Provide and collect evidence using the Internet
Bulletin of YOU № 3 2003
PROVIDING AND COLLECTING EVIDENCE WITH THE HELP OF INTERNET. PROCEDURAL STATUS OF THE EVIDENCE OBTAINED BY MEANS OF INTERNET
The most difficult problem in disputes about offenses committed using the Internet is the problem of proving the composition of an offense, which, in turn, breaks down into two components:
1) the legal basis and procedure for collecting and securing evidence and
2) the admissibility of such evidence in terms of procedural law.
The Internet is a means of business communication, obtaining relevant information, doing business, therefore, an increasing number of users can become and become victims of offenses' on the Web. Fighting them in recent years has ceased to be an idle theoretical task. Moreover, offenses on the Internet may affect the rights and interests of persons who are not users of the Network and do not even know about its existence. Thus, a slanderous note in relation to the head of the enterprise will act as an honor, dignity, business reputation.
directly slandered, and on the business reputation of the company, regardless of whether they know about such a note or not.
Many refuse to deal with offenses, believing that Russian law does not apply to the information disseminated on the Internet or that it is not possible to prove the commission of an offense, since the information on the site can be easily changed or removed from it at any time. However, the existing judicial practice tends to
___________________________________
* Under the "offenses on the Internet (Network)" in this paper will be understood as a civil offense, and crimes committed using the Internet.
')
____________________________________
to the fact that Russian law should be applied to offenses on the Internet and that there is evidence that is valid from the point of view of procedural law. One example of this practice is the decision of the Arbitration Court of the city of St. Petersburg and the Leningrad Region of April 6, 2000 in case No. A56-8603 / 99, which we will talk about a little later.
Russian civil law applies to most offenses committed using the Internet. Thus, domestic law should apply to offenses against a good name and business reputation in the event that the injured individual is a citizen of the Russian Federation (Article 1198 and paragraphs 1, 2 of Article 1195 of the Civil Code of the Russian Federation), has a residence in the Russian Federation (Art. 1198 and paragraphs 3, 4, 5 of Art. 1195 of the Civil Code of the Russian Federation), he was granted asylum in the territory of the Russian Federation (Art. 1198 and paragraph 6 of Art. 1195 of the Civil Code of the Russian Federation) or if the affected legal entity was established in Russia ( . 1202 of the Civil Code). The territory of the Russian Federation shall be recognized as land, subsoil and airspace within the borders of the Russian Federation (Article 1 of the Law of the Russian Federation “On the State Border of the Russian Federation”).
If as a result of an offense with the use of the Internet caused harm, then the law of the place of the act (clause 1 of article 1218 of the Civil Code of the Russian Federation) (in our case - the location of information on a server within Russia) or the location of the consequences (clause 2 of article 1218 Of the Civil Code of the Russian Federation), if the injurer foresaw or should have foreseen the onset of consequences within the territory of Russia.
Russian law also applies to offenses in respect of copyright and related rights to published or unpublished works that are in any objective form:
1) on the territory of the Russian Federation, regardless of the nationality of the authors and their successors;
2) outside the Russian Federation, but created by citizens of the Russian Federation;
3) outside of Russia, but the right to which is recognized for foreign authors (their successors) in accordance with the international treaties of the Russian Federation (Article 5 of the Law of the Russian Federation "On Copyright and Related Rights").
If the offense was an instrument of unfair competition in relation to a manufacturer active in the Russian market, then Russian law may also apply (Article 1222 of the GKRF).
Thus, practically any civil offense committed using the Internet can be considered by a Russian court.
Administrative responsibility for offenses using the Internet is borne by individuals and legal entities, regardless of citizenship and place of incorporation, who committed an offense on the territory of the Russian Federation, the continental shelf and in the exclusive economic zone of the Russian Federation (Section 1 of Article 1.7, Article 2.6 of the Code of the Russian Federation about administrative offenses from 12.30.01).
Criminal law is applicable to crimes committed:
a) on the territory of the Russian Federation, on the continental shelf, in the exclusive economic zone, on a Russian ship (Article 11 of the Criminal Code of the Russian Federation);
b) in a foreign country, where the act is also recognized to be a criminal offense, if the accused was not convicted there (part 1 of article 12 of the Criminal Code of the Russian Federation);
c) abroad against the interests of Russia by foreign citizens and stateless persons who now permanently reside in the territory of the Russian Federation, but have not been convicted of such a crime abroad (part 3 of article 12 UKRF).
It is obvious that in most cases of committing offenses through the Internet, Russian law can and should be applied to a Russian citizen or organization or on the territory of Russia.
However, for the application of Russian law, the corpus delicti of the relevant offense must be proved. On the evidence of the offense on the Internet, that is, the evidence on the basis of which, in a manner determined by law, the court establishes the presence or absence of circumstances justifying the claims and objections of the parties, and other circumstances relevant to the proper consideration of the case (Article 49 of the Civil Procedure Code of the RSFSR; art. 64 APC RF;
Art. 74 Code of Criminal Procedure), as well as methods for their production and will be discussed further.
MAINTENANCE AND COLLECTION OF EVIDENCE
Before contacting the executive authorities or the court about the offense on the Internet, you must first collect and provide evidence that can be used to confirm the existence of a corpus delicti. The best way at the moment is to notarize Internet pages. A simple printout of the page, according to A. Ivlev’s just remark, most likely will not be recognized by the court as a document, unlike a notarized document.
Evidence provided by a notary must be admissible. if they are obtained in compliance with procedural rules. An example of this is the decision of the Arbitration Court of the city of St. Petersburg and the Leningrad Region of April 6, 2000 in case No. A56-8603 / 99. The court came to the following conclusion: “The arguments about that. that the documents submitted cannot be assessed as pertinent and admissible evidence is unfounded, because ... the protocol drawn up by the notary complies with the requirements for written evidence, i.e. contains information about the circumstances that are relevant to the case, namely, the information contained on the Web page ... The absence in the protocol of a pronounced procedure of notary actions when working on the network ... cannot serve as a basis for evaluating the information contained in it as unreliable. "
NOTARY PROVISION OF EVIDENCE
A person who is interested in certifying wrongful information makes a request in the name of a notary requesting to verify that such information is located at a specific Internet address. In this case, the request shall include: the purpose of providing evidence, the address of the Internet page, the details of the document. It is advisable to specify the title of the text or graphic information, its location on the Internet page, specific quotes that will be used in the lawsuit, complaint or statement. It is advisable to specify the sequence of actions that the notary must perform in order to get a screen image of the page of interest.
The notary finds the Internet page at the specified address, prints it, makes sure that the material with the specified details is available. If the query featured certain words and expressions, check their presence in the printed copy. It is desirable that the printout automatically reflects the date of printing and the file address, and the Internet page is printed in full, in the form in which it appears to the site visitor. The certified printout of the Internet page is written evidence, since the image on the monitor screen, as well as on paper, informs the user with the same information, regardless of whether they are reflected on the monitor - the luminous layer of the monitor screen or paper. Information is contained in the text or graphic image, and not on a tangible medium, which is a distinctive feature of written evidence (Article 75 of the APC RF, Article 63 of the Civil Code of the RSFSR).
To be fair, it should be noted that, in the strict sense of procedural legislation, printing a browser window on a paper (a program with which files from the Internet are presented in a human-readable form) is not authentic to a monitor screen. Paper printout adds information about print time and file location on the Internet. It appears, however, that this formal consideration should not become an obstacle to justice, the main tasks of which, in accordance with article 2 of the Code of Civil Procedure of the RSFSR and article 2 of the APC RF, are the protection of rights, freedoms and legally protected interests, the strengthening of the law and the suppression of offenses, as well as the correct and timely review of the case.
It should be noted that you can assure a bit quotes unchanged. Value judgments in the request are unacceptable, since the evaluation of materials is the prerogative of the court (Article 56 of the Code of Civil Procedure of the RSFSR and Article 71 of the APC RF).
After verifying the address of the page and the details of the text or object, the notary draws up a protocol of notarial action - providing written evidence by accessing the Internet page and its subsequent examination in accordance with the procedure established by paragraph 18 of article 35 and articles 102 and 103 of the Fundamentals of Notary Law. As already noted, the protocol should describe not only the page itself, but also the order of access to it, as well as all actions that were taken to obtain information of interest. It is necessary to pay special attention to the fact that the notary provides evidence only on a dispute that is in the pre-trial stage (Article 72 of the APC RF and Article 57 of the RSFSR Code of Civil Procedure), or prior to the administrative proceedings (Article 102 • Basic Laws on notaries).
Printed pages are attached to the protocol. In this protocol, the notary and the person who approached him shall sign, passport details and the address of the last place of the latter shall be indicated, and an imprint of the seal shall be put. On the notarial act, which is paid by the state duty, an entry is made in the registry.
This procedure of notarial evidence was implemented in practice in St. Petersburg. How this notarial act is performed in Moscow and other regions, the author, unfortunately, is not aware. It seems useful to develop a uniform standard. The instruction “On the Procedure for Performing Notarial Actions by State Notary Offices of the RSFSR”, approved by the Order of the RSFSR Ministry of Justice No. 01/16-01 of January 6, 1987, has lost its force. However, the procedure envisaged by it for providing evidence (Ch. 19 “Securing evidence”), in our opinion, may well be applied in practice.
USE OF LOG FILES AS EVIDENCE
Log files are automatic diaries of the provider's server, which contain information about the actions performed with the files on the server and the persons who committed them. However, they quickly become obsolete, as new information over time replaces the previous one. Therefore, problems may arise when using log files as evidence. In this case, you should contact the provider with a request to provide an electronic copy certified by his management of the log file or its part, as well as their printout as soon as possible after placing the disputed material on the site.
It should be borne in mind that the provider is not obliged to provide individuals with their log files and even extracts from them. He may refuse to provide log files if there is a likelihood of engaging him as a respondent. In this case, an application for the provision of such evidence must be filed during the inquiry or preparation of the case for consideration. At the request of the court or the investigator to provide such evidence provider is required.
Log files as evidence were successfully used in the case of 000 PROMO-RU v. 000 Cognitive book plus.
USE OF SEARCH SYSTEMS REPORTS ON THE APPEARANCE OF NEW INTERNET PAGES.
Search engines (search engines are programs available on the Internet that constantly scan the Internet for new pages. When a new page is found, the search program assigns it a specific number and a description, and sometimes completely records its contents in its memory so that user requests for relevant information to quickly find and provide a link to this page. Thus, all pages, the information available to them and the time of their appearance is sufficient but are fully described in the databases of the relevant “search engines.” Such a description of the contents of the Aport's search engine pages of the Agama company was used in the aforementioned case of the PROMO-RU lawsuit. The plaintiff referred to information on the respondent’s website that was preserved as a result of the scan. which have been recognized by appropriate evidence.
Search engine results can also be queried both privately and with the help of the competent authorities.
In our opinion, the information of statistical services on the number, frequency, and regional specificity of the site of interest can also be useful in resolving a dispute. Such information can be crucial in determining the status of a site as a network media, calculating the amount of damages (in a criminal case, the size of the damage) or compensation for moral damage and in other situations.
To obtain the above information, you should contact the relevant statistical Internet services with a request to provide information on the statistics of visits to the site or page of interest. Authoritative in this area are such services as SPYLOG and TOPLIST. To exclude the possibility of the influence of interested parties on the objectivity of the statistical information provided, the information should be requested prior to the start of the official proceedings on the dispute.
ESTABLISHMENT OF PERSONS RESPONSIBLE FOR THE PLACEMENT OF INFORMATION
The second step in preparing a successful offensive against offenders is to identify those responsible for placing inaccurate, defamatory information on the website and on the provider's server.
Domain administrator as a formally responsible person.
In accordance with the Regulations and tariffs for services for the registration of second-level domains in the .RU zone (hereinafter referred to as the “Regulation”)
__________________________________
PUBLISHED ON THE ROSNIIROS SITE - WWW.RIP.NET/NIC/DNS/REGL.DOC
________
Registration rules TorLIST does not exist anymore, it was absorbed by the company MAIL.RU and currently exists as an Internet service.
__________________________________
and the Rules for registering second-level domains in the .RU zone (hereinafter referred to as the Registration Rules)
___________________________
WWW.RIPN.NET:8080/NIC/DNS/REGISTRY/CONTRACT/REGLAM.HTML
____________________________
Responsibility for everything that happens in the address space of his domain, for all conflict situations, as well as the use of his password, and, consequently, the domain itself for illegal purposes, is primarily the domain administrator.
According to the Regulations, the domain administrator is a legal entity or an individual, which is indicated in the “ADMIN-o” field of the domain description form. “The domain administrator determines ... the procedure for using a domain ... [and therefore] is responsible for choosing a domain name, a possible violation of trademark rights, as well as conflicts arising from the use of a domain name. The administrator independently chooses and registers an individual password to access information about the domain and is responsible for all actions performed using his password, according to the contract ... "
These obligations and responsibilities are enshrined in each contract of RIPN with a specific domain administrator. Model contract
______________________
WWW.RIPN.NET:8080/NIC/DNS/REGISTRY/CONTRACT/contract.HTML
_______________________
it is stipulated that on its basis and in accordance with its terms and conditions, the administrator acquires duties, including those mentioned above and defined in the following documents, which are an integral part of the contract:
Temporary regulations on the activities of domain registrars in the Russian segment of the Internet, Rules for registering second-level domains in the .ru zone, Temporary regulations on domain registration centers.
Moreover, in accordance with clause 4.2 of the model contract, the domain administrator assumes responsibility for the actions of employees, as well as for the actions of third parties using his password.
Thus, the domain administrator is personally responsible for using the domain, including for illegal purposes, no matter who uses the domain, from the moment the name is entered into the central RIPN database.
The name of the domain administrator can be found in the central database of RosNIIROS using the WHOIS program, which is a type of search program available on the Internet that searches for information on domain administration in the domain registrars databases. Information is entered into the database of administrators when registering a specific domain. The WHOIS program can be used on the following Internet sites: WWW. RIPN.NET:8080/NIC/WHOIS/ (information on the administration of domains in the .RU zone), WWW.RIPE.NET/PERL/WHOIS(international search), WWW.INTERNIC.COM/WHOIS.HTML (information on the administration of the domains of the upper level, for example. COM,. NET,. ORG). The received certificate, as a rule, contains the name of the administrator or his company name, address of citizens or the location of the organization,name of the provider and DNS server addresses, other information useful for the dispute. For providing false information about yourself when registering a domain or not updating information in the event of a change, the domain administrator is liable until canceling the registration of his domain (clauses 4.12 and 4.13 of the Regulations). Therefore, it should be assumed that in most cases, the registration provides reliable information.
Log files - evidence of guilt of authorized persons.
Log files of the hosting provider, as a rule, contain information on which authorized person, at what time, and in what way performed the action with the site files on the server. By the authorization method, you can determine the person who is responsible for all actions performed by him or on his behalf. Hosting providers are companies that provide services for the content of a site (set of files) on its material storage medium (server) and providing access to the site. They should be distinguished from providers that provide only access to Internet sites, that is, provide communication services (transmission, but not information storage), since the latter have less ability to provide evidence.
In conclusion, I would like to repeat that the problem of proving in cases of offenses committed using the Internet is solvable. With a thoughtful and consistent approach to curbing the offense and bringing those responsible to justice, the struggle for violated rights has prospects.
Article with wapbbs
And what has changed during this time? who knows what?
PROVIDING AND COLLECTING EVIDENCE WITH THE HELP OF INTERNET. PROCEDURAL STATUS OF THE EVIDENCE OBTAINED BY MEANS OF INTERNET
The most difficult problem in disputes about offenses committed using the Internet is the problem of proving the composition of an offense, which, in turn, breaks down into two components:
1) the legal basis and procedure for collecting and securing evidence and
2) the admissibility of such evidence in terms of procedural law.
The Internet is a means of business communication, obtaining relevant information, doing business, therefore, an increasing number of users can become and become victims of offenses' on the Web. Fighting them in recent years has ceased to be an idle theoretical task. Moreover, offenses on the Internet may affect the rights and interests of persons who are not users of the Network and do not even know about its existence. Thus, a slanderous note in relation to the head of the enterprise will act as an honor, dignity, business reputation.
directly slandered, and on the business reputation of the company, regardless of whether they know about such a note or not.
Many refuse to deal with offenses, believing that Russian law does not apply to the information disseminated on the Internet or that it is not possible to prove the commission of an offense, since the information on the site can be easily changed or removed from it at any time. However, the existing judicial practice tends to
___________________________________
* Under the "offenses on the Internet (Network)" in this paper will be understood as a civil offense, and crimes committed using the Internet.
')
____________________________________
to the fact that Russian law should be applied to offenses on the Internet and that there is evidence that is valid from the point of view of procedural law. One example of this practice is the decision of the Arbitration Court of the city of St. Petersburg and the Leningrad Region of April 6, 2000 in case No. A56-8603 / 99, which we will talk about a little later.
Russian civil law applies to most offenses committed using the Internet. Thus, domestic law should apply to offenses against a good name and business reputation in the event that the injured individual is a citizen of the Russian Federation (Article 1198 and paragraphs 1, 2 of Article 1195 of the Civil Code of the Russian Federation), has a residence in the Russian Federation (Art. 1198 and paragraphs 3, 4, 5 of Art. 1195 of the Civil Code of the Russian Federation), he was granted asylum in the territory of the Russian Federation (Art. 1198 and paragraph 6 of Art. 1195 of the Civil Code of the Russian Federation) or if the affected legal entity was established in Russia ( . 1202 of the Civil Code). The territory of the Russian Federation shall be recognized as land, subsoil and airspace within the borders of the Russian Federation (Article 1 of the Law of the Russian Federation “On the State Border of the Russian Federation”).
If as a result of an offense with the use of the Internet caused harm, then the law of the place of the act (clause 1 of article 1218 of the Civil Code of the Russian Federation) (in our case - the location of information on a server within Russia) or the location of the consequences (clause 2 of article 1218 Of the Civil Code of the Russian Federation), if the injurer foresaw or should have foreseen the onset of consequences within the territory of Russia.
Russian law also applies to offenses in respect of copyright and related rights to published or unpublished works that are in any objective form:
1) on the territory of the Russian Federation, regardless of the nationality of the authors and their successors;
2) outside the Russian Federation, but created by citizens of the Russian Federation;
3) outside of Russia, but the right to which is recognized for foreign authors (their successors) in accordance with the international treaties of the Russian Federation (Article 5 of the Law of the Russian Federation "On Copyright and Related Rights").
If the offense was an instrument of unfair competition in relation to a manufacturer active in the Russian market, then Russian law may also apply (Article 1222 of the GKRF).
Thus, practically any civil offense committed using the Internet can be considered by a Russian court.
Administrative responsibility for offenses using the Internet is borne by individuals and legal entities, regardless of citizenship and place of incorporation, who committed an offense on the territory of the Russian Federation, the continental shelf and in the exclusive economic zone of the Russian Federation (Section 1 of Article 1.7, Article 2.6 of the Code of the Russian Federation about administrative offenses from 12.30.01).
Criminal law is applicable to crimes committed:
a) on the territory of the Russian Federation, on the continental shelf, in the exclusive economic zone, on a Russian ship (Article 11 of the Criminal Code of the Russian Federation);
b) in a foreign country, where the act is also recognized to be a criminal offense, if the accused was not convicted there (part 1 of article 12 of the Criminal Code of the Russian Federation);
c) abroad against the interests of Russia by foreign citizens and stateless persons who now permanently reside in the territory of the Russian Federation, but have not been convicted of such a crime abroad (part 3 of article 12 UKRF).
It is obvious that in most cases of committing offenses through the Internet, Russian law can and should be applied to a Russian citizen or organization or on the territory of Russia.
However, for the application of Russian law, the corpus delicti of the relevant offense must be proved. On the evidence of the offense on the Internet, that is, the evidence on the basis of which, in a manner determined by law, the court establishes the presence or absence of circumstances justifying the claims and objections of the parties, and other circumstances relevant to the proper consideration of the case (Article 49 of the Civil Procedure Code of the RSFSR; art. 64 APC RF;
Art. 74 Code of Criminal Procedure), as well as methods for their production and will be discussed further.
MAINTENANCE AND COLLECTION OF EVIDENCE
Before contacting the executive authorities or the court about the offense on the Internet, you must first collect and provide evidence that can be used to confirm the existence of a corpus delicti. The best way at the moment is to notarize Internet pages. A simple printout of the page, according to A. Ivlev’s just remark, most likely will not be recognized by the court as a document, unlike a notarized document.
Evidence provided by a notary must be admissible. if they are obtained in compliance with procedural rules. An example of this is the decision of the Arbitration Court of the city of St. Petersburg and the Leningrad Region of April 6, 2000 in case No. A56-8603 / 99. The court came to the following conclusion: “The arguments about that. that the documents submitted cannot be assessed as pertinent and admissible evidence is unfounded, because ... the protocol drawn up by the notary complies with the requirements for written evidence, i.e. contains information about the circumstances that are relevant to the case, namely, the information contained on the Web page ... The absence in the protocol of a pronounced procedure of notary actions when working on the network ... cannot serve as a basis for evaluating the information contained in it as unreliable. "
NOTARY PROVISION OF EVIDENCE
A person who is interested in certifying wrongful information makes a request in the name of a notary requesting to verify that such information is located at a specific Internet address. In this case, the request shall include: the purpose of providing evidence, the address of the Internet page, the details of the document. It is advisable to specify the title of the text or graphic information, its location on the Internet page, specific quotes that will be used in the lawsuit, complaint or statement. It is advisable to specify the sequence of actions that the notary must perform in order to get a screen image of the page of interest.
The notary finds the Internet page at the specified address, prints it, makes sure that the material with the specified details is available. If the query featured certain words and expressions, check their presence in the printed copy. It is desirable that the printout automatically reflects the date of printing and the file address, and the Internet page is printed in full, in the form in which it appears to the site visitor. The certified printout of the Internet page is written evidence, since the image on the monitor screen, as well as on paper, informs the user with the same information, regardless of whether they are reflected on the monitor - the luminous layer of the monitor screen or paper. Information is contained in the text or graphic image, and not on a tangible medium, which is a distinctive feature of written evidence (Article 75 of the APC RF, Article 63 of the Civil Code of the RSFSR).
To be fair, it should be noted that, in the strict sense of procedural legislation, printing a browser window on a paper (a program with which files from the Internet are presented in a human-readable form) is not authentic to a monitor screen. Paper printout adds information about print time and file location on the Internet. It appears, however, that this formal consideration should not become an obstacle to justice, the main tasks of which, in accordance with article 2 of the Code of Civil Procedure of the RSFSR and article 2 of the APC RF, are the protection of rights, freedoms and legally protected interests, the strengthening of the law and the suppression of offenses, as well as the correct and timely review of the case.
It should be noted that you can assure a bit quotes unchanged. Value judgments in the request are unacceptable, since the evaluation of materials is the prerogative of the court (Article 56 of the Code of Civil Procedure of the RSFSR and Article 71 of the APC RF).
After verifying the address of the page and the details of the text or object, the notary draws up a protocol of notarial action - providing written evidence by accessing the Internet page and its subsequent examination in accordance with the procedure established by paragraph 18 of article 35 and articles 102 and 103 of the Fundamentals of Notary Law. As already noted, the protocol should describe not only the page itself, but also the order of access to it, as well as all actions that were taken to obtain information of interest. It is necessary to pay special attention to the fact that the notary provides evidence only on a dispute that is in the pre-trial stage (Article 72 of the APC RF and Article 57 of the RSFSR Code of Civil Procedure), or prior to the administrative proceedings (Article 102 • Basic Laws on notaries).
Printed pages are attached to the protocol. In this protocol, the notary and the person who approached him shall sign, passport details and the address of the last place of the latter shall be indicated, and an imprint of the seal shall be put. On the notarial act, which is paid by the state duty, an entry is made in the registry.
This procedure of notarial evidence was implemented in practice in St. Petersburg. How this notarial act is performed in Moscow and other regions, the author, unfortunately, is not aware. It seems useful to develop a uniform standard. The instruction “On the Procedure for Performing Notarial Actions by State Notary Offices of the RSFSR”, approved by the Order of the RSFSR Ministry of Justice No. 01/16-01 of January 6, 1987, has lost its force. However, the procedure envisaged by it for providing evidence (Ch. 19 “Securing evidence”), in our opinion, may well be applied in practice.
USE OF LOG FILES AS EVIDENCE
Log files are automatic diaries of the provider's server, which contain information about the actions performed with the files on the server and the persons who committed them. However, they quickly become obsolete, as new information over time replaces the previous one. Therefore, problems may arise when using log files as evidence. In this case, you should contact the provider with a request to provide an electronic copy certified by his management of the log file or its part, as well as their printout as soon as possible after placing the disputed material on the site.
It should be borne in mind that the provider is not obliged to provide individuals with their log files and even extracts from them. He may refuse to provide log files if there is a likelihood of engaging him as a respondent. In this case, an application for the provision of such evidence must be filed during the inquiry or preparation of the case for consideration. At the request of the court or the investigator to provide such evidence provider is required.
Log files as evidence were successfully used in the case of 000 PROMO-RU v. 000 Cognitive book plus.
USE OF SEARCH SYSTEMS REPORTS ON THE APPEARANCE OF NEW INTERNET PAGES.
Search engines (search engines are programs available on the Internet that constantly scan the Internet for new pages. When a new page is found, the search program assigns it a specific number and a description, and sometimes completely records its contents in its memory so that user requests for relevant information to quickly find and provide a link to this page. Thus, all pages, the information available to them and the time of their appearance is sufficient but are fully described in the databases of the relevant “search engines.” Such a description of the contents of the Aport's search engine pages of the Agama company was used in the aforementioned case of the PROMO-RU lawsuit. The plaintiff referred to information on the respondent’s website that was preserved as a result of the scan. which have been recognized by appropriate evidence.
Search engine results can also be queried both privately and with the help of the competent authorities.
In our opinion, the information of statistical services on the number, frequency, and regional specificity of the site of interest can also be useful in resolving a dispute. Such information can be crucial in determining the status of a site as a network media, calculating the amount of damages (in a criminal case, the size of the damage) or compensation for moral damage and in other situations.
To obtain the above information, you should contact the relevant statistical Internet services with a request to provide information on the statistics of visits to the site or page of interest. Authoritative in this area are such services as SPYLOG and TOPLIST. To exclude the possibility of the influence of interested parties on the objectivity of the statistical information provided, the information should be requested prior to the start of the official proceedings on the dispute.
ESTABLISHMENT OF PERSONS RESPONSIBLE FOR THE PLACEMENT OF INFORMATION
The second step in preparing a successful offensive against offenders is to identify those responsible for placing inaccurate, defamatory information on the website and on the provider's server.
Domain administrator as a formally responsible person.
In accordance with the Regulations and tariffs for services for the registration of second-level domains in the .RU zone (hereinafter referred to as the “Regulation”)
__________________________________
PUBLISHED ON THE ROSNIIROS SITE - WWW.RIP.NET/NIC/DNS/REGL.DOC
________
Registration rules TorLIST does not exist anymore, it was absorbed by the company MAIL.RU and currently exists as an Internet service.
__________________________________
and the Rules for registering second-level domains in the .RU zone (hereinafter referred to as the Registration Rules)
___________________________
WWW.RIPN.NET:8080/NIC/DNS/REGISTRY/CONTRACT/REGLAM.HTML
____________________________
Responsibility for everything that happens in the address space of his domain, for all conflict situations, as well as the use of his password, and, consequently, the domain itself for illegal purposes, is primarily the domain administrator.
According to the Regulations, the domain administrator is a legal entity or an individual, which is indicated in the “ADMIN-o” field of the domain description form. “The domain administrator determines ... the procedure for using a domain ... [and therefore] is responsible for choosing a domain name, a possible violation of trademark rights, as well as conflicts arising from the use of a domain name. The administrator independently chooses and registers an individual password to access information about the domain and is responsible for all actions performed using his password, according to the contract ... "
These obligations and responsibilities are enshrined in each contract of RIPN with a specific domain administrator. Model contract
______________________
WWW.RIPN.NET:8080/NIC/DNS/REGISTRY/CONTRACT/contract.HTML
_______________________
it is stipulated that on its basis and in accordance with its terms and conditions, the administrator acquires duties, including those mentioned above and defined in the following documents, which are an integral part of the contract:
Temporary regulations on the activities of domain registrars in the Russian segment of the Internet, Rules for registering second-level domains in the .ru zone, Temporary regulations on domain registration centers.
Moreover, in accordance with clause 4.2 of the model contract, the domain administrator assumes responsibility for the actions of employees, as well as for the actions of third parties using his password.
Thus, the domain administrator is personally responsible for using the domain, including for illegal purposes, no matter who uses the domain, from the moment the name is entered into the central RIPN database.
The name of the domain administrator can be found in the central database of RosNIIROS using the WHOIS program, which is a type of search program available on the Internet that searches for information on domain administration in the domain registrars databases. Information is entered into the database of administrators when registering a specific domain. The WHOIS program can be used on the following Internet sites: WWW. RIPN.NET:8080/NIC/WHOIS/ (information on the administration of domains in the .RU zone), WWW.RIPE.NET/PERL/WHOIS(international search), WWW.INTERNIC.COM/WHOIS.HTML (information on the administration of the domains of the upper level, for example. COM,. NET,. ORG). The received certificate, as a rule, contains the name of the administrator or his company name, address of citizens or the location of the organization,name of the provider and DNS server addresses, other information useful for the dispute. For providing false information about yourself when registering a domain or not updating information in the event of a change, the domain administrator is liable until canceling the registration of his domain (clauses 4.12 and 4.13 of the Regulations). Therefore, it should be assumed that in most cases, the registration provides reliable information.
Log files - evidence of guilt of authorized persons.
Log files of the hosting provider, as a rule, contain information on which authorized person, at what time, and in what way performed the action with the site files on the server. By the authorization method, you can determine the person who is responsible for all actions performed by him or on his behalf. Hosting providers are companies that provide services for the content of a site (set of files) on its material storage medium (server) and providing access to the site. They should be distinguished from providers that provide only access to Internet sites, that is, provide communication services (transmission, but not information storage), since the latter have less ability to provide evidence.
In conclusion, I would like to repeat that the problem of proving in cases of offenses committed using the Internet is solvable. With a thoughtful and consistent approach to curbing the offense and bringing those responsible to justice, the struggle for violated rights has prospects.
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And what has changed during this time? who knows what?
Source: https://habr.com/ru/post/60059/
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