Telematic services and compulsory licensing

  • Tutorial
What are telematic services, TM-communication, etc., even IT specialists cannot say for sure, let alone lawyers. But nevertheless, we decided to tackle the complex terms and consider them from the point of view of legislation. A kind of mix of jurisprudence and computer science. What we have on Wikipedia, we won’t touch on; we’ll try to consider only what is not there.




The legislation of our Fatherland does not give us an idea of ​​what is meant by telematic communication services. But the concept of a TM message is defined: this is a telecommunication message containing information structured in accordance with the exchange protocol supported by the interacting information system and the subscriber terminal - this includes almost everything except the telephone and telegraph. A logical question arises: who needs a license to provide telematic communication services? I’ll explain everything now!

Let us turn to the law “On Communication”. In it we see that “the activities of legal entities and individual entrepreneurs in the provision of services for the provision of communications services are carried out only on the basis of a license to carry out activities in the field of communications services”.

This law refers us to the decree of the government of the Russian Federation, which spells out the following: "the provision of communication services for sending telematic messages is included in the list of services subject to licensing."

That is, obtaining a license is necessary for those who provide:
  1. access to a communication network;
  2. Internet access
  3. services for the reception and transmission of messages.

Therefore, such a license is necessary for sending SMS, e-mail messages, and even just for access to the Internet (to a provider or for an Internet cafe, as confirmed by numerous court decisions), as well as for hosting. A specific list is not given, so the list goes on.

EXAMPLE
In the Kurgan region, an individual entrepreneur was prosecuted, as the court indicated, for the provision of information services, namely for sending out an astrological horoscope for the next calendar month, as well as a weather forecast.

CONCLUSION A
license is needed for both online stores and information services, because both of these types of online businesses regularly send messages to their customers or customers.

Roskomnadzor, using such a broad formulation of telematic messages and the lack of a clearly defined list of telematic communication services, has the opportunity to be very creative in choosing the basis for punishing Internet entrepreneurs.

Those who are engaged in the Internet business should not neglect obtaining a license for telematics, moreover, given its relatively low cost. As you know, ignorance of the law does not exempt from liability, and the Internet business, like business in general, is obliged to anticipate risks and take measures to prevent violation of the law in order to avoid future problems.

PROBLEMS
Article 14.1 of the Code of Administrative Offenses of the Russian Federation provides that entrepreneurial activity without a license, if required, entails:
  1. The imposition of an administrative fine on legal entities is from 40,000 to 50,000 rubles.
  2. Confiscation of manufactured products, implements and raw materials is possible.
  3. In the worst-case scenario, it may threaten to recognize the activity as unlawful and the court’s ban on engaging in such activities until a telematics license is received, which could ruin the business.

For online stores and various information services, obtaining a license can be avoided if you conclude an agency agreement with a company or service that is in the Roskomnadzor Register on the basis of the existing telematic license, which will send messages to customers and buyers.

It must be said that such a license should be paired with a license for communication services for data transfer, with the exception of communication services for data transfer for the purpose of transmitting voice information.

Hope this information has been helpful to you.

Ilya Lvov, leading lawyer at Zartsyn & Partners, and part-time modest author of this opus.

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