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(emphasis added - V.A.) statements of Baron Zemo about the need for a Holocaust, approval of the actions of the national socialist regime in Germany and Ku Klux Klan,” Roman Dmitrovsky told Kommersant, – [t]he expert acknowledged that the image of the villain is a caricature, and the work is a satire, but said that Holocaust, Nazism and racism cannot be objects of satire and humor. This supposedly will make the problem less significant, will force the reader not to consider it important, and, therefore, this is Nazi propaganda».146

This discussion is in direct relationship to the subject-matter of the study – whether or not such a subject of the relationship as the plot of the comic in the considered variant falls, especially since the corresponding controversial statements are not simply condemned by the author of the work, but also embedded in the mouth of the antagonist

(!). It is quite characteristic that the President of the Russian Jewish Congress, Yuri Kanner, expressed disagreement with the expert:

«“I have not seen this comic, but for me it is obvious that in such matters it is necessary to take into account the context. Let us recall the film “Seventeen Moments of Spring”, where Stirlitz is in the uniform of SS. And it would not occur to anyone to call it propaganda”, said Mr. Kanner. “I don’t understand what kind of expertise there can be if we are talking about art (emphasis added – V.A.)”. He noted that he sees nothing wrong with telling the story of the Holocaust in comics: “In our time, the presentation of the material must be such as to catch the target audience. If young people get knowledge from the comics, do not worry. It is important that this happens with the correct placement of accents”. Yuri Kanner also told “Kommersant” that you can joke “for a variety of reasons”, and even gave an example: “Once I was a member of the official Russian delegation in Poland and we visited the museum of the Nazi death camp in Auschwitz. At dinner, the waiter asked a famous Moscow rabbi what kind of water he preferred. The rabbi replied: “I usually drink water with gas, but it is in Auschwitz that I will probably ask without gas”. Everyone laughed; no one was hurt by this joke. In the subtle question of humor you should not be goodies”.147

Based on this seemingly particular question, the problem of the effect of the limits of the information distribution is revealed. The fact that there is such a discussion (and this is just one of many possible examples in this area) demonstrates the absence of a solution

146Chernykh A., Karpenko M., Mironova K. Rospotrebnadzor Defeated a Superhero. Part of the Comic Book about Deadpool is not Allowed to Print in Russia.

147Ibid.

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that is currently shared by the professional community. At the same time, we note that the above discussion is an exchange of private opinions, and not law enforcement practice.

By the way, the question of the content of the comics is relevant not only for modern Russia. In the USA, it appeared in the middle of the XXth century against the background of a wave of popularity of these publications. The authors of the article in Kommersant cite the opinion of an expert in the field of comic culture, the author of a thematic channel in the Telegram, Ulyana Chesnokova, who mentions the “Comics Code” of the USA of 1954.148 The creation of this “Code”, which was an act of industry self-regulation, was due to the fact that in a country often perceived as the “cradle of freedom of speech”, in some cities in the 1940s prohibitions were established and some comic books were burned publicly.149 In the 1955, the Senate hearings were held in the United States on controversial comics (with an adult focus). The hearings were linked to the F. Wertham horror comic “Seduction of the Innocent”, on the cover of which a drawing of a severed head of a woman was depicted.150 M. Costello leads the following dialogue between William Gaines (comic book publisher) and Senator Estes Kefauver:

«Kefauver: Do you think it is a good taste?

Gaines: Yes sir. I suppose so, for the cover of the horror comic. A cover in bad taste would depict a head taller so that it was visible that blood was dripping from the neck and flowing further down the body, so that the neck was stained with blood.

Kefauver: In your picture, blood flows from her mouth. Gaines: A little.

Kefauver: Blood is on the axe as well. I think most adults will be shocked by this».151

148Ibid.

149See: Costello M.J. Secret Identity Crisis: Comic Books and the Unmasking of Cold War America. New York: Continuum. 2009. P. 7; Nyberg A.K. Seal of Approval: The Origins and History of the Comics Code. Vol 1. Jackson: University Press of Mississippi, 1994. P. 26. – [Electronic resource]. – [Site]. – URL: https://books.google.ru/books?id=WGDschFUKRQC&hl=ru&source=gbs_navlinks_s (accessed: 15.01.2019).

150See: Wilson M.D. Comics Bogeyman: A Look Back at ‘Seduction of the Innocent’ // Comic Alliance. – [Electronic resource]. – [Site]. – URL: http://comicsalliance.com/history-fredric-wertham-seduction-of-the-innocent/ (accessed: 15.01.2019).

151Costello M.J. Secret Identity Crisis: Comic Books and the Unmasking of Cold War America. P. 7.

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As a result, the industry took the path of self-censorship and created the “Comic Code” on 26 October 1954.152 It is curious that the content of the Code reflects many of the prohibitions and restrictions of information legislation currently known with regard to the public dissemination of certain types of content, including the Internet. Let us note here a few examples. Thus, it is stipulated that “crimes should never be portrayed in such a way as to create sympathy for the criminal, distrust the forces of law and order or justice, or others have a desire to imitate the criminals”. According to the Code, “police officers, judges, civil servants and relevant authorities should never be portrayed in such a way as to disrespect the authorities”. Among other things, the Code states that “scenes or tools associated with the walking dead, torture, vampires and vampirism, ghouls, cannibalism and werewolves are prohibited”. Forbidden are swearing and obscene words, as well as words and symbols that have received “unwanted meanings”. A ban on mockery or an encroachment on any religious or racial group is established. It is noteworthy that the United States Comic Code also protects traditional family values, up to a ban on the ironic attitude to divorce or depicting this act as desirable. These are just a few typical examples. In general, the Code was used as a tool for self-regulation, allowing determining the attitude to information products and to third parties, including advertisers. By the 2000s, given the generally changed situation, publishers gradually began to deviate from the rigorous use of the markings provided for by the Code in favor of alternative and softer ways to classify content.153 However, this development did not affect the urgency of the problem itself, a characteristic example of which is the case of Castillo v. Texas, 79 S.W. 3d 817 (Tex. 2002).154 In this case, the court applied criminal penalty to the seller of comics “for adults” who sold one of these comic books from a special restricted section for

152См.: The Comics Code of 1954 // Comic Book Legal Defense Fund. – [Electronic resource]. – [Site]. – URL: http://cbldf.org/the-comics-code-of-1954/ (accessed: 15.01.2019).

153Abandonment / Comics Code Authority // Wikipedia. – [Electronic Resource]. – [Site]. URL: https://en.wikipedia.org/wiki/Comics_Code_Authority#cite_note-3 (accessed: 15.01.2019).

154See: CBLDF Case Files – Texas v. Castillo [Electronic resource] // Comic Book Legal Defense Fund. – [Site]. – URL: http://cbldf.org/about-us/case-files/cbldf-case-files/castillo/ (accessed: 21.02.2019).

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adults to an adult (as it turned out to be it was a policeman in civilian attire), making sure that he was of appropriate age. The prosecutor, however, voiced the “iron” argument that all the same, “everyone knows” that comics themselves, in any case, are intended for children.

At the same time, the creation of the Comics Code can be considered the beginning of a long process of developing self-regulation and self-censorship of American organizations, which is now mainly expressed in developing rules regarding content on various user platforms (for example, the famous YouTube155) and substantively, but adjusted for other priorities of the political and sociocultural context, is not much different from the content of the norms of public law in jurisdictions that follow mainly direct legislative regulation of informational relations, such as Russia.

§ 3.6. Jokes, anecdotes and parodies within and outside of the limits of appropriateness from the legal standpoint

In the previous paragraphs, we have touched some examples of the semantic limits of law that relate to the areas of artistic imagination. Besides that, apparently, there is one more area that is relevant to the problem, but it slightly differs from fictional works that are protected, to one extent or another, by copyright. It is the “unserious” – jokes, anecdotes and other similar cultural artifacts (let us draw your attention to the Internet memes of the XXIst century as well), that relate to the domains of humor and satire. One of the most sensitive day-to-day implications of the semantic limits of law throughout the whole history of humanity is indirectly expressed in a long-standing question of whether it is possible to be imprisoned for an anecdote. In this case the semantic limits of law define the line that demarcates humor or satire from insult or other similar juridical phenomenon

155 See: YouTube Policies and Safety [Electronic resource] // YouTube. – [Site]. – URL: https://www.youtube.com/intl/en-GB/yt/about/policies/#community-guidelines (accessed: 21.02.2019).

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connected to violation of non-property rights. The methodology of creating a descriptive model of such a demarcation resembles the dichotomy of “imaginary” – “real”. However, the real underlying dichotomy is somewhat different. What is fun is not necessarily something imaginary.

We have mentioned copyright, and in this case, it makes sense to recall such a phenomenon as parody. In the context of this work, we suggest to view the peculiarities of legal regime of parodies from the standpoint of copyright that presupposes certain degree of exclusions from the general rules. Thus, for example, Item 4 Article 1274 of the RF CC (“Free use of work in informational, scientific, educational or cultural purposes”) directly provides that creating a work pertaining to the genre of literature, musical or other parody in a cartoon based on other (original) work that was legally published, and use of such parodies or cartoon is permitted without a consent of the author or other right-holder of the original work, and without paying remuneration to the latter. What else this could be but an example of positive establishment of the semantic limits of law in respect of exclusive right? In an ordinary situation, where an object of social relationship is not a parody work (but “serious” ones instead), in order to create and, furthermore, use a parody (cartoon) of the original work, it would be necessary to receive the corresponding license form the holder of the exclusive right to the original work. In this case – not. The reason is that, from the standpoint of common sense, the provisions on exclusive rights cannot be applied to what is a kind of joke.156 Nevertheless, we shall pay attention to the case law that

156 It should be noted that the literature provides the view that the legal nature of parodies differs from that of derivative works, and that is why the legislation of various countries, including the Russian Federation, includes a “superexclusion” for parodies. Thus, for example, S. Zykov notes that “the fact that a parody is not subject to the treatment of a derivative or composite work also answers the question raised above about the reason for the absence of a parody in the indicative list of derivative works, i.e., created as a result of processing. It could be stated that processing covers the creation of a derivative work (translation, processing, screening, arrangement, staging, etc.), with the exception of a parody. A closer look also reveals a substantial difference between a parody and a processing: in the latter case, at least the internal form of the work remains. Changes take place in the external form of the work, for example, when translating from one language to another or when transferring a prose work into a scripted one. When parodying, the internal form undergoes significant changes, the system of images is presented in a new ratio in order to achieve a comic effect, which is a significant and necessary feature of the parody”. Further, the author refers to the experience of the United States of America and speaks about such a necessary

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provides not formal, but substantial approach to determination of whether some derivative work can be considered as a parody.

Let us return to the legal problematics of humor and satire. As S.V. Borisov and A.V. Zherebchenko state,

«application of criminal law on liability for crimes of extremist nature shall also consider… the provisions of the Declaration on freedom of political debate in the media»,157 in particular the ones which state that “humor and satire… allow high degree of exaggeration, even provocation, on condition that the society is not confused about the actual state of affairs”».158

In this case, as we can note in the context of the present paper, the semantic limits of law are built upon the criteria of confusing the society about the factual state of affairs.

One of the most prominent examples of determining the semantic limits of law in the communication that (as the court established – incorrectly) was alleged to be “unserious”, is presented by the practice of the European Court of Human Rights. The contents of the decision of ECtHR of 20 October 2015 on the case M’Bala M’Bala v. France (application No. 25239/13)159 highlight the following facts of the case:

«[i]n December 2008, the applicant, who is a comedian using the pseudonym “Dieudonné” and who has engaged in political activities, put on a performance in which he invited an

attribute of a parody as recognizability. See: Zykov S. The Problem of Attributing Parodies to Derivative Works: Isn’t It Time to Stop the Discussion? [Electronic resource] // Copyright and Neighbouring Rights. 2017. No. 4 – Access from legal reference system “ConsultantPlus” (accessed; 24.08.2019). That is why we would not accept the approach, since it does not include consideration of the issue of copyright, in particular on characters. The fact is that according to Item 7 Article 1259 of the Civil Code of the Russian Federation, the copyright applies to a part of the work, its title, and the character of the work, if by their nature they can be recognized as an independent result of the author’s creative work and meet the requirements set forth in Item 3 Article 1259 of the Civil Code of the Russian Federation. It is extremely difficult to avoid the creation of a derivative work from the character in the creation of a parody precisely in conditions where recognizability is a necessary quality of the parody.

157Borisov S.V., Zherebchenko A.V. Excitation of Hatred and Enmity, Humiliation of Human Dignity: Problems of Establishment and Implementation of Criminal Responsibility. Monograph / Edited by S.V. Borisov. M.: Jurisprudence, 2015.

–264 p. – Access from the legal reference system “ConsultantPlus” (accessed: 10.01.2018). – Para. 695 / 2233.

158Cit. by: Borisov S.V., Zherebchenko A.V. Excitation of Hatred and Enmity, Humiliation of Human Dignity: Problems of Establishment and Implementation of Criminal Responsibility. – Para. 703 / 2233

159Information on the ECtHR judgment of 20.10.2015 in the case of M’Bala M’Bala v. France (complaint No. 25239/13) [Electronic resource] // Bulletin of the European Court of Human Rights. – 2016. – No. 3. – Access from the legal reference system «ConsultantPlus» (accessed: 10.01.2018). [The English translation is provided according to the official translation of the case into English available here: http://hudoc.echr.coe.int/eng?i=002-10948].

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academic who had received a number of convictions in France for his negationist and revisionist opinions, mainly his denial of the existence of gas chambers in concentration camps, to join him on stage at the end of the show. The applicant called up an actor wearing what was described as a “garment of light” – a pair of striped pyjamas reminiscent of the clothing worn by Jewish deportees, with a stitched-on yellow star bearing the word “Jew” – to award the academic a “prize for unfrequentability and insolence”. The prize took the form of a three-branched candlestick (the seven-branch candlestick being an emblem of the Jewish religion), with an apple crowning each branch. The incident was recorded by the police. In October 2009 the tribunal de grande instance found the applicant guilty of public insults directed at a person or group of persons on account of their origin or of their belonging, or not belonging, to a given ethnic community, nation, race or religion, specifically in this case persons of Jewish origin or faith. The court sentenced him to a fine of EUR 10,000, awarding a token euro in damages to each civil party. The Court of Appeal upheld the judgment and the Court of Cassation dismissed the applicant’s appeal on points of law».

The cornerstone part of the decision that directly relates to the question in consideration is reflected in the following paragraph:

«The Court thus took the view that, during the offending scene, the performance had no longer constituted entertainment but had taken on the appearance of a political meeting. The applicant could not claim, in the particular circumstances and in the light of the whole context of the case, that he had acted in his capacity as an artist with the right to express himself using satire, humour and provocation. In the guise of a comic sketch he had called upon one of the best known French negationists, who had been convicted a year earlier for calling into question crimes against humanity, in order to pay tribute to him and give him a platform. Thus, in the context of a preposterous and grotesque mise en scène, he had brought onto the stage an actor, dressed as a Jewish deportee in a concentration camp, who awarded a prize to the academic. In this promotion of negationism, through the key position given to the guest’s appearance and the degrading portrayal of Jewish deportation victims faced with a man who had denied their extermination, the Court saw a demonstration of hatred and anti-Semitism and support for Holocaust denial. In the Court’s view, the expression of an ideology which ran counter to the basic values of the Convention, as stated in its Preamble, namely justice and peace, could not be considered a performance which, even if satirical or provocative, fell within the protection of Article 10 of the Convention».160

Based on the methodological approach suggested in this paper, it can be said that the ECtHR, therefore, defined the semantic limits of law applicable to the situation in consideration.

160 Ibid.

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§ 3.7. Materials that lost their relevance in the context of the “right to be forgotten”

The areas of artistic (imaginary) and unserious (humor and satire), which were discussed earlier, and the area of the games, which was discussed in the previous paragraph and will be discussed further, are not the only relevant subjects of study. Materials that can be called “historical” or, more broadly, no longer relevant, are also directly related to the problem of the semantic limits of law. As was shown earlier, problems with the interpretation of legal texts, aimed, for example, at setting restrictions on the dissemination of information, may be relevant not only for fiction, but also for reality – in terms of the events of bygone days, many of which are no longer relevant for the present.

As an illustration of the fact that this aspect of the problem is already beginning to be realized in the legislation, one can draw attention to how the “right to be forgotten” is now implemented in the Information Law,161 embodied in Article 10.3 of the specified normative legal act. This article imposes on the operator of the search engine to which this rule applies according to the criterion of targeting,162 the obligation to stop, following a request of individual, the issuance of information allowing access to information about the applicant, which is, inter alia, «irrelevant, no longer relevant for the applicant due to subsequent events or actions of the applicant, except for information on events containing indications of criminal offenses, terms of criminal responsibility which have not expired, and information on the commission of a crime by a citizen, for which his conviction has not

161It should be noted that the conventional title “right to be forgotten” as applied to the special norm on the obligations of a search engine operator, which in Russia is more important than the special legal norm in the field of public-law regulation of relations on the Internet, does not fully coincide with a similar “right to be forgotten” in the GDPR, which is now interpreted as a special norm of legislation on personal data. However, the source of both approaches is common – the case of Mario Costeja Gonzalez, ECtHR. See: Google Spain SL and Google Inc. v. the Spanish Data Protection Agency (AEPD) and Mario Costeja Gonzalez [Electronic resource] // Bulletin of the European Court of Human Rights. Russian edition. – 2014. – No. 9. – P. 22–23. – Access from the legal reference system «ConsultantPlus» (accessed: 10.01.2018).

162Article 10.3 of the Information Law, by virtue of a direct instruction, applies to search engine operators who distribute Internet advertising aimed at consumers located in the territory of the Russian Federation. Such an indication in itself is one of the discussion approaches to the definition of jurisdiction on the Internet, but the consideration of these special issues of information law is beyond the scope of this paper.

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been lifted or cancelled». It can be said that this article, in a certain sense, contains an example of individual criteria for the semantic limits of law: loss of meaning due to subsequent events or actions of the applicant. At the same time, the semantic limits of law, in this sense, do not go beyond the specified information about acts in the field of criminal law practice. An example of the “right to be forgotten” seems to be very relevant for this part of the study. With regret we are forced to note that the explanatory note to the draft federal law, which, as a result, was introduced into Article 10.3 of the Information Law, does not disclose approaches to how to understand other signs of «irrelevance» of information.163

§ 3.8. Problems of legal separation between gambling games and games that cannot be considered as the gambling ones

As another area that can serve as a source for examples, we can recall the problem of determining whether this or that game is gambling from the point of view of law or not. The problem of differentiation between gambling and non-gambling, at first glance, is narrow and sectoral. However, at the same time, the philosophical and legal dimension corresponding to the subject of the present study can be seen in this problem too. In most jurisdictions and cultures, gambling is viewed as a sociocultural practice that has negative value and requires the intervention of the legislator to impose prohibitions or, at minimum, restrictions. In this connection, the problem of the legal qualification of games as gambling and non-gambling arises, complicated by the ambiguity of the words “gambling” and “game” in ordinary language. In addition, there is another facet of the problem of legal

163 Explanatory note for the Draft Law No. 804132–6 «On Amendments to the Federal Law «On Information, Information Technologies and Information Protection» and Articles 29 and 402 of the Civil Procedural Code of the Russian Federation» with regard to the establishment of obligations of search system operators when distributing information about citizens» [Electronic resource] // Legislative support system (SOZD). – [Site]. – URL: http://sozd.parliament.gov.ru/bill/804132–6 (accessed: 21.02.2019).

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regulation of gambling as such. In the legal systems of many countries of the world, relations connected with the organization of gambling and participation in them are considered as an acceptable subject of legal regulation from the point of view of prohibitions and restrictions. At the same time, the requirements arising from these relations are often not subject to judicial protection by direct indication of the law. This aspect is also directly related to the subject of this study.

Before turning to the consideration of game activities that are not related to gambling, we shall give a brief analysis of the situation with the regulatory regulation of gambling games themselves – this area is a very good example of assessing the subject of social relations in terms of criteria of unseriousness and fantasy, which will be described in more detail later, in the context of the methodology of the present study.

The legal policy reflected in the current Russian legislation restricts and strictly regulates the organization and conduct of gambling. Unlike cultural, ethological and other interpretations,164 the legislative definition of gambling does not directly link this process with the psychological phenomenon of “hazard” as such (otherwise, almost any game could be considered gambling). According to Item 1 Article 4 of the Federal Law of 29.12.2006 No. 244-FZ,165 a gambling game is a risk-based agreement about prize concluded between two or more participants of such a game between themselves or with the gambling organizer according to the rules established by the gambling organizer. At first glance, this definition can or should be applied to a game as such (for example, playing poker or playing roulette). However, in reality, this definition implies the legal qualification not of the game as such, but of an agreement on how to play the game. In the context of the present work, there is an obvious parallel between the fact that both

164See e.g.: Ponukalina O.V. Consumer Society Games: Daily Occurrence Designing // Proceedings of Saratov State Technical University. 2009. No.1. P. 1–7; Akhundova L.A., Azarova E.A. Gambling as a Form of Non–Chemical Addiction in Modern Society // Innovative science. 2016. No. 4–5 (16). P. 91–93.

165On state regulation of gambling activities and on amendments to some legislative acts of the Russian Federation [Electronic resource]: Federal Law No. 244–FZ of 29.12.2006 (ed. of 25.12.2018). – Access from the legal reference system «ConsultantPlus» (accessed: 21.02.2019).