers or other persons associated with violence, humiliation of human dignity or insult, causing feelings of disgust and contrary to public morality." ^{[15, p.202]}.

E.N. Polunina and A.V. Antonova, in turn, suggest classifying trash streaming as crimes against state power. According to the authors, the norm on responsibility for this act should be provided for in Part 3 of Article 282 of the Criminal Code of the Russian Federation in the following form: "humiliation of human dignity with the use of violence or the threat of its use, committed publicly using the Internet for hooligan motives" ^{[16, p.90]}.

Another position on the issue of regulating responsibility for conducting "trash streams" is the need to include this feature as a qualifying one in a number of crimes, as well as the inclusion of "trash streams" as a new aggravating circumstance in art.63 of the Criminal Code of the Russian Federation ^{[17, pp.90-100; 18, pp.96-101; 19, pp.36-40]}.

It is important to note that this option was adopted by the Russian legislator. Federal Law No. 218-FZ of 08.08.2024 "On Amendments to the Criminal Code of the Russian Federation" recognized the conduct of "trash streams" as an aggravating circumstance ("the commission of an intentional crime involving public demonstration, including in the media or information and telecommunications networks (including the Internet), as well as this The circumstance was included in a number of crimes as an aggravating feature [Federal Law No. 218-FZ dated 08.08.2024 "On Amendments to the Criminal Code of the Russian Federation" // "Collection of Legislation of the Russian Federation", 12.08.2024, No. 33 (Part I), art. 4914]. According to the authors of the bill, the use of "trash streams" to commit a crime creates conditions for the displayed content to become accessible to an unlimited number of people, which, of course, increases the degree of public danger of the act as a whole [Explanatory Note to Draft Law No. 506240-8 "On Amendments to the Criminal Code of the Russian Federation (in Part strengthening responsibility for crimes involving public demonstration, including in the media or information and telecommunication networks (including the Internet))". URL: https://sozd.duma.gov.ru/bill/506240-8 (date of request: 11/25/2024)]

It is interesting to note that in the official response of the Supreme Court of the Russian Federation to the draft of the Federal Law in question, a technical and legal comment was made, according to which, when naming the aggravating circumstance under discussion, it is advisable to use a more precise wording - "the commission of a crime involving a public demonstration of the process of its implementation using the media or electronic or information and telecommunications social networks (including the Internet) [Official response of the Supreme Court of the Russian Federation to the draft Federal Law "On Amendments to the Criminal Code of the Russian Federation" URL: https://sozd.duma.gov.ru/bill/506240-8 (date of access: 11/25/2024)]. However, this remark was not accepted by the authors of the bill, and by the end of its discussion, the original wording of the feature under discussion was retained.

The comment of the Supreme Court of the Russian Federation on this issue should be recognized as fair, since when fixing the feature in question in this way – "committing an intentional crime with public demonstration, including in the media or information and telecommunication networks" - there is virtually no indication of what exactly is being demonstrated publicly. That is, as a result of a literal interpretation of the law, an applicant may conclude that the process of committing an intentional crime and public demonstration are two actions unrelated to each other. Ambiguity in interpretation, as a result, can lead to difficulties in establishing the analyzed feature.

Finally, there are a number of authors who believe that there are no grounds for regulating liability for the commission of "trash streams" in the current Russian criminal legislation.

This point of view is supported, for example, by E.N. Rakhmanova, A.N. Berestova, P.V. Tsvetkov. According to the authors, the actions of "trash streamers" should be assessed according to the relevant articles of the Criminal Code of the Russian Federation (harm to health, murder, etc.) depending on their role (organizers, accomplices, etc.) ^{[20, p.137]}. In this case, in our opinion, counterarguments should be provided, since in the process of criminal legal assessment of "trash streams" it is important that this phenomenon represents a certain method of committing a crime and it is its use that gives an increased public danger to a particular criminal act.

In this regard, it is interesting to analyze the legal regulation of liability for conducting "trash streams" in foreign countries.

The most common option for countering such actions abroad is to hold accountable those responsible for the activities of social networks, platforms, etc. So, for example, in Australia in 2019, amendments to the current criminal legislation were adopted, according to which, in the case of posting "disgusting violent materials" on social networks, which are videos showing terrorist attacks, murders, rapes or kidnappings, companies that did not promptly remove such content may be involved. criminal liability in the form of a fine of up to 10% of their annual profits, and their employees can be sentenced to up to three years in prison [Criminal Code Amendment (Sharing of Illegal Violent Material) Bill 2019 No.2019. URL: https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/s1201_first-senate/toc_pdf/1908121.pdf;fileType=application% 2Fpdf (date of request: 11/25/2024)].

In 2023, a law was also passed in the UK that placed responsibility for the distribution of malicious hate speech content on platforms and on social networks on the heads of companies engaged in such activities [Online Safety Act 2023. URL: https://www.legislation.gov.uk/ukpga/2023/50/enacted (date of access: 11/25/2014)].

Conclusion. Thus, the analysis of the positions considered on the issue of regulating liability for conducting "trash streams" in the current Russian criminal legislation allows us to conclude that the legal experiment of the domestic legislator in this area, expressed in the fact that conducting "trash streams" was recognized as an aggravating circumstance ("committing an intentional crime with public demonstration, including in the mass media or information and telecommunication networks (including the Internet), as well as included in a number of crimes as an aggravating feature, has a reasoned technical and legal basis. The foreign experience of criminal law counteraction to public demonstrations of criminal acts shows the need of the whole society, not only the Russian one, for legal regulation of live broadcasts, broadcasts, etc. Recognition of this fact, in turn, allows us to express confidence in the high potential of the norms introduced in the Criminal Code of the Russian Federation in terms of their effectiveness in countering the illegal acts considered.

At the same time, in order to improve the current Russian criminal law, it is necessary to change the wording of such an aggravating feature, as well as circumstances aggravating punishment, as conducting "trash streams", as follows: "committing an intentional crime in public, using information and telecommunications networks, including the Internet." In our opinion, such a technical and legal solution should be recognized as experimental and indicative of the conceptual scientific novelty of the study, because previously such experience had not been encountered at the legislative level, and the resulting law enforcement practice would allow us to assess the need for such transformations of the criminal law and ensure timely government response to emerging criminal threats.