“Internet law”: is it necessary?
March 16 in the Duma held parliamentary hearings on the "regulation of the Internet." In addition to the on-duty themes of “pedophilia” and “pornography”, the so-called law “on the Internet” was also discussed. Rather, the bill. It provides for many changes to the law “On Information, Information Technologies and 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, let's discuss ...
What is information?
The authors of the project propose to change the very concept of “information” on which the whole law is based. Now, "information" means "information regardless of the form of their presentation." The project plans to change 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 what it took to do. The authors may have remembered court practice in defamation cases, in which the “information” and “opinion” are clearly separated from each other. But there is no need to carry out such a division in the information legislation: the information that someone has a certain opinion, so the information remains, they will be covered by the already existing definition of “information”.
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In due time, we have already stopped on the question of how “information” differs from a copyrighted work. Actions with them are regulated by different laws, for information it is the law “On Information ...”, and for copyright - the fourth part of the Civil Code of the Russian Federation. The division directly mentions: the Civil Code contains an indication that “informational messages” are not protected by copyright, and the Law “On Information ...” states that it does not apply to “relations arising from the legal protection of intellectual property ". Of course, the same file can be a protected work, and "information", and in this case, the legal relations associated with it are governed by both laws.
So, the authors of the draft law do not seem to see the difference between the informational and copyright laws. They propose to exclude from the law an indication that it does not extend to the sphere of copyright, and to include in the list 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 equal to them means of individualization (intellectual property). " That is, “information” and works, it is proposed to simply mix.
Confusion is observed in other basic concepts of civil law. For example, in the third article, listing the basic principles of legal regulation that are applied in the law, it is proposed to supplement this principle: “ensuring the unity of the information space, and the free movement of goods, services and financial resources expressed in digital form”. But neither the product nor the service can not be "expressed in digital form," because the product is a thing intended for sale, and the service is an action or activity. It is more appropriate to speak in this case about the “provision of services using computer networks”. In addition, the third article of the law in the draft is for some reason numbered with the number "4". This is some kind of quite awesome inattention, because immediately after the changes to the third article, there are changes to the fourth, where it is numbered correctly. However, we will return to the question of accuracy in writing regulations.
Invention of a bicycle
An unnecessary change in the concept of “information” is not the only dubious innovation of the project. One more concept, which refers to the main in law, “information and telecommunication network” has undergone changes. This term means any computer network in general, the law defines it as “a technological system designed to transmit information via communication lines, which is accessed using computer technology”. The authors of the draft law plan to replace this definition with the following: “The global computer network (the Internet and other global information and communication networks of general access) is an open access information and communication infrastructure that forms a virtual interactive information environment in which a global ( geographically and jurisdictionally unlimited), the circulation of information in various modes of access, expressed in electronic digital form. " As it is easy to see, any network, from the Internet to "local network", falls under the existing definition of "network". But his version, which is offered in the project, covers only the Internet. Why do so? No answer.
Or, for example, the definition of a “web site”: “an information system (a set of information and information technologies), which is a readable virtual interactive medium that provides access to information through the Internet at certain network addresses”. "Virtual" is called something imaginary, non-existent. And under the "information carrier" in the legislation is understood, as a rule, it is the material carrier. So, the phrase “virtual carrier” is meaningless, not to mention the fact that this “carrier” must somehow manage to be also “interactive” ...
In its current form, the law "On Information ..." describes any network and any transfer of information. The reformers, with their project, seem to want to “tie” it to the Internet alone. It is not entirely clear why this is being done. And this is not the only meaningless innovation in the project. They also plan to add to the law article 15 , 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 “peculiarities” there, it speaks of general principles of regulation: the President and the Government, as well as federal executive bodies are allowed to make decrees, decrees and other acts regulating information legal relations. They have this right, and so it is, that is exactly what all the listed organs are doing, and why in addition they need to allow it - again, it is not clear.
The same situation is with article 16 , which describes the rules for resolving conflicts between normative acts in the event of their conflict with each other. Such conflicts have long been successfully resolved on the basis of the general principles of the application of legislation. 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 that served as the basis for the start of the flow of time”. At the same time, Article 190 of the Civil Code of the Russian Federation connects the beginning of the term not with noon, but with midnight.
The draft also proposes the principles according to which the Russian legislation will be applied if the parties of the legal relationship are located in another country. But only here the 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.
Liability issues
The issue of responsibility for information disseminated on the network has already been reviewed . Let me remind you: now the law "On Information ..." contains an exemption from liability for those users who stored information without knowing about its illegal nature, and those who transmitted it without changes. This exemption does not apply when it comes to copyright infringements, but, as experience with litigation with site owners and hosts shows , similar principles exist there, only they are not enshrined directly in the law, but follow from the general principles of civil law.
The authors of the project and here decided to originate. First of all, they made changes to the article on liability for violations of the law, according to which “the person who directly disseminates such information bears responsibility for the compliance of the information disseminated with the law.” True, this is all they have confused. Because it is completely incomprehensible who "directly distributes" information. Whoever uploaded it to the site? Or the site owner with the help of his equipment? Or the owner of the 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 the person who “initiated” such distribution to be the person who distributed the work on the Internet. This formulation is much more understandable and unambiguous. The “person initiating the transfer of the material” is also mentioned in the draft amendments to the Civil Code of the Russian Federation related to the exemption of providers (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” - because the authors did not disclose the meaning of the word “directly” in this context.
However, this is not all: the article on responsibility is planned to be supplemented with a part that states that “the provisions of this article apply (sic! - pr) to users of global computer networks acting as domain administrators and (or) as operators of websites registered in order as a media. " That is, only the media will be exempted from such an edition of the article, whereas now the article applies to everyone.
About accuracy
In addition to all this, one can note the low level of the so-called “law-making technique”, that is, those techniques with which the texts of the normative acts are drawn up. For example, “good form” is considered to be the preservation of all old article numbers after changes: new articles are added with indices “approx 1”, “approx 2”, and so on. According to the general rules, they are written in the form of "superscripts", but very often, due to the fact that such indexes are not supported by all editors, you have to write regular-size numbers, separated by a period from the main number. If some 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 unspecified number of other acts or just legal articles may refer to each normative act. If an article changes its number, all links to it will immediately become invalid. And worse, they will lead to a completely different article. Actually, therefore, it is necessary to observe this simple rule. 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, moving the numbering of existing ones. A bad idea: if changes are made, when reading any text that refers to the “trivial” law, you will have to constantly find out which version of the law is meant, old or new.
For some reason, the authors of the bill persistently call parts of the articles of the law “points”, although they are called “parts” (to be sure, you can look into the third part of the sixteenth article). And having seen two thirds of the clause in the draft article of the twelfth article of the law, do not be surprised: it is so in the original.
Actually, this bill is not new. Last year, the previous edition was published in his blog by Deputy Robert Schlegel. Schlegel himself was also present at the discussion in the Duma, the participants of which were informed that he had “posted a link to the new edition to Twitter”. Last year, Twitter was not so popular, so Schlegel had to use LiveJournal. True, this entry is not available now. 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 the text was edited only slightly, there did not even die out two “third points”, not to mention the other shortcomings. Why "promote" such a frankly crude and ill-considered law is not clear. But he, fortunately, has not yet been submitted to the Duma. And, perhaps, not necessary.
What is information?
The authors of the project propose to change the very concept of “information” on which the whole law is based. Now, "information" means "information regardless of the form of their presentation." The project plans to change 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 what it took to do. The authors may have remembered court practice in defamation cases, in which the “information” and “opinion” are clearly separated from each other. But there is no need to carry out such a division in the information legislation: the information that someone has a certain opinion, so the information remains, they will be covered by the already existing definition of “information”.
')
In due time, we have already stopped on the question of how “information” differs from a copyrighted work. Actions with them are regulated by different laws, for information it is the law “On Information ...”, and for copyright - the fourth part of the Civil Code of the Russian Federation. The division directly mentions: the Civil Code contains an indication that “informational messages” are not protected by copyright, and the Law “On Information ...” states that it does not apply to “relations arising from the legal protection of intellectual property ". Of course, the same file can be a protected work, and "information", and in this case, the legal relations associated with it are governed by both laws.
So, the authors of the draft law do not seem to see the difference between the informational and copyright laws. They propose to exclude from the law an indication that it does not extend to the sphere of copyright, and to include in the list 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 equal to them means of individualization (intellectual property). " That is, “information” and works, it is proposed to simply mix.
Confusion is observed in other basic concepts of civil law. For example, in the third article, listing the basic principles of legal regulation that are applied in the law, it is proposed to supplement this principle: “ensuring the unity of the information space, and the free movement of goods, services and financial resources expressed in digital form”. But neither the product nor the service can not be "expressed in digital form," because the product is a thing intended for sale, and the service is an action or activity. It is more appropriate to speak in this case about the “provision of services using computer networks”. In addition, the third article of the law in the draft is for some reason numbered with the number "4". This is some kind of quite awesome inattention, because immediately after the changes to the third article, there are changes to the fourth, where it is numbered correctly. However, we will return to the question of accuracy in writing regulations.
Invention of a bicycle
An unnecessary change in the concept of “information” is not the only dubious innovation of the project. One more concept, which refers to the main in law, “information and telecommunication network” has undergone changes. This term means any computer network in general, the law defines it as “a technological system designed to transmit information via communication lines, which is accessed using computer technology”. The authors of the draft law plan to replace this definition with the following: “The global computer network (the Internet and other global information and communication networks of general access) is an open access information and communication infrastructure that forms a virtual interactive information environment in which a global ( geographically and jurisdictionally unlimited), the circulation of information in various modes of access, expressed in electronic digital form. " As it is easy to see, any network, from the Internet to "local network", falls under the existing definition of "network". But his version, which is offered in the project, covers only the Internet. Why do so? No answer.
Or, for example, the definition of a “web site”: “an information system (a set of information and information technologies), which is a readable virtual interactive medium that provides access to information through the Internet at certain network addresses”. "Virtual" is called something imaginary, non-existent. And under the "information carrier" in the legislation is understood, as a rule, it is the material carrier. So, the phrase “virtual carrier” is meaningless, not to mention the fact that this “carrier” must somehow manage to be also “interactive” ...
In its current form, the law "On Information ..." describes any network and any transfer of information. The reformers, with their project, seem to want to “tie” it to the Internet alone. It is not entirely clear why this is being done. And this is not the only meaningless innovation in the project. They also plan to add to the law article 15 , 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 “peculiarities” there, it speaks of general principles of regulation: the President and the Government, as well as federal executive bodies are allowed to make decrees, decrees and other acts regulating information legal relations. They have this right, and so it is, that is exactly what all the listed organs are doing, and why in addition they need to allow it - again, it is not clear.
The same situation is with article 16 , which describes the rules for resolving conflicts between normative acts in the event of their conflict with each other. Such conflicts have long been successfully resolved on the basis of the general principles of the application of legislation. 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 that served as the basis for the start of the flow of time”. At the same time, Article 190 of the Civil Code of the Russian Federation connects the beginning of the term not with noon, but with midnight.
The draft also proposes the principles according to which the Russian legislation will be applied if the parties of the legal relationship are located in another country. But only here the 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.
Liability issues
The issue of responsibility for information disseminated on the network has already been reviewed . Let me remind you: now the law "On Information ..." contains an exemption from liability for those users who stored information without knowing about its illegal nature, and those who transmitted it without changes. This exemption does not apply when it comes to copyright infringements, but, as experience with litigation with site owners and hosts shows , similar principles exist there, only they are not enshrined directly in the law, but follow from the general principles of civil law.
The authors of the project and here decided to originate. First of all, they made changes to the article on liability for violations of the law, according to which “the person who directly disseminates such information bears responsibility for the compliance of the information disseminated with the law.” True, this is all they have confused. Because it is completely incomprehensible who "directly distributes" information. Whoever uploaded it to the site? Or the site owner with the help of his equipment? Or the owner of the 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 the person who “initiated” such distribution to be the person who distributed the work on the Internet. This formulation is much more understandable and unambiguous. The “person initiating the transfer of the material” is also mentioned in the draft amendments to the Civil Code of the Russian Federation related to the exemption of providers (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” - because the authors did not disclose the meaning of the word “directly” in this context.
However, this is not all: the article on responsibility is planned to be supplemented with a part that states that “the provisions of this article apply (sic! - pr) to users of global computer networks acting as domain administrators and (or) as operators of websites registered in order as a media. " That is, only the media will be exempted from such an edition of the article, whereas now the article applies to everyone.
About accuracy
In addition to all this, one can note the low level of the so-called “law-making technique”, that is, those techniques with which the texts of the normative acts are drawn up. For example, “good form” is considered to be the preservation of all old article numbers after changes: new articles are added with indices “approx 1”, “approx 2”, and so on. According to the general rules, they are written in the form of "superscripts", but very often, due to the fact that such indexes are not supported by all editors, you have to write regular-size numbers, separated by a period from the main number. If some 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 unspecified number of other acts or just legal articles may refer to each normative act. If an article changes its number, all links to it will immediately become invalid. And worse, they will lead to a completely different article. Actually, therefore, it is necessary to observe this simple rule. 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, moving the numbering of existing ones. A bad idea: if changes are made, when reading any text that refers to the “trivial” law, you will have to constantly find out which version of the law is meant, old or new.
For some reason, the authors of the bill persistently call parts of the articles of the law “points”, although they are called “parts” (to be sure, you can look into the third part of the sixteenth article). And having seen two thirds of the clause in the draft article of the twelfth article of the law, do not be surprised: it is so in the original.
Actually, this bill is not new. Last year, the previous edition was published in his blog by Deputy Robert Schlegel. Schlegel himself was also present at the discussion in the Duma, the participants of which were informed that he had “posted a link to the new edition to Twitter”. Last year, Twitter was not so popular, so Schlegel had to use LiveJournal. True, this entry is not available now. 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 the text was edited only slightly, there did not even die out two “third points”, not to mention the other shortcomings. Why "promote" such a frankly crude and ill-considered law is not clear. But he, fortunately, has not yet been submitted to the Duma. And, perhaps, not necessary.
Source: https://habr.com/ru/post/116199/
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