March 25, 2011 at 15:27“Internet Law”: is it needed?
On March 16, parliamentary hearings on “Internet regulation” were held in the Duma. In addition to the on-duty topics of “pedophilia” and “pornography”, the so-called law “on the Internet” was also discussed on it . Rather, the bill. It provides for the introduction of many amendments to the law "On Information, Information Technologies and the Protection of Information." According to the authors, these changes will bring the law in line with current realities, mainly with the widespread use of the Internet. The project was published on the website of the Duma for general discussion. Well then, let's discuss ...
What is information?
The authors of the project propose changing the very concept of “information”, on which the whole law is based. Now under the "information" refers to "information regardless of the form of presentation." The project plans to amend this definition so that it includes “information (messages, data) about persons, objects, facts, events, phenomena and processes, as well as opinions about them”. It is not clear why this was necessary. Perhaps the authors recalled judicial practice in cases of protection of honor and dignity, in which "information" and "opinion" are clearly separated from each other. But in the information legislation there is no need to carry out such a division: information that someone has a definite opinion remains the same with information, they will be covered by the already existing definition of “information”.
In due time we alreadydwelled on the question of how "information" differs from a work protected by copyright. Actions with them are regulated by different laws, for information this is the law "On Information ...", and for copyrights - the fourth part of the Civil Code of the Russian Federation. The separation is directly mentioned in them: the Civil Code indicates that "informational communications" are not protected by copyright, and the law "On Information ..." states that it does not apply to "relations arising from the legal protection of the results of intellectual activity ". Of course, the same file can be both a protected work and “information”, in which case the legal relations connected with it are regulated by both laws.
So, the authors of the bill do not seem to see the difference between the information and copyright laws. They propose to exclude from the law an indication that it does not apply to the field of copyright, and to include in the number of legal relations to which “ensuring the rights and legitimate interests of participants in the circulation of information, including those arising from the legal protection of intellectual property and equivalent to them means of individualization (intellectual property). ” That is, the "information" and the work, it is proposed to simply mix.
Confusion is observed in other basic concepts of civil law. For example, in the third article, listing the main principles of legal regulation that apply in the law, it is proposed to supplementsuch a principle: “ensuring the unity of the information space, and the free movement of goods, services and financial means expressed in electronic digital form”. But neither a product nor a service can be "digitally expressed", because a product is a thing intended for sale, and a service is an action or activity. It is more appropriate to speak in this case of "the provision of services using computer networks." In addition, the third article of the law in the draft is for some reason numbered "4". This is some absolutely terrific carelessness, because immediately after the changes to the third article, the changes go to the fourth, where it is numbered correctly. However, we will return to the issue of accuracy in writing regulatory acts.
Invention of the bicycle
An unnecessary change in the concept of “information” is not the only dubious innovation of the project. Another concept has undergone changes, which refers to the main ones in the law, “information and telecommunication network”. This term refers to any computer network in general, the law defines it this way: "a technological system designed to transmit information over communication lines, access to which is carried out using computer technology." The authors of the bill plan to replace this definition with the following: “a global computer network (the Internet and other global information and communication networks of general access) - an information and communication infrastructure of open access, forming a virtual interactive information environment, in which, in the interests of an unlimited circle of users, global (territorially and jurisdictionally unlimited) information flow in various access modes, expressed in electronic digital form, is provided. ” As it is easy to see, the existing definition of “network” includes any network, from the Internet to “LAN”. But his version, which is proposed in the project, covers only the Internet. Why do this? No answer.
Or, for example, the definition of “website”: “an information system (a combination of information and information technology), which is a virtual interactive medium that is accessible to perception and provides access to information via the Internet at certain network addresses.” "Virtual" is called something imaginary, non-existent. And by “information carrier” in the legislation is meant, as a rule, just a material carrier. So the phrase “virtual medium” is already meaningless, not to mention that this “medium” must somehow manage to be also “interactive” ...
In its current form, the law "On Information ..." describes any network and any transmission of information. Reformers with their project seem to want to “tie” it to the Internet alone. It is not clear why this is done. And this is not the only meaningless innovation in the project. They also plan to add article 15 to the law., which describes the features of "the application of legislative acts regulating activities using global computer networks." Upon closer examination, however, it turns out that there are no "features" there, it speaks of general principles of regulation: the President and the Government, as well as federal executive bodies are allowed to adopt decisions, decrees and other acts regulating information relations. They already have the right to do this, that is exactly what all of the above bodies are doing, and why they should additionally be allowed to do this, again, is not clear.
The same situation is with article 16.describing the rules for resolving conflicts between normative acts in case of their contradiction to each other. Such conflicts have long and successfully been resolved based on the general principles of application of the law. Or, for example, the question of calculating the terms of the bill: it is proposed to calculate them from "12 noon Moscow time, full days following incomplete days, during which there were circumstances of legal significance, which served as the basis for the beginning of the term." Moreover, Article 190 of the Civil Code of the Russian Federation connects the beginning of the term not with noon, but with midnight.
The draft principles are also proposed in accordance with which Russian law will be applied if the parties to the legal relationship are located in another country. Yes, only this section of the Civil Code " Private International Law " regulates this issue in more detail. And the norms of the Civil Code of the Russian Federation will be applied if the “law on the Internet” conflicts with them.
Questions of responsibility
We have already examined the question of responsibility for information distributed on the network. Let me remind you: now the law "On Information ..." contains an exemption from liability for those users who stored information without knowing its illegal nature, and those who transmitted it unchanged. This exemption does not apply when it comes to copyright infringement, but, as experience in litigation with site owners and hosters shows , similar principles exist there, only they are not fixed directly in the law, but follow from the general principles of civil law.
The authors of the project here decided to make the original. First of all, they made amendments to the article on liability for violations of the law, according to which "the person directly disseminating such information is responsible for the compliance of the information disseminated with the requirements of the law." True, they only confused everything with this. Because it is completely unclear who "directly distributes" the information. The one who uploaded it to the site? Or the owner of the site using his technology? Or the owner of a domain name with which seditious material can be found? No answer.
In one of the “copyright” cases, the Supreme Arbitration Court of the Russian Federation considered a person who distributed the work on the Internet the one who “initiated” such distribution. This wording is much more understandable and unambiguous. The “person who initiated the transfer of material” is also mentioned in the draft amendments to the Civil Code of the Russian Federation related to the exemption of providers from liability (this rule is very similar to that contained in the law “On Information ...”). This approach was worth using in the project. And now it is completely incomprehensible who he is, this “direct distributor” - since the authors did not disclose the meaning of the word “directly” in this context.
However, this is not all: the article on liability is planned to be supplemented with a part that establishes that “the provisions of this article apply (sic! - pr) to users of global computer networks acting as domain administrators and (or) website operators registered in the established order as a media. ” That is, only the media will be exempted from liability in such a version of the article, whereas now the article applies to everyone.
About accuracy
In addition to all this, it is possible to note the low level of the so-called "legislative technique", that is, those techniques with which the texts of normative acts are compiled. For example, preserving after changing all the old article numbers is considered “good form”: new articles are added with the indexes "note 1", "note 2", and so on. As a general rule, they are written in the form of “superscripts”, but very often, due to the fact that such indices are not supported by all editors, you have to write regular-sized digits, separated from the main number by a dot. If any article or paragraph is excluded, then the remaining articles and paragraphs do not “shift” and do not change the numbering: the place of the deleted text remains empty.
This is done for a reason: an indefinite number of other acts or simply legal articles can refer to each normative act. If an article changes its number, all links to it will immediately become invalid. And worse than that: they will lead to a completely different article. Actually, therefore, this simple rule must be observed. The authors of the bill do not comply with it: for example, they want to replace the fifteenth article of the law with a completely different article, but with the same fifteenth number. After it, insert three more articles, shifting the numbering of existing ones. Bad idea: if changes are made, when reading any text that refers to the “three-headed” law, you will have to constantly find out which version of the law is meant, old or new.
Even the authors of the bill for some reason persistently call parts of the articles of the law “points”, although they are called “parts” (to be sure, you can look at the third part of the sixteenth article). And when you see two third paragraphs in the draft twelfth article of the law, do not be surprised: it’s so in the original.
In fact, this bill is not new. Last year, his previous edition was published.MP Robert Schlegel on his blog. Schlegel himself was present at the discussion in the Duma, the participants of which were informed that he had “posted on Twitter a link to the new edition.” Twitter wasn’t so popular last year, so Schlegel had to use LiveJournal. True, this entry is currently unavailable. Unfortunately, changing LJ to twitter is one of the most significant changes to the bill. If you read the previous version, then make sure that its text has been edited only slightly, two “third points” have not even become extinct, not to mention the other shortcomings. Why “promote” such a frankly crude and ill-conceived law is incomprehensible. But he, fortunately, has not yet been submitted to the Duma. And perhaps not.
What is information?
The authors of the project propose changing the very concept of “information”, on which the whole law is based. Now under the "information" refers to "information regardless of the form of presentation." The project plans to amend this definition so that it includes “information (messages, data) about persons, objects, facts, events, phenomena and processes, as well as opinions about them”. It is not clear why this was necessary. Perhaps the authors recalled judicial practice in cases of protection of honor and dignity, in which "information" and "opinion" are clearly separated from each other. But in the information legislation there is no need to carry out such a division: information that someone has a definite opinion remains the same with information, they will be covered by the already existing definition of “information”.
In due time we alreadydwelled on the question of how "information" differs from a work protected by copyright. Actions with them are regulated by different laws, for information this is the law "On Information ...", and for copyrights - the fourth part of the Civil Code of the Russian Federation. The separation is directly mentioned in them: the Civil Code indicates that "informational communications" are not protected by copyright, and the law "On Information ..." states that it does not apply to "relations arising from the legal protection of the results of intellectual activity ". Of course, the same file can be both a protected work and “information”, in which case the legal relations connected with it are regulated by both laws.
So, the authors of the bill do not seem to see the difference between the information and copyright laws. They propose to exclude from the law an indication that it does not apply to the field of copyright, and to include in the number of legal relations to which “ensuring the rights and legitimate interests of participants in the circulation of information, including those arising from the legal protection of intellectual property and equivalent to them means of individualization (intellectual property). ” That is, the "information" and the work, it is proposed to simply mix.
Confusion is observed in other basic concepts of civil law. For example, in the third article, listing the main principles of legal regulation that apply in the law, it is proposed to supplementsuch a principle: “ensuring the unity of the information space, and the free movement of goods, services and financial means expressed in electronic digital form”. But neither a product nor a service can be "digitally expressed", because a product is a thing intended for sale, and a service is an action or activity. It is more appropriate to speak in this case of "the provision of services using computer networks." In addition, the third article of the law in the draft is for some reason numbered "4". This is some absolutely terrific carelessness, because immediately after the changes to the third article, the changes go to the fourth, where it is numbered correctly. However, we will return to the issue of accuracy in writing regulatory acts.
Invention of the bicycle
An unnecessary change in the concept of “information” is not the only dubious innovation of the project. Another concept has undergone changes, which refers to the main ones in the law, “information and telecommunication network”. This term refers to any computer network in general, the law defines it this way: "a technological system designed to transmit information over communication lines, access to which is carried out using computer technology." The authors of the bill plan to replace this definition with the following: “a global computer network (the Internet and other global information and communication networks of general access) - an information and communication infrastructure of open access, forming a virtual interactive information environment, in which, in the interests of an unlimited circle of users, global (territorially and jurisdictionally unlimited) information flow in various access modes, expressed in electronic digital form, is provided. ” As it is easy to see, the existing definition of “network” includes any network, from the Internet to “LAN”. But his version, which is proposed in the project, covers only the Internet. Why do this? No answer.
Or, for example, the definition of “website”: “an information system (a combination of information and information technology), which is a virtual interactive medium that is accessible to perception and provides access to information via the Internet at certain network addresses.” "Virtual" is called something imaginary, non-existent. And by “information carrier” in the legislation is meant, as a rule, just a material carrier. So the phrase “virtual medium” is already meaningless, not to mention that this “medium” must somehow manage to be also “interactive” ...
In its current form, the law "On Information ..." describes any network and any transmission of information. Reformers with their project seem to want to “tie” it to the Internet alone. It is not clear why this is done. And this is not the only meaningless innovation in the project. They also plan to add article 15 to the law., which describes the features of "the application of legislative acts regulating activities using global computer networks." Upon closer examination, however, it turns out that there are no "features" there, it speaks of general principles of regulation: the President and the Government, as well as federal executive bodies are allowed to adopt decisions, decrees and other acts regulating information relations. They already have the right to do this, that is exactly what all of the above bodies are doing, and why they should additionally be allowed to do this, again, is not clear.
The same situation is with article 16.describing the rules for resolving conflicts between normative acts in case of their contradiction to each other. Such conflicts have long and successfully been resolved based on the general principles of application of the law. Or, for example, the question of calculating the terms of the bill: it is proposed to calculate them from "12 noon Moscow time, full days following incomplete days, during which there were circumstances of legal significance, which served as the basis for the beginning of the term." Moreover, Article 190 of the Civil Code of the Russian Federation connects the beginning of the term not with noon, but with midnight.
The draft principles are also proposed in accordance with which Russian law will be applied if the parties to the legal relationship are located in another country. Yes, only this section of the Civil Code " Private International Law " regulates this issue in more detail. And the norms of the Civil Code of the Russian Federation will be applied if the “law on the Internet” conflicts with them.
Questions of responsibility
We have already examined the question of responsibility for information distributed on the network. Let me remind you: now the law "On Information ..." contains an exemption from liability for those users who stored information without knowing its illegal nature, and those who transmitted it unchanged. This exemption does not apply when it comes to copyright infringement, but, as experience in litigation with site owners and hosters shows , similar principles exist there, only they are not fixed directly in the law, but follow from the general principles of civil law.
The authors of the project here decided to make the original. First of all, they made amendments to the article on liability for violations of the law, according to which "the person directly disseminating such information is responsible for the compliance of the information disseminated with the requirements of the law." True, they only confused everything with this. Because it is completely unclear who "directly distributes" the information. The one who uploaded it to the site? Or the owner of the site using his technology? Or the owner of a domain name with which seditious material can be found? No answer.
In one of the “copyright” cases, the Supreme Arbitration Court of the Russian Federation considered a person who distributed the work on the Internet the one who “initiated” such distribution. This wording is much more understandable and unambiguous. The “person who initiated the transfer of material” is also mentioned in the draft amendments to the Civil Code of the Russian Federation related to the exemption of providers from liability (this rule is very similar to that contained in the law “On Information ...”). This approach was worth using in the project. And now it is completely incomprehensible who he is, this “direct distributor” - since the authors did not disclose the meaning of the word “directly” in this context.
However, this is not all: the article on liability is planned to be supplemented with a part that establishes that “the provisions of this article apply (sic! - pr) to users of global computer networks acting as domain administrators and (or) website operators registered in the established order as a media. ” That is, only the media will be exempted from liability in such a version of the article, whereas now the article applies to everyone.
About accuracy
In addition to all this, it is possible to note the low level of the so-called "legislative technique", that is, those techniques with which the texts of normative acts are compiled. For example, preserving after changing all the old article numbers is considered “good form”: new articles are added with the indexes "note 1", "note 2", and so on. As a general rule, they are written in the form of “superscripts”, but very often, due to the fact that such indices are not supported by all editors, you have to write regular-sized digits, separated from the main number by a dot. If any article or paragraph is excluded, then the remaining articles and paragraphs do not “shift” and do not change the numbering: the place of the deleted text remains empty.
This is done for a reason: an indefinite number of other acts or simply legal articles can refer to each normative act. If an article changes its number, all links to it will immediately become invalid. And worse than that: they will lead to a completely different article. Actually, therefore, this simple rule must be observed. The authors of the bill do not comply with it: for example, they want to replace the fifteenth article of the law with a completely different article, but with the same fifteenth number. After it, insert three more articles, shifting the numbering of existing ones. Bad idea: if changes are made, when reading any text that refers to the “three-headed” law, you will have to constantly find out which version of the law is meant, old or new.
Even the authors of the bill for some reason persistently call parts of the articles of the law “points”, although they are called “parts” (to be sure, you can look at the third part of the sixteenth article). And when you see two third paragraphs in the draft twelfth article of the law, do not be surprised: it’s so in the original.
In fact, this bill is not new. Last year, his previous edition was published.MP Robert Schlegel on his blog. Schlegel himself was present at the discussion in the Duma, the participants of which were informed that he had “posted on Twitter a link to the new edition.” Twitter wasn’t so popular last year, so Schlegel had to use LiveJournal. True, this entry is currently unavailable. Unfortunately, changing LJ to twitter is one of the most significant changes to the bill. If you read the previous version, then make sure that its text has been edited only slightly, two “third points” have not even become extinct, not to mention the other shortcomings. Why “promote” such a frankly crude and ill-conceived law is incomprehensible. But he, fortunately, has not yet been submitted to the Duma. And perhaps not.