If a Facebook page owner has not restricted access to it, the information on it is publicly available, so the dissemination of posts with symbols of the communist totalitarian regime may constitute a criminal offence under Art. 436-1 (2) of the CCU

If the owner of a page on the Facebook network has not restricted access to it, the information on that page is publicly available to an unlimited number of persons. Consequently, a user's dissemination on that page of posts containing symbols of the communist totalitarian regime may constitute the elements of a criminal offence provided for in Part 2 of Article 436-1 of the Criminal Code of Ukraine – Criminal Cassation Court of the Supreme Court.

In this criminal proceeding, the court of first instance found the defendant guilty and convicted him under Part 2 of Article 436-1 and Part 1 of Article 436-2 of the Criminal Code for disseminating more than 15 posts containing symbols of the communist totalitarian regime on his own pages on the Facebook and VKontakte networks. As a result of the dissemination of these publications and the posting of corresponding comments on the Facebook social network page and the YouTube channel, the information became available for viewing and reading by the audience that accesses those pages on social networks. The appellate court amended this judgment, reclassified the defendant's actions from Part 2 to Part 1 of Article 436-1 of the Criminal Code of Ukraine, stating that posts and publications on the Facebook social network cannot be classified as mass media because they do not possess all the characteristics of mass media as established in the Law of Ukraine "On Media". In the cassation appeal, the prosecutor argues that the appellate court unreasonably concluded that the defendant's actions lacked the qualifying element – the use of mass media.

Overturning the appellate court's ruling and remanding the case for a new hearing in the appellate court, the Supreme Court noted that the appellate court failed to thoroughly analyze the Laws of Ukraine "On Information" and "On Television and Radio Broadcasting" (in the version in force at the time the charged criminal offence was committed). It also failed to take into account that, after the Law of Ukraine "On Media" entered into force on March 31, 2023, no corresponding amendments were made to the Criminal Code of Ukraine – in particular, to Article 436-1 of the Code – regarding the use of the term "mass media".

Furthermore, the appellate court overlooked the fact that social networks and platforms such as Facebook and YouTube are publicly accessible, facilitate communication, enable the dissemination of certain information to an unlimited number of persons, and the method of such dissemination is designed for mass perception. Moreover, the social network Facebook operates in the internet space, and information on users' pages – if the page owner has not restricted access to it – is publicly available. Therefore, this social network serves as a means by which such information is disseminated to an unlimited (indeterminate) circle of persons.

Resolution of the Criminal Cassation Court of the Supreme Court dated October 28, 2025, in case No. 639/1077/23 (proceedings No. 51-184км25) – https://reyestr.court.gov.ua/Review/131853014.

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