The Line Between Recklessness and Crime: Responsibility for Spreading Rumors in Wartime

At a time when our country is at war, every word can have great weight and consequences. Rumors, distorted information and fakes can not only create panic in society, but also directly threaten the national security of the state. That is why strict liability is provided for their distribution in Ukraine.

Lawyers of the “Repeshko and Partners” Bar Association comment on why it is important to be responsible for one’s words and how careless dissemination of false information can lead to serious legal consequences.

We are used to perceiving freedom of speech as something natural and integral to our everyday life. A democratic state differs from a totalitarian regime in that it has a wide range of civil rights, and the more rights, the more democratic the state. However, almost every right corresponds to an obligation.

But currently, the war in Ukraine continues for the third year. Losses on it, as well as information on the number of dead are a state secret. Also in accordance with the Decree of the President of Ukraine “On the Introduction of Martial Law in Ukraine”, the Law of Ukraine “On the Legal Regime of Martial Law”, the Law of Ukraine “On Information”, the order of the Commander-in-Chief of the Armed Forces of Ukraine on the prohibition of the dissemination of information, the disclosure of which could lead to the enemy’s awareness of actions of the Armed Forces of Ukraine, the following information is prohibited from being disclosed due to the negative impact on the performance of assigned tasks during the legal regime of martial law:

• losses of combat (special) equipment and personnel, if such information was not disseminated by the General Staff of the Armed Forces of Ukraine or other components of the defense forces (a new item on the list);
• the results of enemy missile and air strikes against military objects (targets), critical infrastructure objects, if such information was not disseminated by the General Staff of the Armed Forces of Ukraine or other components of the defense forces (corresponds to the previous version of the list);
• publication of photo or video materials with destroyed (hit, damaged) samples of weapons and military equipment of foreign production, which were provided as part of logistical assistance from partner countries.
• the number of weapons and combat equipment, material and technical means, their condition and storage locations;
• information about missing or downed aircraft, aircraft, missing ship and search and rescue operations that are planned or carried out;
• information on the planning and implementation of measures to ensure the security of the use of troops (disinformation, imitation, demonstrative actions, masking, countering technical intelligence and information protection);
• information about informational and psychological operations carried out, those that are being carried out, as well as those that are planned.

The disclosure of such and similar information falls under a number of articles of the Criminal Code of Ukraine (CPC). In particular, Art. 259 of the Criminal Code defines: “Knownly false notification of a threat to the safety of citizens, destruction or damage to property is punishable by imprisonment for a term of two to six years.”

In addition, in Art. 110 of the Criminal Procedure Code emphasizes: “Intentional actions committed with the aim of changing the boundaries of the territory or the state border of Ukraine in violation of the order established by the Constitution of Ukraine, as well as public appeals or distribution of materials with appeals to commit such actions, are punishable by deprivation of liberty for a term of three to five years with or without confiscation of property. The same actions, if they are committed by a person who is a representative of the authorities, or repeatedly, or with a prior conspiracy by a group of persons, or are combined with inciting national or religious enmity, are punishable by imprisonment for a term of five to ten years with or without confiscation of property such Actions provided for by parts one or two of this article, which lead to the death of people or other serious consequences, are punishable by imprisonment for a term of ten to fifteen years or life imprisonment with or without confiscation of property.

So, even in a democratic society, freedom of speech is not an absolute and unconditional category. In accordance with Article 34 of the Constitution of Ukraine and Article 10 of the Convention on the Protection of Human Rights and Fundamental Freedoms, freedom of speech may be limited by the state in some cases, but these limitations must be established by law and be balanced between state interests and the necessity of such limitation from the point of view of a democratic society.

Quite often, information of a completely different nature spreads among society. According to rumors, Kharkiv had to be surrounded by enemy troops twenty times already. Almost every time a rocket hits a residential area, word of mouth conveys the “true” number of dead and wounded, which differs from official reports. It is possible for ordinary citizens to understand something – the lack of official information gives rise to rumors and gossip, which are instantly spread among the population. However, in wartime conditions, it is necessary, more than ever, to be responsible citizens, because without this, a democratic society cannot exist either.

Article 173 exists in the Code of Ukraine on Administrative Offenses (ACC).-1, which stipulates that the spread of false rumors that can cause panic among the population or a violation of public order – entails the imposition of a fine of ten to fifteen tax-free minimum incomes of citizens or corrective work for a period of up to one month with a deduction of twenty percent of earnings. In monetary terms, the amount of the fine will be from 170 to 255 hryvnias. Punishment in the form of correctional works is more significant. But it is necessary to remember that bringing to administrative responsibility characterizes a person as an antisocial element. In the future, when the fate of a person may be decided in the case of deprivation of parental rights or prosecution, this small drop will be counted and may tilt the scales against the person.

In order to better understand what exactly the AUC is about and what administrative responsibility is provided for, it is necessary to master the basic concepts specified in the text. A rumor is news, information about someone, something. In the plural – this is information, news, the veracity of which has not been established. Panic is a mental state of people, an unconscious, uncontrollable fear caused by a real or imagined danger involving a person or many people, an uncontrolled desire to avoid a dangerous situation. It arises against the background of insufficient or excessive information about events, but the key factor is the psyche of the subject. Public order is a certain part of social relations regulated by legal and other social norms, which make up the regime of life in the respective regions, ensure the inviolability of life, health and dignity of citizens, property and conditions created for the normal operation of institutions, enterprises, organizations, officials individuals and citizens.

In order for a person to be prosecuted under this article of the ALCA, the following conditions must be present:

• the information disseminated by a person must be false, while such a person knew or understood that the information was false;
• the nature of the information we are disseminating may cause panic or a violation of public order, and the person who disseminated this information understood the possibility of such consequences (intentional form of guilt), or should have understood (negligent form of guilt).

Thus, the object of this administrative offense is public relations in the sphere of public order protection.

It should be noted that any natural criminal who has reached the age of 16 can be held liable under the specified article. The protocol for this administrative violation is drawn up by police officers, but the case is already under consideration and the fine is imposed by the local court.

This norm was introduced in the ALCA in 1997, but it was not widely used. With the start of the coronavirus pandemic, and then the start of the war in the country, it finally gained popularity, so to speak. Thus, according to the data of the Unified State Register of Court Decisions in the country, in 2017 – two cases, in 2018 – seven cases, in 2019 – seven cases, in 2021 – thirty-eight cases, in 2022 – thirty cases, in 2024 – already ten cases.

The mentioned statistics indicate a small number of fines imposed for the following reasons:

• improper drawing up of an offense report – it is sent back to the police for further processing, from where it usually does not return;
• the case is closed in connection with the absence of the event and composition of the administrative offense;
• The person is released from administrative responsibility – in connection with the expiration of the term of imposing an administrative penalty. Local courts are overwhelmed with all kinds of cases, and therefore, taking into account the above-mentioned statistics on these cases, they are exotic and not so important for the courts compared to criminal or violent cases.

Two of the three named reasons why the persons against whom the administrative protocols were drawn up are not brought to justice are related to the evidentiary base in the mentioned cases.

A false rumor is any report about anyone or anything that is not true. For example: “Yesterday night, the local meat processing plant dumped sewage and chemicals into the Tyche reservoir from which the entire city of Dzerkalne receives its water. Due to this, all the fish in the reservoir died, and poisonous water went to the city through the pipes, which the sewage treatment facilities are unable to clean, so the city is threatened with a pandemic in three days. All those who have the opportunity to do so are asked to leave the city immediately.”

Such a message can be made both verbally and by putting up leaflets or, which most often happens nowadays, using the Internet through social networks, for example, Facebook or through other communication networks and through groups in the communication application Viber or Telegram, Tik -tok and others. On the one hand, it can be considered that when using social networks and applications, having posts on the page or messages in the chat, it is 100% possible to prosecute. But this is not true. For this to happen, the person must plead guilty. The point is that you need to prove that this particular phone number from which the message was sent belongs to this particular person. Or that the Facebook page really belongs to Pyotr Sydorenko, because no one asks for a passport when it is created. As for the phone number, it is possible to calculate only the contract subscriber, in case of purchase of a prepaid service SIM card, the owner can be identified only by some secondary signs – for example, the person is an official FOP and this number is specified for communication from announcements on Prom to tax declarations

Thus, by the Chuguyiv City Court of the Kharkiv Region, case No. 636/2293/24, a person was found guilty of spreading false rumors using a mobile phone on the Telegram social network, which could cause a breach of public order, as she fully admitted her guilt.

In turn, the Loziv interdistrict court of the Kharkiv region under law No. 629/2653/24 closed the proceedings due to the absence of an event and the composition of an administrative offense, although the person was accused of having posted on the social network Facebook about the citizen PERSON_2 with false testimony, which spread false rumors. Passing the resolution, the court noted: “Taking into account the above, the court cannot establish whose explanations and appeals are meant, copies of which documents and materials were attached, and the protocol on an administrative offense in itself cannot be indisputable proof of a person’s guilt in that or other act, since it does not represent an imperative fact of proving the guilt of a person, that is, it does not comply with the standard of proof “beyond a reasonable doubt”, since the data available in it do not follow from the coexistence of sufficiently convincing, clear and mutually agreed upon conclusions or similar irrefutable presumptions of fact” .

However, it should be taken into account that the spread of false rumors, which did not and could not cause panic or entail a violation of public order, does not fall under the scope of Art. 173-1 KUAP.

Thus, we are dealing with the active actions of a person, while the person understands or should understand the consequences of his actions.

So, before spreading questionable information in any way, think carefully about the consequences of doing so, as well as how far the information you receive may correspond to reality and objective reality.