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Local rules of Internet communities
in context of protection of the
freedom of expression online
Andrey A. Shcherbovich
National Research University – Higher School of
Economics
(Moscow, Russia)
The most popular websites at
present
пЂЄ
пЂЄ
пЂЄ
пЂЄ
blogs (i.e. Livejournal);
social networks (i.e. Facebook, Twitter);
video-hostings (i.e. Youtube) ;
other websites providing user-generated content
Internet is evolving to make all the content in
future completely creative
Internet is replacing traditional media and
traditional channels of communication.
Novation in the scientific legal
research
 Russian legal science doesn’t have any relevant
studies analyzing user agreements on the Internet
through the prism of the constitutional rights and
freedoms,
пЂЄ Most studies of corporate standards and rules of the
Internet in Russian and foreign legal science are
mainly civil-law by nature.
Definitions
пЂЄ User Agreement (License Agreement, Terms of Service) is
a document that regulates the entire spectrum of relations
between the owner, administration, and users of web
resource.
пЂЄ Relations on the Internet can successfully be governed by
internal rules.
пЂЄ However, practice shows that different user agreements
are necessary, but obviously insufficient condition, to set
relationships in the Internet in the legal framework
Legal properties of the User
Agreements
пЂЄ Social (corporate) standards adopted by the subjects
of Internet relationships
пЂЄ They express the will of their subjects
пЂЄ They have mandatory force for them
 They do not come from any “central authority” like
parliament
пЂЄ From the civil law POW, they are legally binding
contracts concluding by public offer.
Weak points of civil law approach
пЂЄ In case of user agreements, such aspects of contract, as
the will and its authenticity, are unclear.
пЂЄ Could the expression of the will be understood in terms of
the relevant provisions of the Civil Code, when it is
transmitted by the Internet?
пЂЄ In terms of communication, could the error transmission of
the will, be recognized as expression of the will in legal
terms?
пЂЄ In accordance with article 168 of the Civil Code, the
transaction that does not meet the requirements of law or
other legislation, is negligible.
Prerequisites of the public-law
approach
пЂЄ In public-law relations, attributed to the subject of
constitutional regulation, priority is given to human being
as the basis of the constitutional model of relations
between society, government and people.
пЂЄ Constitutional law regulates the most significant relations
for the state and society, in order to achieve the most
important interests.
пЂЄ Thus, the subject of constitutional regulation can be
extended by the relations covered by the subject of other
branches of law, like civil law
Inequality of users
 It is seen that general protection of users’ rights is only
available for paid services of websites.
пЂЄ Paid services are subject to the protection according to the
civil law.
пЂЄ Free-of-charge resources are used by В«as isВ» mode.
 According to user agreement of Yandex: “You are using
Yandex services at your own risk. Services are provided "as
is". Yandex does not assume any responsibility, including
for compliance with user's purpose”
Mismatch of jurisdiction
пЂЄ All legal relations between users and administration are governed
by the laws of the country where the resource is registered and the
server is located.
 Generally conflict of laws rules couldn’t be applied.
пЂЄ Existing standards of user agreements on jurisdiction substantially
complicate lives of users from countries other than the one in which
the resource is registered, makes it difficult or virtually impossible to
protect the rights of those users legally.
пЂЄ Cyberspace should be treated as separate jurisdiction with their
own rules, which reflect its unique character. Internal rules were
designed as horizontal, in which the subjects of law are standing as
their creators. Consequently, there is need for a new understanding
of the Internet governance and territoriality in cyberspace.
General weakness of the user
agreements
пЂЄ Registration required
пЂЄ Possibilities for pre- and post-moderation of the usergenerated content
пЂЄ In case of creation, deployment and use of user-generated
content site users are prohibited to make certain acts
пЂЄ Liability may range from denying access to the site
(temporary or permanent), to more serious measures, like
civil and criminal liability
пЂЄ Unclear wording and definitions create the illusion of
informality and absence of the mandatory force of the
rules, which can be easily circumvented.
Wikipedia as example of the best
practice in the web self-governance
пЂЄ Wikipedia, which has 30 million active users, has unique in the
Russian segment of Internet community of active users.
пЂЄ This community set their own principles of conduct with a low
degree of formalization, proclaiming only “five pillars” of
Wikipedia, governing relationship between its participants
пЂЄ The rules are not rigid and designed by the user community.
пЂЄ Even users who have not participated in the creation of rules,
could monitor their compliance.
пЂЄ Access to the logs (history of changes) of each Wikipedia article
is available to all users – so that all users may keep track of each
other's work on updating articles.
RAEC Code of corporate standards
пЂЄ The Code of Professional activities in the Internet developed by the Russian
Association for Electronic Communications (hereinafter – RAEC).
пЂЄ According to the Code, owners of the recourses obliged to:
пЂЄ ensure that the general terms and conditions of service available to all users (both
actual and potential) of their services.
пЂЄ ensure that the provision of third party access to personal data is carried out in
compliance with the rules set by users provided the content (need for authorization,
to setting a password, payment, etc.), and agreements (contracts) with these users.
пЂЄ are not responsible for user-generated content and is not obliged to carry out
moderation and pre-moderation of content, if only it is not the purpose of this
resource.
пЂЄ when received complaint for wrongful or unlawful user-generated content that
contains the necessary information for the formal verification and reference to the
exact address of the location of such content on the Internet, make efforts for
blocking public access to this content.
Delineation of responsibilities
пЂЄ From a legal point of view of relationships on the Internet is
relationship between the user (physical of legal entity) and
provider, legal entity providing access to Internet or web resources.
пЂЄ Content provider should be distinguished from the provider of
Internet access as a service connection.
The European Directive on electronic commerce provides that the
administration of websites should:
пЂЄ Promptly remove infringing content;
пЂЄ To be passive, that is not directly participate in the activities of the
user;
пЂЄ Does not control user;
пЂЄ Tend to receive remuneration for services rendered.
Responsibilities of provider in
Russian law
пЂЄ 1st approach: telecom operator is responsible for all
actions of users
пЂЄ 2nd approach: frees operator from liability for users'
actions in that case, if he fulfills certain conditions
related to the nature of service and interaction with
other interested stakeholders, especially persons
whose rights are violated by the actions of users.
пЂЄ 3rd approach: telecom operator is not responsible for
any actions of users.
Conclusions
1. The need to streamline regulation.
2. Revaluation of the legal nature of user agreements.
3. New understanding of jurisdiction in cyberspace.
4. Establishment of the competent web communities.
5. Revision of the standards of responsibility.
Thank you!
For all inquiries: dvbirve@yandex.ru
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