13:09 Provision and collection of evidence via the Internet | |
| Herald Vasa № 3, 2003 SECURITY AND GATHERING EVIDENCE THROUGH THE INTERNET. Procedural status of evidence obtained by means of the Internet Camoy complex issue in the controversy over crimes committed via the Internet, is the issue of proof of the offense, which, in turn, splits into two components: 1) Legal grounds and procedures for collecting and securing evidence, and 2) the admissibility of such evidence in terms of procedural law. The Internet is a tool for business communication, receipt of relevant information, conducting business, therefore increasing the number of users can become victims of crime 'on the web. The fight against them in recent years ceased to be an idle theoretical problem. Moreover, the offenses on the Internet may affect the rights and interests of non-users on the network and did not even know of its existence. So, slanderous article against the head of the company will have an impact both on the honor, dignity and business reputation of the directly slandered, and the business reputation of the company, regardless of whether they know about this article or not. Many refuse to combat crime, believing that with regard to information disseminated on the Internet, are not Russian law, or that there is no way to prove the offense as well as information on the site can be easily changed or removed from it at any time . However, existing jurisprudence leans ___________________________________ * A "offenses on the Internet (web)" in this paper will be understood as civil wrongs, and crimes committed using the Internet. ____________________________________ To the fact that the offenses on the Internet should apply Russian law and that the evidence admissible in terms of procedural law, there is. One example of this practice can serve as a decision of the Arbitration Court of the City of St. Petersburg and the Leningrad Region of 06.04.2000 on case number A56-8603/99, which we will say later. Russian civil law applies to the majority of crimes committed using the Internet. Thus, domestic law should apply to offenses against the good name and reputation in the event that the injured individual is a citizen of the Russian Federation (Art. 1198 and paragraphs 1, 2, Art. 1195 Civil Code), has a residence in the territory of the Russian Federation (Art. 1198 and paragraphs 3, 4, 5, Art. 1195 Civil Code), has been granted asylum in the territory of the Russian Federation (Article 1198 and paragraph 6 of art. 1195 Civil Code), or if the affected legal entity established on Russian territory (Article . 1202 Civil Code). Territory of the Russian Federation recognized land, the subsoil and the airspace within the State Border of the Russian Federation (Article 1 of the Law "On State Border of the Russian Federation"). If the offense using the Internet harmed, then the rules of the place of committing the act (Section 1, Art. 1218 Civil Code) (in our case - the location information on a server within Russia) or the location of these effects (§ 2 tbsp. 1218 Civil Code), if the tortfeasor had foreseen or should have foreseen the consequences of the offensive in the territory of Russia. Russian law also applies to offenses in respect of copyright and related rights released or unpublished works that are in any objective form: 1) in the Russian Federation, irrespective of the nationality of the authors and their successors; 2) outside the Russian Federation, but by citizens of the Russian Federation; 3) outside Russia, but the right which is recognized for foreign authors (their successors) in accordance with international treaties of the Russian Federation (Article 5 of the Act Russian Federation "On Copyright and Related Rights"). If the offense was an instrument of unfair competition against the manufacturer, active in the Russian market, it can also apply Russian law (Art. 1222 GKRF). So, almost any tort committed using the Internet, can be considered a Russian court. Administrative responsibility for violations using the Internet are natural and legal persons, regardless of nationality and place of incorporation, the offense committed on the territory of the Russian Federation, the continental shelf and exclusive economic zone of the Russian Federation (paragraph 1 of Art. 1.7, Art. 2.6 Code of the Russian Federation on Administrative Violations of 30/12/2001). Criminal Law is applicable in respect of crimes committed: a) in the Russian Federation, on the continental shelf, exclusive economic zone, the Russian ship (Article 11 of the Criminal Code of the Russian Federation); b) in a foreign country, where \ 's act also recognizes transgressed, if the defendant was not convicted of it (part 1 of article. 12 of the Criminal Code); a) abroad against the interests of Russia and foreign citizens stateless persons, who now reside in the territory of the Russian Federation, but have not been convicted of a crime abroad (Part 3. 12UKRF). Obviously, in most cases the offenses on the Internet for a Russian citizen or organization or in the territory of Russia can and should apply Russian law. However, for the application of Russian law of the offense to be proved. On the evidence of crimes on the Internet, that is, the evidence on which a particular law, the court determines the presence or absence of circumstances justifying the claims and defenses of the parties, and other circumstances important for the proper consideration of the case (Article 49 of the RSFSR Code of Civil Procedure, Art. 64 APC; Art. 74 of the Code), as well as ways of obtaining them and will continue it. SECURITY AND COLLECTION OF EVIDENCE Before calling the executive authorities or the court about the crime on the Internet, you first need to collect and provide evidence that can be confirmed by the presence of the offense. Optimal at the moment is the way to certification of web pages by a notary. A simple listing of pages in just remark A. Ivlev, most likely, will not be recognized by a court document, unlike a notarized. The evidence provided by a notary public, shall be recognized as valid. if obtained in compliance with procedural rules. An example is the decision of the Arbitration Court of the City of St. Petersburg and the Leningrad Region of 06.04.2000 on case number A56-8603/99. The Court concluded that: "The arguments about that. that the documents can not be assessed as relevant and admissible evidence, unfounded, since the ... report, drawn up by a notary meets the requirements for written evidence, ie, contains information about the circumstances relevant to the case, namely the information contained on the Web-page ... The absence in the record of the expressed order of actions of the notary in a network ... can not serve as a basis for evaluating the information contained therein as untrue. " NOTARIAL provide evidence The person interested in the certification of the infringing information is in the name of the notary request, asking to certify the fact of finding such information on a particular address on the Internet. In this case, the request shall include: the purpose of securing evidence, the address of a web page document details. It is desirable to specify the title text or graphical information, its location on a web page specific citations, which will be used in a lawsuit, complaint or statement. It is advisable to specify a sequence of actions that must perform a notary for the screen image of interest to the page. A notary is an internet page to the specified address, print it, verifies the presence of material with these details. If the request appeared certain words and phrases, check their availability in hard copy. It is desirable that the printout automatically reflected printing date and address of the file and web page was printed entirely in the form in which she appears before the visitor. A certified print a Web page is written evidence, as the image on the screen, as well as on paper, tells the user the same information, regardless of whether, in what medium they are reflected - the luminescent layer of the computer screen or paper. The information contained in the text or graphic image, rather than on a physical medium, which is the hallmark of documentary evidence (Article 75 of the APC, Art. 63 GPK RSFSR). To be fair to note that in the strict sense of procedural law on the paper printout of the browser window (program, through which the files from the Internet is an accessible human-readable form) is not authentic image on the screen. In a paper printout adds information about the printing time and location of the file on the Internet. It seems, however, that this formal considerations should not stand in the way of justice, whose main objectives in accordance with Article 2 of the RSFSR Code of Civil Procedure and Article 2 of the APC is to protect the rights, freedoms and lawful interests, strengthening the rule of law and combating crime, as well as the correct and timely consideration of the case. Note that you can assure Julia quotations unchanged. Value judgments in the request is unacceptable, since the estimate of materials is the prerogative of the court (Article 56 of the RSFSR Code of Civil Procedure and Article. 71 APC). Checking the page address and details of the text or object, the notary shall prepare minutes of notarial acts, providing written evidence by accessing a Web page and its subsequent inspection in the manner prescribed by paragraph 18 of Article 35 and Articles 102 and 103 Fundamentals of the legislation on notaries. As already noted, the protocol should describe not only the page itself, but also how to access it, as well as all the actions that were carried out to obtain information of interest. Should pay special attention to the fact that the notary provides evidence only on the dispute while it is in the Trial stage of dryness (Article 72 of the APC and art. 57 GPK RSFSR), or until the proceedings in the administrative procedure (Article 102 • Fundamentals of Legislation on Notary). Print page attached to the protocol. In this protocol, painted lawyer and spoke to him the person indicated passport details and address of permanent proof of the latter, put the stamp. On the notarial act that paid stamp duty, an entry in the registry. This procedure notary providing evidence in practice was implemented in St. Petersburg. How does this notarial act is performed in Moscow and other regions, the author, unfortunately, is not known. It is useful to develop a single standard. Instruction on the order of a notary public notaries of the RSFSR ", approved by Order of the Ministry of Justice of the RSFSR of 06.01.87 № 01/16-01, has lost its force. However, the procedure provided by it to provide evidence (Chapter 19, "Ensuring the evidence"), in our opinion, may well be applied in practice. Using log files to the quality of evidence Log files - it's automatic diary server provider, which contains information about completed with the files on the server activities and persons who have committed them. However, they quickly become obsolete as new information over time replaces the previous one. Therefore, when using log files as evidence of problems can occur. In this case, you should contact the provider with a request for a certified copy of his leadership, e-log file, or part thereof, as well as their printing as soon as possible after placing the disputed material to the site. Keep in mind that individuals provide their own log files, and even excerpts from the provider is not required. He may refuse to provide log files, if there is a risk bringing him in as a respondent. In this case, a petition for such evidence should be submitted in the course of investigation or preparation of the case for review. Upon request, the court or the investigator to provide such proof of service provider is obligated. The log files as evidence have been used successfully in the 000 "Promo-RU" against 000 "educational books plus". Using reports SEARCH ENGINES about new web pages. Search engines (search engines are programs available on the Internet that are constantly scan the Internet looking for newly emerged pages. Finding a new page, the search program assigns a certain number and a description of, and sometimes completely writes the contents of its memory so that in case the user from viewing of relevant information to quickly find and provide a link to this page. Thus, all the pages available to them information and the time of their appearance quite fully described in the databases of the "searchers." Such a description of the contents pages of search engine " Aport "Company" Agam "used in that case at the suit of" Promo-RU. "The plaintiff referred to the remains of the scan about the information on the website the defendant, which were recognized by the appropriate evidence. Scan results of search engines is also possible to request a privately, and with the help of the competent authorities. useful, in our view, the resolution of the dispute may be statistical and information services on the number, frequency, and regional specificity of visits to the site of interest. Such information could be crucial in determining the status site as a network media, calculating the amount of damages (in a criminal case, the amount of damage) or non-pecuniary damage and in other situations. To obtain the above information should contact the appropriate statistical Internet services with a request for certificate of attendance statistics interest to site or page. authoritative in this area are services such as SPYLOG AND TOPLIST. To exclude the possibility of influence of stakeholders on the objectivity of statistical information, to request information should be before the official proceedings on the dispute. determine who was responsible for placing INFORMATION second phase of a successful offensive against the perpetrators is to establish the persons responsible for placing false, damaging information on the site and the provider's server. domain administrator, as a formal contact person. In accordance with the Rules and fees for registration services for second-level domains in the zone. RU (hereinafter Regulation) __________________________________ published on the site RIPN - WWW.RIP.NET / NIC / DNS / REGL.DOC ________ Registration Rules TorLISTuzhe does not exist, it was absorbed by MAIL.RU and currently exists as an Internet service. __________________________________ and rules for the registration of second level domains in the zone. RU (hereinafter - the Rules of Registration ) ___________________________ WWW.RIPN.NET: 8080/NIC/DNS/REGISTRY/CONTRACT/REGLAM.HTML ____________________________ responsible for everything that happens in the address space of its domain for all conflict situations, as well as the use of his password, and, consequently, the domain itself for an unlawful purpose is primarily the domain administrator. According to the Rules by the domain administrator is the person or entity that is listed under «ADMIN-on" forms the domain description. "Domain Administrator determines the order ... using the domain name ... [and therefore] is responsible for selecting a domain name, a possible violation of trademark rights, as well as for the conflict situations arising from the use of the domain name. Administrator chooses and registers individual password for access to information about the domain and is responsible for all acts committed with the use of their password, according to the agreement ... " These duties and responsibilities are consolidated in each contract with RIPN specific domain administrator. Model Treaty ______________________ WWW.RIPN.NET: 8080/NIC/DNS/REGISTRY/CONTRACT/contract.HTML _______________________ states that on this basis and in accordance with its terms administrator takes responsibility, including those mentioned above and as 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, the rules of registration of second level domains in the zone. ru, Provisional Regulations on the registration center domain. Furthermore, in accordance with paragraph 4.2 of the Model Treaty domain administrator accepts responsibility for the actions of employees, as well as for the actions of third parties, using their password. Thus, the domain administrator from the moment of entering his name into the central RIPN database is personally responsible for the use of a domain, including for illegal purposes, regardless of who made use of the domain. The name of the domain administrator can be found in the central RIPN database using the WHOIS, which is a kind of search engine available on the Internet and search for information about the administration of domains in the databases of domain registrars. The database administrator enters information when registering a particular domain. WHOIS program can be used at the following Internet site: WWW. RIPN.NET: 8080/NIC/WHOIS / (information about the administration of domains in the zone. RU), WWW.RIPE.NET / PERL / WHOIS (international search), WWW.INTERNIC.COM / WHOIS.HTML (information about the administration of top-level domains naprimer.SOM. NET,. ORG). The help received, usually contains the name of the administrator or his corporate name and address of individuals or the location of the organization, the name and address of the ISP's DNS servers, other useful information for the dispute. for providing false information about yourself when registering a domain or not updating information if it changes the domain administrator is responsible up to the cancellation of registration of its domain name (paragraphs 4.12 and 4.13 of the Rules). Therefore, we should assume that in most cases when the registration is given reliable information. Log files - evidence against the authorized persons. Log files hosting provider, typically contain information about what the authorized person, at what time, in what way the action made to files on the server site. By way of an authorization can establish who is responsible for all activities committed by him or on his behalf. Hosting Provider-mi are companies that provide services to the site (a collection of files) on your material carrier of information (server) and provide access to the site. They should be distinguished from service providers, providing only access to the network nodes Internet, that is providing telecommunications services (transmission, but not storage), since the latter have fewer opportunities to provide evidence. | |
|
| |
| Total comments: 1 | ||
| ||
