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ARCHIVE FOR 2022    RUSSIAN

Март 2022

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

Topic of the issue

N.A. Dmitrik Humans in their Right: From Legal Capacity to Personal Identity and Back
This article constitutes the final part of research devoted to the sources of legal regulation in cyberspace, started by the articles “States in their right” and “Corporations in their right”. The article provides an updated, due to rise of cyberspace, views on such basic legal concepts as legal capacity and legal awareness, legal personality and law and order. The main problem considered in the study is the problem of the personal identity. At the same time, personal identity is considered both as a prerequisite and an upshot of legal regulation. As the result of the study, the right to identity is justified as one of the elements of digital citizenship.
Keywords: personal identity, initial and derivative legal persons, artificial personality, legal capacity, legal awareness, digital citizenship
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S.D. Afanasev, I.A. Tereshchenko, D.A. Yatskevich Biometric Identification and Human Rights: The Line of Demarcation
The main issue of modern regulation of the use of technologies for biometric identification and processing of biometric data is the ensuring and protecton of fundamental human rights and freedoms. In this article, on the basis of an analysis of the approaches of various states, the concept and content of the category “biometric personal data”, as well as approaches to the selection of this category of personal data, are investigated. As a result of considering the relationship between biometric identification and fundamental human rights related to information technology (information self-determination; the right to data portability; the right to privacy), conclusions were formulated on the restrictions and requirements for the processing of biometric data, which are designed to ensure the observance of fundamental rights and human freedoms. Restrictions and requirements are imposed by the implementation of such principles as minimization and limitation of data storage, privacy by design, the possibility of fast erasure of data, alternative forms of access to services without mandatory biometric identification, limitation of the number of persons entitled to process biometric identifiers without the consent of the subjects and the use of “proportionality test” with such processing.
Keywords: Biometric personal data; biometric identifier; the right to informational self-determination; the right to data portability; the right to privacy; video surveillance
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A.N. Izotova The Role of Identification for the Communication Secrecy
The article contains an analysis of legal regulation, as well as doctrinal approaches to the identification of users in communications in terms of the significance of identification for the communication secrecy. The author pays attention to such aspects of identification as: a) its value for communication Internet services and the state in the course of implementation of public functions, b) risks of harm. Relations to personality (possibility of identification) of the user is defined by the author as a qualifying sign of the communication secrecy. The author also considers possible conditions for the processing of communication secrecy data from the point of view of a risk-based approach and the contextual integrity of confidential information, including through depersonalization of information about communications.
Keywords: communication secrecy, confidentiality, identification, personal data, communications
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V.V. Arkhipov Characters (Avatars) in Multiplayer Computer Games: Issues of Legal Qualification in the Context of Interdisciplinary Studies
The legal regime of characters (avatars) in multiplayer computer games and virtual worlds is a little-studied issue (apart from the problematic of virtual property). From the external point of view avatars relate to virtual worlds as part and whole and, as a consequence, can be considered in terms of intellectual property law, limitations of information law, regulation of communication services, the limits of legal regulation of in-game relations. However, from an internal point of view, avatars are a way of self-presentation of users, an expression of their identity or even a part of the “digital body” in the media-philosophical sense. This, in turn, allows us to relate avatars to the categories of personal data and intangible goods. Finally, the distinction between game characters (avatars) and bots may arise separately. The implementation of the identification principle proposed for artificial intelligence is proposed only in significant cases, defined according to one or another concept of the magic circle. The methodological potential of the presented ideas for the theoretical and legal analysis of the problems of agency and identity in law is outlined.
Keywords: computer games, virtual worlds, characters, avatars, intellectual property, Internet, information law, magic circle, semantic limits of law, identity, agency
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A.I. Savelyev, M.A. Imanalieva China’s New Legislation on Personal Data: Privacy “with a Chinese Twist”
The paper is focused on the new Chinese law on protection of personal information. It starts with the description of the background of its adoption and interrelation with other Chinese legal acts on personal information protection. Then it describes the core provisions of the new law, which are of particular interest for Russian discussion on the ways of optimal regulation of personal data protection: the definition of personal data and its types (sensitive, biometric, depersonalized, publicly available), personal data localization provisions and restrictions on transborder transfer of personal data, as well as established liability for violation of its provisions. Analysis of these provisions is made taking into account the commentaries provided in Chinese academic literature and subordinate legal acts, which exist mostly in Chinese. For certain situations comparisons with Russian and European approach to regulation is provided.
Keywords: personal data, transborder transfer of personal data, privacy
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A.O. Abyshko End of Publicly Available Personal Data in Russia? To the Issue of Federal Law No. 519-FZ
This paper discusses the regulation of publicly available personal data in the context of the adoption of the Federal Law dated December 30, 2020 No. 519-FZ “On Amending the Federal Law ‘On Personal Data’”. Based on the results of the analysis of the adopted law, the author comes to the conclusion about the conceptual correctness of the attempt made by the Russian legislator to endow personal data subjects with an effective mechanism for controlling information about themselves. However, the newly implemented tool for obtaining consent for the dissemination of personal data, despite its obvious advantages reflected in increased awareness of the data subject about the processing of personal data and the ability to determine the terms of such processing face difficulties with its de facto execution, which requires the search for new solutions to this issue.
Keywords: informational law, personal data, publicly available personal data, consent to process personal data, GDPR
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Discussion Board

E.I. Diskin Fake-News as a Political and Legal Phenomenon
What this article deals with is the phenomenon of “fake news” in its legal and political interpretation during digital transformation. Author examines genesis of the “fake news”, rapid shift from political use of this term to legal enshrinement, application despite quite vague criteria of the legal understanding of what is, and what is not “fake news”. The article answers the question — is the phenomenon of “fake news” the worst outcome of the global internet freedom or it is a useful legal tool for the Western political elites in their unfair political struggle? The articles also examines adequacy of the term “fake news” as a framework for the regulation of the social networks and internet as platform for sharing information, gives propositions of other terms for such use, assesses risks of following current trends in combating fake news.
Keywords: Fake news, disinformation, information law, censorship, digital rights, social media, criminal law, constitutional law
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Press Release

 

Theory and practice

G.V. Tsepov, N.V. Ivanov Towards a Civil-Law Theory of Smart Contracts
The article examines the issue of the place of smart contracts in the legal systematization. The main difference between a smart contract and traditional civil law contracts is seen in the fact that its conclusion occurs in electronic form within information system, while its essential terms determine the automatic transfer of property rights. Despite the fact that the terms of the smart contract must include commands and data necessary for its automatic execution, the language of the applicable law should be the primary language of the smart contract. The contract cannot be self-executing, it’s an illusion. For the conclusion and execution of smart contracts it is necessary not only to express the mutual will of its parties, but also the participation of the operator of the information system, as well as the existence of the rules of the information system. In a decentralized system the operator’s functions are performed by the users of the system, united in the civil law community. As a general rule, software manufacturers should bear property liability for poor-quality work of software products used in the conclusion and execution of automatically executed contracts.
Keywords: smart contract, automatic execution of obligation, information system, computer program, liability for software defects
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A.A. Ivanov The Most Wily Tax
This article is devoted to the analysis of value added tax (VAT) through the notion of added value in economics and civil law. The main focus of the study is directed at the role of VAT in the economy of Russia, its economic reasonableness and fairness. The author offers critical view on the main norms of Russian tax law concerning VAT especially those which is to correct.
Keywords: tax, added value, VAT, gold circulation, simplified tax regimes
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Foreign experience

A.S. Filiashin “Crime Control Turn” and American Law of Criminal Procedure: Context and Ideology
This paper focuses on what is known as the “conservative turn” of the late 1960s–1980s in American criminal procedure. This shift, strongly associated with the ubiquitous “law and order” rhetoric and policies of the time, couldn’t be possible without the strong support of conservative intellectuals, whose theories and doctrines have strongly impacted federal courts’ reasoning in landmark “crime control” cases. The author concludes that the conceptual framework of “crime control” turn in criminal procedure can not be characterized simply as a return to older common law standards and actually follows the general trend of middle-century American jurisprudence, that is, the transition from a dogmatic to more pragmatic and policybased approach (informed, e.g., by economics). The policy-based theories and tests adopted by the courts, paradoxically, caused a conceptual drift of American criminal procedure away from its English sister, while increasing the courts’ discretionary powers in search and seizure cases.
Keywords: US criminal procedure, crime control, law and order, due process, law and economics, Miranda rule, originalism, conservative legal movement
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