Messenger spam: is the law broken?
In the era of the Internet and wearable gadgets, a stream of information flows over us, control of which is the key to peace of mind. Not all information is chosen by ourselves; part is imposed without our consent.
Take, for example, smartphones and various instant messengers used for interpersonal communication. Like someone, and I just recently started to appear messages from unfamiliar numbers with advertising.
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Not being able to fight independently with imposed content, we turn to the state for help.
The state helps us to the best of its quickness for technology. And we can appeal to the two laws FZ-38 “On Advertising” and FZ-126 “On Communications” .
Sometimes you can still refer to FZ-152 “About personal data” , but the telephone number itself is not personal data, since it is impossible to determine the belonging of personal data to a particular subject of personal data without using additional information.
So, if in the case of SMS distribution there are clear steps to limit yourself to your loved one, described on the FAS website, then in the case of different IM * mailings, not everything is unambiguous. The same FAS cannot decide whether such a distribution is a violation of the laws:
Formally, sending via messengers does not fall under the FZ-126 “On Communications” , as it does not match the wording:
And accordingly does not work:
The user of the messenger, setting it himself, agrees to the terms of use
The advertiser and the advertising distributor participate in the mailing list. The latter is the de facto operator that transmits information via the Public Communication Network and takes remuneration for it. Both “Operator” and “Public Communication Network” are terms of the FZ-126 “On Communications” and should be regulated based on licensing for “Telematic Communication Services” and “Communication Services for Data Transmission, with the exception of communication services for data transmission for voice information. " If this is not the case, then the following responsibility occurs:
But here it is also necessary to find this advertising distributor. When we receive a message, we see only a mobile phone number, but who is this number registered with - this information cannot be officially received, perhaps as part of an investigation, only the police and several law enforcement agencies of a higher order, such as the FSB, FSO, SVR, etc.
The advertiser of course violates the terms of service
Switch to FZ-38 "On Advertising"
those. any message sent over the general communication networks falls under this law (not just SMS) and proof of the fact that the subscriber agrees to receive the newsletter lies with the advertising distributor. But again, it must be identified.
But we still know who the advertising customer is, otherwise, without this identification, it would be useless.
We look at the Federal Law-38 “On Advertising” : the advertiser is responsible for violating the requirements only in terms of the correctness of the content of the text of the proposal itself. Obligation to collect consent to receive advertising in any way is not assigned to him (maybe he was looking badly?), There is an obligation to collect consent to the processing and transmission of personal data, but as I wrote above, the mobile number is not personal data.
The role of the advertising distributor can be shifted to the advertiser and thus confirmed his duty to collect consent to receive advertising. For example, there is an agreement for sending an advertisement or a customer sends out an advertisement from his personal number, but first the message must be identified as an advertisement and not a personal message:
What is the “indefinite circle of persons” is explained in the Letter of the Federal Antimonopoly Service of April 5, 2007 N AC / 4624 . It turns out, if the message correctly addresses me by my name - is this not an advertisement? This is sending to a certain circle of people and does not fall under the law "On Advertising"?
But the totality of data: phone number and full name - are personal data, they can be used to identify the person. There is a duty to obtain consent for the processing of personal data.
As I understand it: if you did not give consent, then the advertisement or personal appeal is a violation of the laws and you can protect yourself from receiving information from this particular advertiser.
If you receive messages that you consider to be advertising (spam) and you did not give consent to contact you on behalf of the advertiser’s organization, you must complain to FAS.
If you received a message sent personally to you on behalf of an organization to which you did not consent to the processing of your personal data, you must complain to Roskomnadzor.
Although, I have not found a single solution related to IM * messages.
Take, for example, smartphones and various instant messengers used for interpersonal communication. Like someone, and I just recently started to appear messages from unfamiliar numbers with advertising.
')
Not being able to fight independently with imposed content, we turn to the state for help.
The state helps us to the best of its quickness for technology. And we can appeal to the two laws FZ-38 “On Advertising” and FZ-126 “On Communications” .
Sometimes you can still refer to FZ-152 “About personal data” , but the telephone number itself is not personal data, since it is impossible to determine the belonging of personal data to a particular subject of personal data without using additional information.
So, if in the case of SMS distribution there are clear steps to limit yourself to your loved one, described on the FAS website, then in the case of different IM * mailings, not everything is unambiguous. The same FAS cannot decide whether such a distribution is a violation of the laws:
Formally, sending via messengers does not fall under the FZ-126 “On Communications” , as it does not match the wording:
Article 2. p.22.1. Mobile radio telephone communication network - automatic transmission of short text messages to subscribers (messages consisting of letters and (or) characters typed in a certain sequence) via mobile radio telephone communication network or transmission of short text messages to subscribers using a numbering system inconsistent with the Russian system and numbering plan, as well as messages, the transmission of which is not provided for by the contract on inter-network interaction with foreign telecom operators.
And accordingly does not work:
Article 44.1
- Distribution over the mobile radio telephone communication network (hereinafter referred to as broadcasting) should be subject to obtaining the prior consent of the subscriber, expressed by performing actions uniquely identifying this subscriber and allowing him to reliably determine his will to receive the broadcast. Distribution shall be deemed to have been carried out without the prior consent of the subscriber, if the customer of the distribution, in case of distribution on his initiative, or the mobile radiotelephone operator, in the case of distribution on the initiative of the mobile radiotelephone operator, does not prove that such consent was obtained.
- The distribution over the mobile radio telephone communication network at the initiative of the distribution customer is carried out on the basis of an agreement concluded with the mobile radio telephone communication operator whose subscriber is intended to be distributed. The subject of this contract are services for the implementation of the mailing operator.
- Sending over the mobile radio telephone communication network, carried out in violation of the requirements of this Federal Law, is illegal, except for sending messages in order to inform the subscriber in connection with the transfer of the subscriber number and other messages that the telecom operator is obliged to carry out in accordance with the legislation of the Russian Federation, as well as sending messages on the initiative of the federal executive authorities, state extra-budgetary funds, executive bodies of the state oh authorities of the subjects of the Russian Federation, local administrations and other bodies of local self-government exercising executive and administrative powers in accordance with the legislation of the Russian Federation.
The user of the messenger, setting it himself, agrees to the terms of use
2. WhatsApp Servicethose. the service is not responsible for the content that is delivered to its user, and on the territory other than the United States you can not even bother with their claims. It is proposed to use the built-in functions to block unwanted messages.
WhatsApp Service. WhatsApp Service may be linked to whatsapp. WhatsApp has no control over privacy policies, privacy policies, or practices. In addition, it will not be possible to censor or edit the content of any third-party site. It is not necessary to express your opinion.
6. Warranty Disclaimer
YOU AGREE THAT YOUR SOUTH RISK THAT YOUR RELAPS ... AND AGAIN, US THIS JUST FOR THE FUN.
7. Limitation of Liabilit
... The Service is controlled by whatsapp from the United States of America. WhatsApp makes it possible to use it in other locations. Those who are responsible for compliance with local law
The advertiser and the advertising distributor participate in the mailing list. The latter is the de facto operator that transmits information via the Public Communication Network and takes remuneration for it. Both “Operator” and “Public Communication Network” are terms of the FZ-126 “On Communications” and should be regulated based on licensing for “Telematic Communication Services” and “Communication Services for Data Transmission, with the exception of communication services for data transmission for voice information. " If this is not the case, then the following responsibility occurs:
- According to the Code of Administrative Offenses Article 14.1. Doing business without state registration or without special permission (license) entails the imposition of an administrative fine in the amount of from five hundred to fifty thousand rubles
- According to the Criminal Code of the Russian Federation Article 171. Illegal business.
Doing business without registration or without a license in cases where such a license is obligatory, if this act caused major damage to citizens, organizations or the state or is associated with deriving income on a large scale (1,500,000 rubles), is punishable by a fine of up to three hundred thousand rubles or in the amount of the salary or other income of the convict for a period of up to two years, or compulsory work for up to four hundred and eighty hours, or arrest for up to six months.
But here it is also necessary to find this advertising distributor. When we receive a message, we see only a mobile phone number, but who is this number registered with - this information cannot be officially received, perhaps as part of an investigation, only the police and several law enforcement agencies of a higher order, such as the FSB, FSO, SVR, etc.
The advertiser of course violates the terms of service
3. WhatsApp Access ... nor for use. For commercial purposes, any users of the Servicebut again, the validity of this agreement is only in the United States.
Switch to FZ-38 "On Advertising"
- Article 13. Provision of information by the advertiser.
At the request of the distributor, the advertiser is obliged to provide documented information about the compliance of the advertisement with the requirements of this Federal Law, including information about the availability of a license, mandatory certification, and state registration.- Article 18. Advertising distributed by telecommunication networks.
Distribution of advertising over telecommunication networks, including through the use of telephone, facsimile, mobile radio telephone communications, is allowed only with the prior consent of the subscriber or recipient to receive advertising. In this case, the advertisement is deemed to be widespread without the prior consent of the subscriber or the addressee, unless the advertising distributor proves that such consent was obtained. The advertising distributor is obliged to immediately stop the distribution of advertising to the address of the person who applied to him with such a requirement.
those. any message sent over the general communication networks falls under this law (not just SMS) and proof of the fact that the subscriber agrees to receive the newsletter lies with the advertising distributor. But again, it must be identified.
But we still know who the advertising customer is, otherwise, without this identification, it would be useless.
We look at the Federal Law-38 “On Advertising” : the advertiser is responsible for violating the requirements only in terms of the correctness of the content of the text of the proposal itself. Obligation to collect consent to receive advertising in any way is not assigned to him (maybe he was looking badly?), There is an obligation to collect consent to the processing and transmission of personal data, but as I wrote above, the mobile number is not personal data.
The role of the advertising distributor can be shifted to the advertiser and thus confirmed his duty to collect consent to receive advertising. For example, there is an agreement for sending an advertisement or a customer sends out an advertisement from his personal number, but first the message must be identified as an advertisement and not a personal message:
Article 3. Clause 1. Advertising - information disseminated in any way, in any form and using any means, addressed to an indefinite circle of persons and aimed at drawing attention to the object of advertising, the formation or maintenance of interest in it and its promotion in the market
What is the “indefinite circle of persons” is explained in the Letter of the Federal Antimonopoly Service of April 5, 2007 N AC / 4624 . It turns out, if the message correctly addresses me by my name - is this not an advertisement? This is sending to a certain circle of people and does not fall under the law "On Advertising"?
But the totality of data: phone number and full name - are personal data, they can be used to identify the person. There is a duty to obtain consent for the processing of personal data.
As I understand it: if you did not give consent, then the advertisement or personal appeal is a violation of the laws and you can protect yourself from receiving information from this particular advertiser.
If you receive messages that you consider to be advertising (spam) and you did not give consent to contact you on behalf of the advertiser’s organization, you must complain to FAS.
If you received a message sent personally to you on behalf of an organization to which you did not consent to the processing of your personal data, you must complain to Roskomnadzor.
Although, I have not found a single solution related to IM * messages.
Source: https://habr.com/ru/post/260989/
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