ARCHIVE FOR 2022 RUSSIAN
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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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