On the legal nature of sites on the Internet
Date: 02.27.07
Topic: conclusion on the legal nature of sites on the Internet
LEGAL CONCLUSION
on the legal nature of sites on the Internet
In connection with the numerous appeals of representatives of the mass media regarding the cases of administrative punishment for the lack of registration of Internet sites as mass media, the UNESCO Chair considers it necessary to give a real legal opinion.
')
In preparing this conclusion, the UNESCO Chair proceeds from the assumption that information law issues and, in particular, the rights of mass information are fully within the Department’s scientific activities, as defined by the Agreement between the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the Institute of International Law and Economics named after A.S. Griboyedov on the establishment of the UNESCO Chair in Copyright and other branches of intellectual property law, signed in Paris on June 12, 98 and in Moscow on July 01, 1998.
Based on the analysis of current legislation, its doctrinal interpretation and law enforcement practice, the UNESCO Chair believes it is possible to give the following conclusion.
1. The UNESCO Chair considers it necessary, first of all, to clarify that Russian legislation does not provide a legal definition of the concept of “website” (“website on the Internet”), although it is actively using it. Thus, the term “official website” is found in the Forest, Water, Land and Town Planning Codes, as well as in the Code of Administrative Offenses of the Russian Federation (Article 7.30. “Violation of the procedure for placing an order for the supply of goods, performance of works, provision of services for state or municipal 7.31. "Providing, publishing or placing unreliable information about placing an order for the supply of goods, the performance of works, the provision of services for state or municipal needs, and the sending of reliable data or entering them in the register of state or municipal contracts concluded on the basis of placing orders, the register of unfair suppliers ").
The only normative act giving legal - at the level of regional legislation - the definition of the concept of “site” is the law of the city of Moscow of March 31, 2004 No. 20 “On guarantees of accessibility of information on the activities of state bodies of the city of Moscow”. Here in st. 2 establishes: “the official website of the authority (hereinafter referred to as the official website) is a collection of information resources placed in accordance with the law or by the decision of the relevant authority on the Internet at a specific address published for general information”. It follows that for a regional legislator a site is a certain aggregate of information resources.
However, the very concept of “information resource” also does not have a full legal definition at the level of federal legislation. Previously, it was fixed in Art. 2 of the Federal Law of 20.02.1995 No. 24- “On information, informatization and protection of information”, where it was determined: “information resources - separate documents and separate arrays of documents, documents and arrays of documents in information systems (libraries, archives, funds, banks data, other information systems) ”.
Currently, this law is no longer valid due to the adoption of federal law No. 149- dated July 27, 2006 “On Information, Information Technologies and Protection of Information” (hereinafter - the Law on Information), in which the definition of “information resources” is given only indirectly , and only applied to state information resources. In paragraph 9 of Art. 14 states: “Information contained in state information systems, as well as other information and documents at the disposal of state bodies are state information resources”.
Consequently, in a legal sense, a website as an information resource is a collection of information contained in a particular information system and is at the disposal of the information owner, that is, the person who independently created the information or received “on the basis of a law or contract the right to allow or restrict access to information determined by any signs "(Article 2). However, even a superficial glance at the actual content of modern Internet sites suggests that the practice has far surpassed the legislator and in the present conditions it would be necessary to define the site more broadly - as “a combination of formalized objects in a certain way”.
2. The concept of mass media is exhaustively defined in Art. 2 of the Law of the Russian Federation of December 27, 1991 "On Mass Media" (hereinafter - the Law on Mass Media). It states: “mass media means a periodical print publication, a radio, television, video program, a newsreel program, another form of periodical distribution of mass information”. Obviously, the website is neither a print publication, nor a radio, television, video program, or a newsreel program. Can it be recognized as another form of periodic mass media distribution? The answer to this question requires an analysis of Art. 23 and 24 of the Media Act.
3. The legal nature of other forms of periodic dissemination of mass information is defined in Art. 23 "Informational agencies" and Art. 24 “Other Mass Media” of the Law on Mass Media. Can a website have the legal status of an information agency? This question should be answered in the negative, since, according to Part 1 of Art. 23 of the Law on Mass Media to information agencies "at the same time the status of the editorial board, publisher, distributor and legal regime of the mass media". It is obvious that the status of the editorial board, publisher or distributor can only be owned by a legal entity, but by no means an object of legal relations, which the site as a collection of information can be. Another thing is that the site may belong to an information agency, like any other object of legal relations. However, in this case, the site itself does not become another form of periodic dissemination of the mass media, and therefore does not acquire the legal status of the mass media.
4. If we consider the website in the context of the provisions of Art. 24 “Other Mass Media” of the Law on Mass Media, the following conclusions should be drawn.
Part one of Art. 24 of the Law on Mass Media establishes: “The rules established by this Law for periodicals apply to the periodic distribution of one thousand and more copies of texts created with the help of computers and (or) stored in their banks and databases, as well as to other mass media, whose products are distributed in the form of printed messages, materials, images ”. Obviously, this provision cannot be applied to a website, since the website has neither a circulation nor products distributed “in the form of printed messages, materials, images”. The messages and images that make up the content of the website do not have a printed form: they are visualized only on the computer screen, so that any person can access them "interactively from anywhere and at any time of their choice." Such a method of access is the Law of the Russian Federation “On Copyright and Related Rights” (clause 2 of Article 16), as well as the 1996 WIPO Copyright Law, as being communicated to the public.
5. Not applicable to Internet sites and the provisions of Part 2 of Art. 24, which reads: “The rules established by this Law for radio and television programs are applied to the periodic distribution of mass information through teletext, video text and other telecommunication networks, unless otherwise provided by the legislation of the Russian Federation.” On the one hand, the operation of an Internet site can be interpreted as periodic distribution of mass information through a telecommunications network. This interpretation is supported by the provisions contained in paragraph 9 of Art. 2 of the Law on Information, the definition of the term “information dissemination” as actions aimed at “obtaining information by an indefinite circle of persons or transmitting information to an indefinite circle of persons”.
On the other hand, Part 7 of Art. 2 of the Law on Mass Media gives a fundamentally different definition of the concept “distribution of mass media products”, which is defined as “sale (subscription, delivery, distribution) of periodicals, audio or video recordings of programs, broadcasting radio and television programs (broadcasting), demonstration of newsreel programs. Of course, the site may have copies, but it is unlikely that their number will ever reach one thousand pieces. With the exception of Internet sites through which Internet broadcasting is carried out, all other sites obviously do not fall under the above definition. At the same time, paragraph 2 of Art. 4 of the Law on Information establishes that "the legal regulation of relations connected with the organization and activity of the mass media is carried out in accordance with the legislation of the Russian Federation on the mass media". Consequently, the definition of the term “information dissemination” should be applied in the mass media only to the extent that it does not contradict the Law on Mass Media.
Thus, a website cannot by definition be considered “other media”, and therefore the requirement for the owner of a website to register it as a media outlet is not based on the Law on Mass Media, which only establishes the obligation to register funds mass media. This, however, does not detract from the importance of the suggestions made earlier by a number of members of the UNESCO Chair on the advisability of introducing the compulsory state registration of official websites of state bodies and organizations, as well as business entities.
6. The foregoing does not exclude, but, on the contrary, suggests the possibility of voluntary registration of an Internet site as a media outlet upon the application of its owner. Based on Part 1 of Art. 7 of the Law on Mass Media, any citizen, public association, enterprise, institution, organization, state body has the right to establish a mass medium for disseminating mass media in any form not prohibited by law. Since the creation of websites is not prohibited by law, to the extent that everyone is free to independently choose the measure of his lawful behavior. If the creator of the website wants the legal regime of the media to be distributed to his information resource, he should send an application for registration of this media to the authorized state body in accordance with art. 8, 10 of the Media Act.
7. The conclusion that the website as a general rule is not a mass medium is confirmed by the legal position of the Supreme Court of the Russian Federation. The Resolution of the Plenum of the Supreme Court of the Russian Federation No. 3 of February 24, 2005 “On Judicial Practice in Protecting the Honor and Dignity of Citizens, as well as the Business Reputation of Citizens and Legal Persons” states: “Under the dissemination of information discrediting the honor and dignity of citizens or business reputation citizens and legal entities should understand the publication of such information in the press, broadcasting on radio and television, demonstration in film programs and other media, distribution on the Internet, as well as with Using other means of telecommunication, presentation in official characteristics, public speaking, statements addressed to officials, or a message in one form or another, including verbally, to at least one person. ” Obviously, the “Internet distribution” is indicated here separately from the dissemination of information in the media, especially since the dissemination of information on the Internet can be carried out not only by placing it on a particular website, but also via email, ICQ, etc. .
Moreover, the decision of the Plenum specifically draws the attention of the courts to the fact that “in the event that the defamatory information that did not correspond to the reality was posted on the Internet on an information resource registered in the manner prescribed by law as a mass media , dignity and business reputation should be guided by the rules relating to the media. " Consequently, the website acquires the status of a mass media only by virtue of its voluntary registration as such, and not because of its legal nature.
This is precisely the position taken by the legislators of those foreign countries in which there is a special procedure for the legitimization of the mass media. In none of the foreign industrialized countries, websites do not belong to legislation to the media and are not subject to mandatory registration in this capacity, and their creation and maintenance without registration as a media does not entail the occurrence of legal liability. Attempts to enact legislation enshrining mandatory registration of Internet sites as media were undertaken in 2003–2005 in Turkey and Canada, however, such bills were not adopted, including due to the lack of legal mechanisms for implementing such a legal model for legitimizing Internet sites. .
8. Since, as was shown above, the registration of Internet sites as mass media is not mandatory, to the extent that raising the question of imposing administrative penalties for not registering an Internet site as a mass media seems absurd and devoid of any legal grounds. .
As you know, art. 13.21. Administrative Offenses Code of the Russian Federation “Violation of the procedure for producing or distributing mass media products” establishes administrative responsibility for the “production or distribution of products of an unregistered mass media”. Moreover, in this case, the confiscation of the subject of an administrative offense is not an additional, but the main penalty, along with an administrative fine. However, this punishment cannot be applied to a website, since it is physically impossible to confiscate an information resource. And this is more proof that the creation and maintenance of a website without registering it as a mass media does not contain signs of an administrative offense under Art. 13.21. KoAP of the Russian Federation. We emphasize that the composition of this offense involves precisely a violation of the procedure for the manufacture or distribution of media products. In the case of a website, there is neither the media nor the media products. You should pay attention to Part 6 of Art. 2 of the Law on Mass Media, which defines: “Mass media products are understood as the circulation or part of the circulation of a separate number of a periodical publication, a separate release of a radio, television, newsreel program, circulation or part of the circulation of an audio or video recording of the program”. Obviously, the website has no similar products.
Summarizing the above, the UNESCO Chair for Copyright and other branches of intellectual property law states that a website as a general rule is not a mass medium and is not subject to mandatory registration in this capacity, and its creation and maintenance without registration as a mass media. does not contain signs of an administrative offense under Article. 13.21. KoAP of the Russian Federation.
This conclusion was prepared with the participation of members of the UNESCO Chair: Doctors of Law, Professors M.A. Fedotov, V.N. Lopatin and L.S.Simkin, Candidates of Laws V.O. Kalyatin, V.N. Monakhova, V.B. .Naumova, A.G. Sergo, A.A.Tedeeva.
M.A. Fedotov
Head of the UNESCO Chair,
Doctor of Law, Professor,
Honored Lawyer of the Russian Federation,
Extraordinary and Plenipotentiary Ambassador
Russian Federation
A source
Topic: conclusion on the legal nature of sites on the Internet
LEGAL CONCLUSION
on the legal nature of sites on the Internet
In connection with the numerous appeals of representatives of the mass media regarding the cases of administrative punishment for the lack of registration of Internet sites as mass media, the UNESCO Chair considers it necessary to give a real legal opinion.
')
In preparing this conclusion, the UNESCO Chair proceeds from the assumption that information law issues and, in particular, the rights of mass information are fully within the Department’s scientific activities, as defined by the Agreement between the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the Institute of International Law and Economics named after A.S. Griboyedov on the establishment of the UNESCO Chair in Copyright and other branches of intellectual property law, signed in Paris on June 12, 98 and in Moscow on July 01, 1998.
Based on the analysis of current legislation, its doctrinal interpretation and law enforcement practice, the UNESCO Chair believes it is possible to give the following conclusion.
1. The UNESCO Chair considers it necessary, first of all, to clarify that Russian legislation does not provide a legal definition of the concept of “website” (“website on the Internet”), although it is actively using it. Thus, the term “official website” is found in the Forest, Water, Land and Town Planning Codes, as well as in the Code of Administrative Offenses of the Russian Federation (Article 7.30. “Violation of the procedure for placing an order for the supply of goods, performance of works, provision of services for state or municipal 7.31. "Providing, publishing or placing unreliable information about placing an order for the supply of goods, the performance of works, the provision of services for state or municipal needs, and the sending of reliable data or entering them in the register of state or municipal contracts concluded on the basis of placing orders, the register of unfair suppliers ").
The only normative act giving legal - at the level of regional legislation - the definition of the concept of “site” is the law of the city of Moscow of March 31, 2004 No. 20 “On guarantees of accessibility of information on the activities of state bodies of the city of Moscow”. Here in st. 2 establishes: “the official website of the authority (hereinafter referred to as the official website) is a collection of information resources placed in accordance with the law or by the decision of the relevant authority on the Internet at a specific address published for general information”. It follows that for a regional legislator a site is a certain aggregate of information resources.
However, the very concept of “information resource” also does not have a full legal definition at the level of federal legislation. Previously, it was fixed in Art. 2 of the Federal Law of 20.02.1995 No. 24- “On information, informatization and protection of information”, where it was determined: “information resources - separate documents and separate arrays of documents, documents and arrays of documents in information systems (libraries, archives, funds, banks data, other information systems) ”.
Currently, this law is no longer valid due to the adoption of federal law No. 149- dated July 27, 2006 “On Information, Information Technologies and Protection of Information” (hereinafter - the Law on Information), in which the definition of “information resources” is given only indirectly , and only applied to state information resources. In paragraph 9 of Art. 14 states: “Information contained in state information systems, as well as other information and documents at the disposal of state bodies are state information resources”.
Consequently, in a legal sense, a website as an information resource is a collection of information contained in a particular information system and is at the disposal of the information owner, that is, the person who independently created the information or received “on the basis of a law or contract the right to allow or restrict access to information determined by any signs "(Article 2). However, even a superficial glance at the actual content of modern Internet sites suggests that the practice has far surpassed the legislator and in the present conditions it would be necessary to define the site more broadly - as “a combination of formalized objects in a certain way”.
2. The concept of mass media is exhaustively defined in Art. 2 of the Law of the Russian Federation of December 27, 1991 "On Mass Media" (hereinafter - the Law on Mass Media). It states: “mass media means a periodical print publication, a radio, television, video program, a newsreel program, another form of periodical distribution of mass information”. Obviously, the website is neither a print publication, nor a radio, television, video program, or a newsreel program. Can it be recognized as another form of periodic mass media distribution? The answer to this question requires an analysis of Art. 23 and 24 of the Media Act.
3. The legal nature of other forms of periodic dissemination of mass information is defined in Art. 23 "Informational agencies" and Art. 24 “Other Mass Media” of the Law on Mass Media. Can a website have the legal status of an information agency? This question should be answered in the negative, since, according to Part 1 of Art. 23 of the Law on Mass Media to information agencies "at the same time the status of the editorial board, publisher, distributor and legal regime of the mass media". It is obvious that the status of the editorial board, publisher or distributor can only be owned by a legal entity, but by no means an object of legal relations, which the site as a collection of information can be. Another thing is that the site may belong to an information agency, like any other object of legal relations. However, in this case, the site itself does not become another form of periodic dissemination of the mass media, and therefore does not acquire the legal status of the mass media.
4. If we consider the website in the context of the provisions of Art. 24 “Other Mass Media” of the Law on Mass Media, the following conclusions should be drawn.
Part one of Art. 24 of the Law on Mass Media establishes: “The rules established by this Law for periodicals apply to the periodic distribution of one thousand and more copies of texts created with the help of computers and (or) stored in their banks and databases, as well as to other mass media, whose products are distributed in the form of printed messages, materials, images ”. Obviously, this provision cannot be applied to a website, since the website has neither a circulation nor products distributed “in the form of printed messages, materials, images”. The messages and images that make up the content of the website do not have a printed form: they are visualized only on the computer screen, so that any person can access them "interactively from anywhere and at any time of their choice." Such a method of access is the Law of the Russian Federation “On Copyright and Related Rights” (clause 2 of Article 16), as well as the 1996 WIPO Copyright Law, as being communicated to the public.
5. Not applicable to Internet sites and the provisions of Part 2 of Art. 24, which reads: “The rules established by this Law for radio and television programs are applied to the periodic distribution of mass information through teletext, video text and other telecommunication networks, unless otherwise provided by the legislation of the Russian Federation.” On the one hand, the operation of an Internet site can be interpreted as periodic distribution of mass information through a telecommunications network. This interpretation is supported by the provisions contained in paragraph 9 of Art. 2 of the Law on Information, the definition of the term “information dissemination” as actions aimed at “obtaining information by an indefinite circle of persons or transmitting information to an indefinite circle of persons”.
On the other hand, Part 7 of Art. 2 of the Law on Mass Media gives a fundamentally different definition of the concept “distribution of mass media products”, which is defined as “sale (subscription, delivery, distribution) of periodicals, audio or video recordings of programs, broadcasting radio and television programs (broadcasting), demonstration of newsreel programs. Of course, the site may have copies, but it is unlikely that their number will ever reach one thousand pieces. With the exception of Internet sites through which Internet broadcasting is carried out, all other sites obviously do not fall under the above definition. At the same time, paragraph 2 of Art. 4 of the Law on Information establishes that "the legal regulation of relations connected with the organization and activity of the mass media is carried out in accordance with the legislation of the Russian Federation on the mass media". Consequently, the definition of the term “information dissemination” should be applied in the mass media only to the extent that it does not contradict the Law on Mass Media.
Thus, a website cannot by definition be considered “other media”, and therefore the requirement for the owner of a website to register it as a media outlet is not based on the Law on Mass Media, which only establishes the obligation to register funds mass media. This, however, does not detract from the importance of the suggestions made earlier by a number of members of the UNESCO Chair on the advisability of introducing the compulsory state registration of official websites of state bodies and organizations, as well as business entities.
6. The foregoing does not exclude, but, on the contrary, suggests the possibility of voluntary registration of an Internet site as a media outlet upon the application of its owner. Based on Part 1 of Art. 7 of the Law on Mass Media, any citizen, public association, enterprise, institution, organization, state body has the right to establish a mass medium for disseminating mass media in any form not prohibited by law. Since the creation of websites is not prohibited by law, to the extent that everyone is free to independently choose the measure of his lawful behavior. If the creator of the website wants the legal regime of the media to be distributed to his information resource, he should send an application for registration of this media to the authorized state body in accordance with art. 8, 10 of the Media Act.
7. The conclusion that the website as a general rule is not a mass medium is confirmed by the legal position of the Supreme Court of the Russian Federation. The Resolution of the Plenum of the Supreme Court of the Russian Federation No. 3 of February 24, 2005 “On Judicial Practice in Protecting the Honor and Dignity of Citizens, as well as the Business Reputation of Citizens and Legal Persons” states: “Under the dissemination of information discrediting the honor and dignity of citizens or business reputation citizens and legal entities should understand the publication of such information in the press, broadcasting on radio and television, demonstration in film programs and other media, distribution on the Internet, as well as with Using other means of telecommunication, presentation in official characteristics, public speaking, statements addressed to officials, or a message in one form or another, including verbally, to at least one person. ” Obviously, the “Internet distribution” is indicated here separately from the dissemination of information in the media, especially since the dissemination of information on the Internet can be carried out not only by placing it on a particular website, but also via email, ICQ, etc. .
Moreover, the decision of the Plenum specifically draws the attention of the courts to the fact that “in the event that the defamatory information that did not correspond to the reality was posted on the Internet on an information resource registered in the manner prescribed by law as a mass media , dignity and business reputation should be guided by the rules relating to the media. " Consequently, the website acquires the status of a mass media only by virtue of its voluntary registration as such, and not because of its legal nature.
This is precisely the position taken by the legislators of those foreign countries in which there is a special procedure for the legitimization of the mass media. In none of the foreign industrialized countries, websites do not belong to legislation to the media and are not subject to mandatory registration in this capacity, and their creation and maintenance without registration as a media does not entail the occurrence of legal liability. Attempts to enact legislation enshrining mandatory registration of Internet sites as media were undertaken in 2003–2005 in Turkey and Canada, however, such bills were not adopted, including due to the lack of legal mechanisms for implementing such a legal model for legitimizing Internet sites. .
8. Since, as was shown above, the registration of Internet sites as mass media is not mandatory, to the extent that raising the question of imposing administrative penalties for not registering an Internet site as a mass media seems absurd and devoid of any legal grounds. .
As you know, art. 13.21. Administrative Offenses Code of the Russian Federation “Violation of the procedure for producing or distributing mass media products” establishes administrative responsibility for the “production or distribution of products of an unregistered mass media”. Moreover, in this case, the confiscation of the subject of an administrative offense is not an additional, but the main penalty, along with an administrative fine. However, this punishment cannot be applied to a website, since it is physically impossible to confiscate an information resource. And this is more proof that the creation and maintenance of a website without registering it as a mass media does not contain signs of an administrative offense under Art. 13.21. KoAP of the Russian Federation. We emphasize that the composition of this offense involves precisely a violation of the procedure for the manufacture or distribution of media products. In the case of a website, there is neither the media nor the media products. You should pay attention to Part 6 of Art. 2 of the Law on Mass Media, which defines: “Mass media products are understood as the circulation or part of the circulation of a separate number of a periodical publication, a separate release of a radio, television, newsreel program, circulation or part of the circulation of an audio or video recording of the program”. Obviously, the website has no similar products.
Summarizing the above, the UNESCO Chair for Copyright and other branches of intellectual property law states that a website as a general rule is not a mass medium and is not subject to mandatory registration in this capacity, and its creation and maintenance without registration as a mass media. does not contain signs of an administrative offense under Article. 13.21. KoAP of the Russian Federation.
This conclusion was prepared with the participation of members of the UNESCO Chair: Doctors of Law, Professors M.A. Fedotov, V.N. Lopatin and L.S.Simkin, Candidates of Laws V.O. Kalyatin, V.N. Monakhova, V.B. .Naumova, A.G. Sergo, A.A.Tedeeva.
M.A. Fedotov
Head of the UNESCO Chair,
Doctor of Law, Professor,
Honored Lawyer of the Russian Federation,
Extraordinary and Plenipotentiary Ambassador
Russian Federation
A source
Source: https://habr.com/ru/post/3735/
All Articles