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§ 4. Restriction of the constitutional freedom of speech during pre-election campaign. The role of a network the Internet in realisation of a freedom of speech during this period

the Russian legislation in details regulates pre-election campaign carrying out in mass media. According to the legislation on elections on propaganda in mass-media a number of the restrictions is imposed, called to help citizens to make the realised choice.
First, this condition about equality of participants of election campaign at distribution of a free broadcasting time and the printing areas in the state and municipal mass-media. It is provided by Law article 50 «About the basic guarantees of suffrages …». According to this article the state and municipal organisations of tele-radio broadcasting and edition 148 See: Mindrova E.A.collision of the right of citizens to access to the information and the rights to inviolability of a private life in the conditions of an information society: avtoref. dis. … kand. jurid. Sciences. M: IGP the Russian Academy of Sciences, 2007. 37 with. The state and municipal periodic printing editions are obliged to provide equal conditions of carrying out of pre-election campaign to the registered candidates, selective associations for representation to voters of electoral programmes. Secondly, the same law (item item 3 46) it is provided, that within five days before ballot day, and also in ballot day publication (promulgation) of results of polls, forecasts of election returns and referenda, other researches connected with spent elections and referenda is forbidden, including their placing in information-telecommunication networks, access to which is not limited by a certain circle of persons (including a network the Internet). Thirdly, in the Russian legislation the interdiction for pre-election campaign carrying out («day of silence») in ballot day and in day previous it (item 3 of item 49 of the Law «About the basic guarantees of suffrages …») is provided. At last, there is an interdiction for broadcasting time use for channels of the organisations which are carrying out telecasting, with a view of distribution of the propaganda materials directed against candidates-competitors. The constitutional Court of the Russian Federation thereupon has enacted, that with reference to mass media pre-election campaign freedom cannot be identified with freedom of expression to which objectivity demands are not made. Therefore with a view of protection of the right to the free elections which are one of bases of the constitutional system, including with a view of maintenance of free will of voters, freedom of expression for representatives of mass media as follows from articles 3 (ch. 3), 17 (ch. 3), 29 (ch. 5), 32 (ch. 2) and 55 (ch. 3) Constitutions of the Russian Federation, can be limited by the federal act. At the same time, as follows from the Russian Federations formulated by the Constitutional Court of legal positions, restrictions of constitutional laws (including, hence, and freedom of the mass information) should be necessary and proportional konstitutsionno to the recognised purposes such ограничений149. Whether these restrictions to the materials placed in a network the Internet are applicable? What it is possible to tell about efficiency of the given restrictions taking into account features of relations in the Network? The interdiction for placing of results of polls the Interdiction for placing of results of polls in a network the Internet in a current of five days before the ballot day, provided by point 3 of article 46 of the Law «About the basic guarantees of suffrages …» actually is not executed, and its execution, obviously, cannot be provided by electoral commissions and law enforcement bodies.
On resources much the Internet - during the specified period and in ballot day it is possible to familiarise with results of various polls and comments to them. In general, the legal sense and the purpose of regulation of this forbidding norm are unevident. Influence of the specified publications on formation of preferences of voters, in our opinion, extremely 149 See: The decision of the Constitutional Court of the Russian Federation from October, 30th, 2003 № 15-P «On business about check of constitutionality of separate positions of the Federal act„ About the basic guarantees of suffrages and the rights to participation in a referendum of citizens of the Russian Federation “in connection with inquiry of group of deputies of the State Duma and complaints of citizens S.A.Buntmana, K.A.Katanjana and K.S.Rozhkova»//the Bulletin of the Constitutional Court of the Russian Federation. 2003. № 6. Slightly. In our opinion, it is expedient to exclude this norm from the considered law. Analyzing foreign experience of similar interdictions, experts of Institute for democracy and assistance to elections (IDEA) 150 have come to conclusion, that the full interdiction for illumination of results of interrogations of the public opinions wished or not, seldom happens expedient. In France, for example, for a long time there was an interdiction for illumination of results of polls for elections (though there was time when such interdiction was not). On elections in a legislature of 1997 some newspapers have broken this rule. Among them there were newspapers Le Parisien and La Republique des Pyrennees. Newspaper Liberation has bypassed this interdiction, having placed results of one of interrogations on a site on the Internet connected with newspaper Tribune de Geneve in Switzerland. To this example newspaper France Soir which has published materials on poll before the second round голосования151 has followed. It is necessary to mean also, that for access reception to the information in the Network from the user still it is required a little bit more than special knowledge and resources (in particular, skills of the user and entering of a user's payment), rather than at access reception to the information containing in teleprograms. In the latter case simply enough to include the TV. Thereof the quantity of Internet users still considerably is less than quantity of the spectators constituting TV viewers. 150 International institute of democracy and assistance to elections (MIDSV, English International IDEA) – the intergovernmental organisation created in 1995 which member states represent all continents//the Reference portal «Vikipedija. The free encyclopaedia». [The Electronic resource]. URL: http://ru.wikipedia.org/wiki/International_IDEA (reference date: 06.09.2012). 151 See: mass-media and elections. The organisation and financing of elections (ACE Project) / R.Karver [etc.] / otv. red. O.I.Ljahovich's transfer; nauch. red. With. G.Kolesnik. M: human rights, 2002. 208 with. The interdiction for criticism of opponents during election campaign by One of tools of restriction of a freedom of speech in elections is so-called «an interdiction for criticism of opponents in election campaign», established norm of point 5.2 of article 56 of the Law «About the basic guarantees of suffrages …»: the registered candidate has not the right to use a broadcasting time given by it for placing of propaganda materials, for distribution of the negative information on the candidate, including distributions of appeals to vote against, descriptions of possible negative consequences in case this or that candidate will be selected. It is impossible to extend the information on other candidates, promoting creation of the negative relation of voters or in a combination to negative comments. As a matter of fact, the norm considered by us is similar to position of article 5 of the Federal act «About advertising» 152 which recognises as unfair the advertising containing incorrect comparisons of the advertised goods with the goods being in a turn which are made by other manufacturers or are realised by other sellers. However it is necessary to consider, that the similar approach, fair for the advertising market, it is unacceptable for pre-election campaign as the election campaign essence just and consists in polemic and the mutual criticism of political opponents. From the maintenance of point 5.2 of article 56 of the Law «About the basic guarantees of suffrages …» it is possible to draw a conclusion, that such criticism is not supposed only on TV. However it is not quite clear, on what way judiciary practice will go. It is possible to admit, 152 See: the Federal act from March, 13th, 2006 № 38-FZ «About advertising» (in red. From July, 28th, 2012, from amendment and dop., vstup. In force since September, 1st, 2012) //SZ the Russian Federation. 2006. № 12, item 1232. That extensive interpretation of a word "telecasting" is quite possible also. For example, during election campaign on presidential elections of the Russian Federation in February, 2012 Management of the Ministry of Internal Affairs on to Voronezh had been commenced administrative suit in the relation of oppositional active worker Nina Beljaevoj153 which have convicted of illegal propaganda in a social network «In contact» against the candidate for V.V. presidents. Putin. Beljaeva has published on "wall" in a social network «In toontakte »the message in which called« teachers, doctors, students "and" workers of the enterprises belonging edinorossam »to go on elections and,"not being afraid"to vote against Vladimir Putin. As a result of Beljaevoj illegal propaganda under article 5.12 of the Code of the Russian Federation about administrative правонарушениях154 has been incriminated. Absence in a post of data on circulation of the publication and a source of its payment became one of the key infringements of rules of propaganda designated by electoral commission. And thus, that about circulation concerning record on page in a social network it is possible to speak it only conditionally. We will notice, that in view of insufficiency of proofs of fault, N.Beljaeva all the same it has been justified. However, considering the described approach pravoprimenitelej, quite probably, that the norm of article 56 of the Law« About the basic guarantees of suffrages … »will be interpreted broadly. 153 see: Injutin V.Politsija undertook an Antiputin post. The oppositional active worker convict of illegal propaganda in sotsseti «In contact»//Kommersant. On February, 14th, 2012 № 26 (4811). [The Electronic resource]. URL: http://kommersant.ru/doc/1872873 (reference date: 06.09.2012). 154 See: the Code of the Russian Federation about administrative violations from December, 30th, 2001 № 195-FZ (in red. From July, 28th, 2012, from amendment and dop., vstup. In force since September, 1st, 2012) //SZ the Russian Federation. 2002. № 1 (ch. 1), item 1. While moving of the pre-election polemic which to the full are realisation by citizens of the constitutional freedom of speech, from a teleether in the Internet became one of consequences of action of this norm. So, in September – December, 2011 and in January – March, 2012 the lion's share of disputes and mutual recriminations of political contenders has appeared in the Network. In general, to the full it was possible to learn the main maintenance of pre-election subjects, only having addressed to network resources. Thereupon a number of deputies of the State Duma representing the ruling majority, time and again brought an attention to the question on means of restriction of freedom of an exchange of opinions in the Network. Certainly, truly and that the segment of the users having possibility to get acquainted with such polemic, is much less than TV viewers of the basic television channels. In our opinion, point 5.2 of article 56 of the Law «About the basic guarantees of suffrages …» unreasonably limits a freedom of speech, interferes with expression of opinion of a considerable part of voters. In our opinion, this norm also would be expedient for excluding from the named Federal act. Thus it is necessary to notice, that there are various points of view on this question. For example, D.N.Lyzlov believes, that the restriction established by this norm, extends only on pre-election campaign on телевидении155. And the vice-president of Committee of the State Duma of the Russian Federation under A.Moskalets's constitutional legislation at acceptance of this 155 See: Lyzlov D. N. About restriction of "negative" propaganda by the Russian legislation on elections//the Government and local government. 2011. № 1. With. 28–30. Norms in 2006 has declared, that «the amendment is directed on a positive, on protection of the person and a society. At us after all as happens: krutanuli a roller with the compromising evidence, and possibilities to be rehabilitated do not give to the person. It breaks the active suffrage of citizens »156. On the contrary, M.A.Dubrovin comes to conclusion, that the considered norm contradicts article 29 of the Constitution of the Russian Federation. The interdiction for criticism and negative statements to the candidate (candidates, the list of candidates, lists of candidates) excludes the right of the registered candidate to an elective office freely to express the thoughts and political convictions, including the relation to other candidates even if it negative, that is intervention in sphere of realisation of a freedom of speech. Certainly, expression of political opinions should be under construction on a principle of legality and not break the right of other candidates Legislative restrictions of a freedom of speech maintenance of defence of the country and safety of the state should to be established only with a view of protection of bases of the constitutional system, morals, health, the rights and legitimate interests of other persons. Besides, if the interdiction is established, the legislation sanctions (administrative, disciplinary or criminal) for fulfilment such действий157 should be established. I will repeat, that, from our point of view, it is necessary to agree with M.A.Dubrovinoj's opinion which suggests to exclude the given norm from the current legislation all the same. 156 Moskalets A.Zapret of criticism of opponents during pre-election campaign is directed on protection of the person and a society//LentaCom.ru: the All-Russia political newspaper. 2006. On November, 16th. [An electronic resource]. URL: http://www.lentacom.ru/print/comments/9172.html (reference date: 06.09.2012). 157 See: Dubrovin M. A. Constitutional law protection on freedom of thought and a word in modern Russia: dis.... kand. jurid. Sciences. Saratov, 2007. 208 with. Thus, pre-election campaign including in «day of silence», polls not only are published is actively spent to Networks, but also are spent in blogs and social networks, and actively discussed by users. To supervise observance on the Internet of rules about «a bottom of silence», and also placing of pre-election campaign and the given sociological interrogations of voters is practically impossible. On the contrary, this information is most claimed on the Internet at its absence in other mass-media. The same it is possible to tell and about the critic of opponents who sounds in the Network very actively. Though, in our opinion, acceptance of the uniform act on Internet regulation is inexpedient, in the legislation regulating the relations on realisation of a freedom of speech on the Internet, following positions should be in details reflected: – Adherence to the standard principles and norms of international law, and also the Constitution of the Russian Federation both concerning guarantees of a freedom of speech of users the Internet, and concerning protection of konstitutsionno-legal principles; – basic (modelling) rules concerning Internet communities on Internet sites, in particular a legal status of the user agreements; – differentiation of a liability of infringement of the legislation between the service-provider, the owner of a resource and its user. At realisation of a policy kontentnoj the filtration should prefer "live", instead of to program methods. Thus it is possible to conclude dogovory with providers on realisation of a filtration of an undesirable content. Often as a measure on struggle against such content authorisation or access with use of the electronic digital signature as a guarantee from illegal activity of the person on the Internet was offered. But, in our opinion, the given measure will not be effective. In - the first, the technology of use ETSP is not too developed in Russia, and in the second, this measure can be extremely negatively apprehended the users aspiring to anonymity – in particular, because of danger of use of authorisation to the illegal control over activity of users. Consideration of possibilities of legislative settlement of the lifted problem – is unconditional, a positive step from the point of view of prevention of extremist activity on the Internet. But, in our opinion, it is not enough of it. One more urgent problem, which sharpness amplifies every day, is an aggression of media environment in which there is an information exchange, the freedom of speech and access right to the information is realised. If we assume as a basis the thesis that the Internet reflects reality then it is necessary to recognise, that extremist, at first sight, the position of users not always is display of activity of the extremist organisations of fascist, nationalist and other sort. It can be a consequence of sharp growth of extremist moods in a society which reflect reaction to political, social and economic problems. Unlike a number of the most developed countries of Europe, Russia is the state in which many sharpest social problems are not solved up to the end. Poverty of the population, corruption, other kinds of criminality, impossibility to satisfy the elementary vital needs drives people to despair. In this case the Internet acts as the channel with which help citizens have a possibility to signal about the problems. One more question which also demands the urgent decision – insufficient legal and information culture of people which are disturbed by sharp social problems facing to them and not in a condition to solve them without the reference to the public through the Internet. The cyberspace should be considered as separate jurisdiction with own rules which reflect its unique character. Internal rules have been conceived as horizontal in which subjects of rules are also their founders. Hence, there is a necessity of new understanding of management of a cyberspace and territorialities in a cyberspace. In quality suverena in the given jurisdiction network communities act. In our opinion, it is not necessary to refuse – as a parallel and accompanying direction – from a policy of correction of a psychological climate in the country that assumes both legal measures, and accurate, consecutive social policy. Developing a state policy on this direction, it is possible to expect respective decrease in level of extremist moods and actions on the Internet.
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A source: SHCHERBOVICH ANDREY ANDREEVICH. the CONSTITUTIONAL GUARANTEES of the FREEDOM OF SPEECH And ACCESS RIGHT To the INFORMATION In the NETWORK the INTERNET. 2013

More on topic § 4. Restriction of the constitutional freedom of speech during pre-election campaign. The role of a network the Internet in realisation of a freedom of speech during this period:

  1. § 1. Concept, legal sense and guarantees of the constitutional freedom of speech. Features of realisation of given freedom in a network the Internet
  2. § 2. Konstitutsionno-legal bases of realisation of a freedom of speech in a network the Internet: three levels of regulation
  3. SHCHERBOVICH ANDREY ANDREEVICH. the CONSTITUTIONAL GUARANTEES of the FREEDOM OF SPEECH And ACCESS RIGHT To the INFORMATION In the NETWORK the INTERNET, 2013
  4. § 3. Restrictions of a freedom of speech on the Internet with a view of maintenance of the rights and freedom of other persons
  5. responsibility differentiation between users and providers at realisation of a freedom of speech on the Internet
  6. § 1. Restrictions of a freedom of speech on the Internet with a view of protection of the constitutional system, defence of the country and safety of the state
  7. § 5. Self-regulation on the Internet in a context of protection of a freedom of speech and access right to the information. The role of the user agreements
  8. the CHAPTER II. Features of realisation of a freedom of speech on the Internet: restrictions and guarantees
  9. § 2. Restrictions of a freedom of speech on the Internet with a view of protection of morals and health of citizens
  10. § 2. Pre-election campaign as a guarantee of realisation of suffrages of citizens in the Russian Federation
  11. 1. The Teoretiko-legal characteristic of pre-election campaign and its value in election campaign.
  12. 2. Features of the legislation of subjects of the Russian Federation which is in limits of Southern federal district, about pre-election campaign and practice of its realisation.
  13. a freedom of speech, opinions and the information
  14. the Chapter II. The maintenance legal podinstituta - pre-election campaign and practice of realisation of its norms in the subjects of the Russian Federation who are in limits of Southern federal district