The main problems of legal regulation of the Internet
The Internet, not being a controlled organizational structure and a legal entity, is not a subject of legal relations, and therefore there is no legal relationship between the Internet (or its national segments) and the state. The structure of information resources on the Internet includes pages (sites) of existing traditional mass media (television, radio, newspapers, etc.), pages (sites) of mass media and information that have no analogues outside the Internet, pages (sites) of subjects that are not mass media.
The main subjects of legal relations in connection with the functioning of the Internet are:
owners of information and owners of information resources on the Internet;
information intermediaries (providers);
users.
Features of the Internet as a tool for the dissemination of mass information:
a wide audience of users and the possibility of its unlimited expansion;
The dissemination of information is cross-border;
high speed and efficiency of providing information;
virtually unlimited choice of sources and types of information;
lack of prior control of the content of information (censorship);
the ability to discuss issues that arise in real time;
the possibility of simultaneous presentation of information in various forms (text, graphics, sound, animation, etc.) With the development and spread of the Internet, more and more countries of the world are realizing the need for its legal regulation. First of all, this is due to the fact that, thanks to the powerful pace of development, the Internet contributes to revolutionary transformations in all spheres of public life. The Internet has already become a powerful factor in social, educational and cultural development, providing new opportunities for both government agencies and public figures, educational and cultural workers, removing barriers to the creation and dissemination of materials, offering general access to sources of digital information, the number of which is constantly increasing. These capabilities (namely, the provision and transmission of huge amounts of information; intensive communication between citizens not only within their own country, but also between citizens of different states, the opportunity for self-expression through the creation and opening of their own websites) in the vast majority of cases are used for legitimate business and personal purposes.
However, the Internet also contains a certain amount of potentially inappropriate (obscene, offensive) or illegal information and can sometimes be used as a means of criminal acts. Although the advantages of the Internet far outweigh its potential disadvantages, these problems cannot be ignored. These are acute problems of social, political, commercial and legal importance. If they are not resolved, they may make Internet use much more difficult, slowing down the development of the industry and providing wide and diverse opportunities to all spheres of society. That is why the problem of legal regulation of the Network is becoming increasingly important, both at the level of the international community and in individual countries of the world.
Let's take a closer look at how this problem is being solved in some leading states.
The US experience.
Until recently, there were two main legal norms in the United States legislation in the field of the Internet, adopted in 1996 ("Telecommunications Act of 1996" as an addition to the federal law "Communications Act of 1934" in the form of a new paragraph 230 "Protection of personal blocking and protection from offensive materials") and regulating the content of information resources, concerning the Internet.
The first rule defines that neither the provider nor the user of an interactive computer service is responsible for the content of information published by another provider.
The second norm removes from the provider any responsibility for actions to restrict access to information that he regards as offensive, deceitful, such as promotes violence, etc., as well as for actions to distribute funds intended to carry out these actions. Despite the fact that such approaches were quite liberal, the public reaction turned out to be ambiguous, and these norms were regarded by public opinion as interference with the "sovereignty" of Internet users.
In particular, John Barlow's "Declaration of the Independence of Cyberspace" has been disseminated. The declaration was written in 1996 as a protest against the Law "On Decency in Communications" (Telecommunications Reform Act). According to J. Barlow, the Telecommunications Reform Act, which passed in the Senate with only five votes against, makes it illegal and punishable by a $250,000 fine to say "damn it" on the Network. The very possibility of interference in the Network by the authorities is regarded as a restriction of freedom of speech and a departure from democracy.
That is why the declaration says: "Governments are empowered by the consent of the governed. You didn't ask them, and you didn't get them from us. We didn't invite you. You don't know us, you don't know our world.
Cyberspace is not inside your borders. Don't think that you can build it as if it were a public building project. You can't do that. This is a natural phenomenon, and it grows by itself through our collective actions. You did not participate in our huge and growing dialogue, you did not create the wealth of our market. You don't know our culture, our ethics, our unwritten laws. They already provide more order in our society than could be obtained from each of your orders. You claim that we have problems that you have to solve. You are using this claim as an excuse to invade our domain. Most of these problems simply don't exist. Where there are real conflicts, where there is an offense, we will identify them using our own means. We are forming our own Social Contract. This guide will arise according to the conditions of our world, not yours. Our world is different."
In June 1997, the U.S. Supreme Court rejected the provisions of the Communications Decency Act, according to which, in particular, the distribution of obscene materials that a minor can access is classified as a crime, since this would be a violation of the constitutionally protected right of freedom of speech, but the Supreme Court upheld the provisions of the law regarding materials obscene content. On July 16, 1997, President B. Clinton and Vice President A. Gore unveiled a strategy aimed at creating a "family friendly atmosphere" on the Internet. According to this strategy, parents and teachers should be provided with the necessary means to limit children's access to undesirable materials on the Internet and to direct them to high-quality educational resources.
Industry leaders and associations have agreed on the need to take measures to develop filtering and rating systems and raise awareness of the capabilities of the global network.
So, in 1997, the US President signed a decree that formulated the basic principles of the US Administration's Internet policy. Where State intervention is necessary, it should aim to establish minimum, understandable and simple legal norms. The intervention of the authorities should protect private rights and property, prevent fraud, maintain freedom of commercial relations and create conditions for resolving controversial issues. The legal norms developed over the past sixty years in the field of telecommunications, radio and television cannot be directly applied to the Internet. Current laws that may affect the Internet should be reviewed and amended to reflect the new electronic era.
In order to carry out activities related to these issues, sellers of services must be sure that their intellectual property will not be stolen, and buyers must know that they are receiving authentic products. There is a need to conclude international agreements that would contain adequate and effective legal norms to combat fraud and theft of intellectual property.
The protection of private interests should be based on the following principles: the person who collects information is obliged to inform consumers about what information is being collected and how it is supposed to be used, as well as to provide an opportunity for the consumer to limit the use of personal information.
To ensure compliance with these requirements, the US Administration supports the development of independent, market-based appropriate infrastructures using cryptographic means, which should ensure the identification, integrity and confidentiality of information. In particular, the US Administration is working with Congress to develop laws that should facilitate the development of such infrastructures.
Society is dominated by the idea that despite the availability of "filtering" technology, the content of resources on the Internet should not be regulated according to the same rules as radio and television. Unnecessary regulation will harm the development and diversity of the Internet.
Based on this, the US Administration intends to support self-regulation in this area, introduce competitive rating systems and solutions for easily applied network solutions for blocking information. In carrying out its policy, the Administration adheres to the following four priorities:
1) Content regulation;
2) quotas for foreign information;
3) regulation of advertising;
4) Anti-fraud.
In October 1998, the US Congress passed a bill that concerns the restriction of the distribution of materials on the Internet among underage users. The Law on the Protection of the Personal Life of Minors ("Children's Online Privacy Protection Act") provides that the dissemination of personal information in relation to children under the age of 16 is possible only with the consent of their parents. It also assumes that persons who have not reached the age of majority cannot have their own address, personal channel on the Internet. The US Congress also adopted the Child Online Protection Act (1998), which provides for significant penalties (up to 50 thousand US dollars) and other penalties (imprisonment for up to 6 months) for distributing materials without restricting access to the network and which may harm children.
Considerable attention is also paid to legal issues related to the activities of commercial online companies on the Internet. In this aspect, the following problems can be identified:
regulation of content (harmful and illegal),
compliance with copyright and related rights in conditions of technically easy copying of any information presented in digital form,
issues of information economy formation (electronic catalogs, advertising, marketing, electronic publications, electronic contracts, information transfer tax),
information security, that is, the security of management systems vital to society: transport, troops, economy large cities, etc.
According to statistics from US law enforcement agencies, copyright infringement and hacker actions cause losses of up to $10 billion annually. Governments do not have time to adapt their legislation in accordance with new developments in the field of information and communication technologies. According to Interpol estimates announced at the sixth meeting of the Working Group on Law Enforcement Cooperation in Central and Eastern Europe on Combating Computer Crime (g. Munster, August 28-30, 2000), the income of computer criminals in the world ranks third after the income of drug traffickers and illegal arms suppliers.
The European Union.
The normative documents of the European Parliament and the Council of Europe have become an essential set of normative documents that have a decisive impact on the legal norms of European countries in the field of the Internet. Among these documents, it is necessary to highlight Directive 97/66/EC "On the processing of personal data and the protection of private interests in the field of telecommunications", Directive COM (1998) 586 "On a number of legal aspects of e-commerce in the domestic market". These documents form the basis of the European legal framework in the field of Internet information exchange and e-commerce. Directive 97/66/EC addresses the relationship between service providers in a public telecommunications network and the end users of these services.
The main issues discussed in it are as follows.
Safety. The service provider is responsible for ensuring the information security of its services, if necessary, in cooperation with the owner of a public telecommunications network.
Confidentiality of telecommunication communications. A list of data related to the consumer and services to him (number and identifier of the computer station, address, contract number, information about contacts with the service provider, payments, etc.), conditions for their use and preservation by the service provider, as well as the obligation of the service provider to destroy data is provided.
The rights of the _____ consumer (user of a public telecommunication network) according to personal data posted in electronic or printed reference books intended for general use. The "Action Plan for ensuring the safe use of the Internet" (1997) is an important component of the fight against illegal and inappropriate (obscene) content on the Internet. For the successful implementation of this Plan, all activities should be directly coordinated with other initiatives of the European Union to combat the misuse of information and communication technologies. This Action Plan with "illegal content" considers a broad concept that includes a very large number of materials related to:
national security (instructions for the manufacture of explosive devices and for the illegal production of drugs, instructions for carrying out terrorist acts);
protection of minors (offensive forms of marketing, violent scenes, pornography);
protection of human dignity (incitement to racial hatred or racial discrimination);
economic security (fraud, instructions on pirated use of credit cards);
information protection (criminal activity of hackers);
protection of privacy (unauthorized transfer of personal data, electronic harassment);
protection of reputation (libel in the press, illegal comparative advertising);
intellectual property (unauthorized distribution of copyrighted applications, such as computer programs or music applications). For example, in France, the law "on three warnings" has been in force since 2011, which provides for the forced disconnection from the Internet of those who violate copyright laws.
The authorities have the right to listen to those users who actively download pirated programs and multimedia content from file sharing sites from the network. The law provides not only for disconnection, but also a fine of up to 300 thousand euros and even imprisonment. At the same time, the law obliges Internet service providers to transfer data to the authorities about those who distribute pirated materials.
Inappropriate (indecent) content refers to content that is not illegal, but whose distribution is limited (for example, only for adults), as well as content that may offend some users, although its publication is not limited due to the principle of freedom of expression.
It is planned to solve these problems in two ways: firstly, by introducing the Council of Europe Recommendation on the Protection of Minors and Human Dignity, and secondly, by implementing the presented Action Plan, which is the result of intensive consultations with all interested circles.
This Plan identifies those areas where specific measures need to be taken and where the resources of the European Community should be used to create a favorable environment for the development of the Internet as an independent industry:
development of self-regulation and creation of content control systems, including a pan-European network of hotlines in order to achieve a high level of protection (especially protection against child pornography and racist and anti-Semitic content);
demonstration and application of effective filtering and compatible rating systems that take into account cultural and linguistic diversity;
The development of activities to familiarize users, especially children, parents and educators, in order to ensure that they can use Internet resources with a sense of trust.
The European Convention on Cybercrime (2001) is a necessary condition for the prevention of offenses against the confidentiality, integrity and accessibility of computer systems, networks and data, as well as the misuse of these systems, networks and data by granting these actions the status of a crime within the time limits provided for by this Convention, as well as through the use of powers available to effective counteraction to these offenses by facilitating the identification, investigation and prosecution of these offenses.
The Convention defines the following types of crimes:
crimes against confidentiality, integrity and accessibility of computer data and systems (illegal access, illegal interception, interference with data, interference with the system, improper use of devices);
computer-related crimes (forgery of computer data, computer fraud);
offenses related to content (primarily crimes related to child pornography);
crimes related to violations of copyright and related rights.
The Guidelines on Personal Protection for the Collection and Processing of Personal Data on Information Highways, which can be included or taken into account in codes of conduct, set out principles for ensuring privacy for Internet users and service providers. Users should be informed about the responsibilities of Internet service providers and vice versa.
Protection of passengers' personal data.
Since March 2003, the United States has required European airlines operating flights to the United States to provide personal data to passengers.
The data is sent to the USA before departure and is used to check passengers and apply a risk assessment. Passenger registration data (PNR) consists of various data on departure and arrival flights, transfers, special services on board (food selection, etc.) and billing information such as credit card number. Airlines may not receive permission to land if they do not comply with US requirements.
The European Parliament, European Data Protection Commissioners and even the European Commission consider that the transfer of such passenger data violates the provisions of EU privacy legislation.
In some countries, the practice of using electronic cards in public transport is beginning to be introduced, in particular, this practice is spreading in France. The French Data Protection Service (CNIL) considers this phenomenon as a serious threat to the privacy of citizens on the basis that the cards are both an identification and a travel document. They record the names of the metro pick-up and drop-off stations, dates and times, and in some cases, the exact route of the passenger. In its recommendations dated September 16, 2003, the CNIL states: "According to the received data, it is possible to reproduce the route of any passenger.
Thus, the cards do not provide anonymity. This violates the fundamental and constitutionally guaranteed right to freedom of movement, as well as the right to privacy."
Creation of a pan-European identification card.
The European Union has taken steps to create a pan-European identification card, which records biometric and personal data, which has replaced traditional paper passports.
Medical insurance policies have been replaced with a single medical insurance card (European Health Insurance Card).
