Article 152 of the Labor Code: what's new?
The rules for overtime pay have long been firmly established. Some cardinal and massive changes in Art. 152 of the Labor Code of the Russian Federation was not introduced from the very beginning of the Labor Code.
The only innovation in recent years has been a special procedure, different from that provided for in Article 152, of compensation for overtime work for employees of some organizations associated with the upcoming 2017–2018 football events in our country. – 2021 FIFA Confederations Cup and 2018 FIFA World Cup. This order is enshrined in Art. 11 of the law of 06/07/2013 No. 108-FZ.
Federal Law of July 27, 2006 No. 152-FZ
RUSSIAN FEDERATION
THE FEDERAL LAW
About personal data
Adopted by the State Duma on July 8, 2006
Approved by the Federation Council on July 14, 2006
(As amended by federal laws dated November 25, 2009 No. 266-FZ, dated December 27, 2009 No. 363-FZ, dated June 28, 2010 No. 123-FZ, dated July 27, 2010 No. 204-FZ, dated July 27, 2010 No. 227-FZ, dated November 29, 2010 No. 313-FZ, dated December 23, 2010 No. 359-FZ, dated June 4, 2011 No. 123-FZ, dated July 25, 2011 No. 261-FZ, dated April 5, 2013 No. 43-FZ, dated July 23, 2013 No. 205-FZ, dated December 21, 2013 No. 363-FZ, dated June 4, 2014 No. 142-FZ, dated July 21, 2014 No. 216-FZ, dated July 21, 2014 No. 242-FZ, dated July 3, 2016 No. 231-FZ, dated 02/22/2017 No. 16-FZ, dated 07/01/2017 No. 148-FZ, dated 07/29/2017 No. 223-FZ, dated 12/31/2017 No. 498-FZ, dated 12/27/2019 No. 480-FZ, dated 04/24/2020 No. 123 -FZ, dated December 8, 2020 No. 429-FZ, dated December 30, 2020 No. 515-FZ, dated December 30, 2020 No. 519-FZ, dated June 11, 2021 No. 170-FZ, dated July 2, 2021 No. 331-FZ)
Chapter 1. General provisions
Article 1. Scope of this Federal Law
1. This Federal Law regulates relations related to the processing of personal data carried out by federal government bodies, government bodies of constituent entities of the Russian Federation, other government bodies (hereinafter referred to as state bodies), local government bodies, other municipal bodies (hereinafter referred to as municipal bodies) , legal entities and individuals using automation tools, including in information and telecommunication networks, or without the use of such means, if the processing of personal data without the use of such means corresponds to the nature of the actions (operations) performed with personal data using automation tools, that is, it allows, in accordance with a given algorithm, a search for personal data recorded on a tangible medium and contained in filing cabinets or other systematic collections of personal data, and (or) access to such personal data. (As amended by Federal Law No. 261-FZ dated July 25, 2011)
2. This Federal Law does not apply to relations arising when:
1) processing of personal data by individuals solely for personal and family needs, unless the rights of the subjects of personal data are violated;
2) organizing the storage, acquisition, recording and use of documents of the Archival Fund of the Russian Federation and other archival documents containing personal data in accordance with the legislation on archival affairs in the Russian Federation;
3) (Clause has lost force - Federal Law dated July 25, 2011 No. 261-FZ)
4) processing of personal data classified in accordance with the established procedure as information constituting a state secret;
5) (Clause introduced by Federal Law No. 123-FZ dated June 28, 2010; repealed on the basis of (as amended by Federal Law No. 223-FZ dated July 29, 2017)
3. Provision, distribution, transfer and receipt of information about the activities of courts in the Russian Federation containing personal data, maintenance and use of information systems and information and telecommunication networks in order to create conditions for access to this information are carried out in accordance with the Federal Law of December 22, 2008 No. 262-FZ “On ensuring access to information about the activities of courts in the Russian Federation.” (Part introduced - Federal Law No. 223-FZ dated July 29, 2017)
Article 2. Purpose of this Federal Law
The purpose of this Federal Law is to ensure the protection of the rights and freedoms of man and citizen when processing his personal data, including the protection of the rights to privacy, personal and family secrets.
Article 3. Basic concepts used in this Federal Law
For the purposes of this Federal Law, the following basic concepts are used:
1) personal data - any information relating to a directly or indirectly identified or identifiable individual (subject of personal data);
11) personal data authorized by the subject of personal data for distribution - personal data, access to which is provided by an unlimited number of persons by the subject of personal data by giving consent to the processing of personal data authorized by the subject of personal data for distribution in the manner prescribed by this Federal Law; (Clause introduced - Federal Law dated December 30, 2020 No. 519-FZ)
2) operator - a state body, municipal body, legal or natural person, independently or jointly with other persons organizing and (or) carrying out the processing of personal data, as well as determining the purposes of processing personal data, the composition of personal data to be processed, actions (operations) transactions performed with personal data;
3) processing of personal data - any action (operation) or set of actions (operations) performed using automation tools or without the use of such means with personal data, including collection, recording, systematization, accumulation, storage, clarification (updating, changing), extraction, use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data;
4) automated processing of personal data - processing of personal data using computer technology;
5) dissemination of personal data - actions aimed at disclosing personal data to an indefinite number of persons;
6) provision of personal data - actions aimed at disclosing personal data to a certain person or a certain circle of persons;
7) blocking of personal data - temporary cessation of processing of personal data (except for cases where processing is necessary to clarify personal data);
destruction of personal data - actions as a result of which it becomes impossible to restore the content of personal data in the personal data information system and (or) as a result of which material media of personal data are destroyed;
9) depersonalization of personal data - actions as a result of which it becomes impossible to determine the ownership of personal data to a specific subject of personal data without the use of additional information;
10) information system of personal data - a set of personal data contained in databases and information technologies and technical means that ensure their processing;
11) cross-border transfer of personal data - transfer of personal data to the territory of a foreign state to an authority of a foreign state, a foreign individual or a foreign legal entity.
(Article as amended by Federal Law dated July 25, 2011 No. 261-FZ)
Article 4. Legislation of the Russian Federation in the field of personal data
1. The legislation of the Russian Federation in the field of personal data is based on the Constitution of the Russian Federation and international treaties of the Russian Federation and consists of this Federal Law and other federal laws defining cases and features of the processing of personal data.
2. On the basis of and in pursuance of federal laws, state bodies, the Bank of Russia, local government bodies, within the limits of their powers, may adopt regulatory legal acts, regulatory acts, legal acts (hereinafter referred to as regulatory legal acts) on certain issues relating to the processing of personal data. Such acts cannot contain provisions limiting the rights of personal data subjects, establishing restrictions on the activities of operators not provided for by federal laws, or imposing obligations on operators not provided for by federal laws, and are subject to official publication. (As amended by Federal Law No. 261-FZ dated July 25, 2011)
3. Features of the processing of personal data carried out without the use of automation tools may be established by federal laws and other regulatory legal acts of the Russian Federation, taking into account the provisions of this Federal Law.
4. If an international treaty of the Russian Federation establishes rules other than those provided for by this Federal Law, the rules of the international treaty apply.
5. Decisions of interstate bodies adopted on the basis of the provisions of international treaties of the Russian Federation in their interpretation, contrary to the Constitution of the Russian Federation, are not subject to execution in the Russian Federation. Such a contradiction may be established in the manner prescribed by federal constitutional law. (Part introduced - Federal Law No. 429-FZ dated 08.12.2020)
Chapter 2. Principles and conditions for processing personal data
Article 5. Principles for processing personal data
1. The processing of personal data must be carried out on a legal and fair basis.
2. The processing of personal data must be limited to the achievement of specific, pre-defined and legitimate purposes. Processing of personal data that is incompatible with the purposes of collecting personal data is not permitted.
3. It is not allowed to combine databases containing personal data, the processing of which is carried out for purposes that are incompatible with each other.
4. Only personal data that meets the purposes of their processing are subject to processing.
5. The content and volume of personal data processed must correspond to the stated purposes of processing. The personal data processed should not be redundant in relation to the stated purposes of their processing.
6. When processing personal data, the accuracy of personal data, their sufficiency, and, if necessary, relevance in relation to the purposes of processing personal data must be ensured. The operator must take the necessary measures or ensure that they are taken to delete or clarify incomplete or inaccurate data.
7. Storage of personal data must be carried out in a form that makes it possible to identify the subject of personal data, no longer than required by the purposes of processing personal data, unless the period for storing personal data is established by federal law, an agreement to which the subject of personal data is a party, beneficiary or guarantor. data. The processed personal data is subject to destruction or depersonalization upon achievement of the processing goals or in the event of the loss of the need to achieve these goals, unless otherwise provided by federal law.
(Article as amended by Federal Law dated July 25, 2011 No. 261-FZ)
Article 6. Conditions for processing personal data
1. The processing of personal data must be carried out in compliance with the principles and rules provided for by this Federal Law. Processing of personal data is permitted in the following cases:
1) the processing of personal data is carried out with the consent of the subject of personal data to the processing of his personal data;
2) the processing of personal data is necessary to achieve the goals provided for by an international treaty of the Russian Federation or law, to implement and fulfill the functions, powers and responsibilities assigned by the legislation of the Russian Federation to the operator;
3) the processing of personal data is carried out in connection with the participation of a person in constitutional, civil, administrative, criminal proceedings, proceedings in arbitration courts; (As amended by Federal Law No. 223-FZ dated July 29, 2017)
31) processing of personal data is necessary for the execution of a judicial act, an act of another body or official, subject to execution in accordance with the legislation of the Russian Federation on enforcement proceedings (hereinafter referred to as the execution of a judicial act); (Clause introduced - Federal Law dated July 29, 2017 No. 223-FZ)
4) the processing of personal data is necessary for the execution of the powers of federal executive authorities, bodies of state extra-budgetary funds, executive authorities of state authorities of the constituent entities of the Russian Federation, local government bodies and the functions of organizations involved in the provision of state and municipal services, respectively, provided for by the Federal Law of July 27, 2010 No. 210-FZ “On the organization of the provision of state and municipal services”, including registration of the subject of personal data on a unified portal of state and municipal services and (or) regional portals of state and municipal services; (As amended by Federal Law dated April 5, 2013 No. 43-FZ)
5) processing of personal data is necessary for the execution of an agreement to which the subject of personal data is a party or beneficiary or guarantor, as well as for concluding an agreement on the initiative of the subject of personal data or an agreement under which the subject of personal data will be a beneficiary or guarantor; (As amended by federal laws dated December 21, 2013 No. 363-FZ; dated July 3, 2016 No. 231-FZ)
6) the processing of personal data is necessary to protect the life, health or other vital interests of the subject of personal data, if obtaining the consent of the subject of personal data is impossible;
7) the processing of personal data is necessary to exercise the rights and legitimate interests of the operator or third parties, including in cases provided for by the Federal Law “On the protection of the rights and legitimate interests of individuals when carrying out activities to repay overdue debts and on amendments to the Federal Law “ On microfinance activities and microfinance organizations”, or to achieve socially significant goals, provided that the rights and freedoms of the subject of personal data are not violated; (As amended by Federal Law dated July 3, 2016 No. 231-FZ)
the processing of personal data is necessary to carry out the professional activities of a journalist and (or) the legitimate activities of a mass media outlet or scientific, literary or other creative activity, provided that the rights and legitimate interests of the subject of personal data are not violated;
9) the processing of personal data is carried out for statistical or other research purposes, with the exception of the purposes specified in Article 15 of this Federal Law, subject to the mandatory anonymization of personal data;
91) the processing of personal data obtained as a result of depersonalization of personal data is carried out in order to increase the efficiency of state or municipal government, as well as for other purposes provided for by Federal Law No. 123-FZ of April 24, 2021 “On conducting an experiment to establish special regulation in in order to create the necessary conditions for the development and implementation of artificial intelligence technologies in the constituent entity of the Russian Federation - the federal city of Moscow and amending Articles 6 and 10 of the Federal Law “On Personal Data”, and the Federal Law of July 31, 2021 No. 258-FZ “On experimental legal regimes in the field of digital innovation in the Russian Federation”, in the manner and under the conditions provided for by these federal laws; (Clause introduced - Federal Law dated April 24, 2020 No. 123-FZ) (As amended by Federal Law dated July 2, 2021 No. 331-FZ)
10) (Clause repealed - Federal Law dated December 30, 2020 No. 519-FZ)
11) processing of personal data subject to publication or mandatory disclosure in accordance with federal law is carried out.
11. Processing of personal data of objects of state protection and members of their families is carried out taking into account the specifics provided for by the Federal Law of May 27, 1996 No. 57-FZ “On State Protection”. (Part introduced - Federal Law No. 148-FZ dated 01.07.2017)
2. Features of the processing of special categories of personal data, as well as biometric personal data, are established respectively in Articles 10 and 11 of this Federal Law.
3. The operator has the right to entrust the processing of personal data to another person with the consent of the subject of personal data, unless otherwise provided by federal law, on the basis of an agreement concluded with this person, including a state or municipal contract, or by adoption of a relevant act by a state or municipal body (hereinafter - operator's instructions). The person processing personal data on behalf of the operator is obliged to comply with the principles and rules for processing personal data provided for by this Federal Law. The operator’s instructions must define a list of actions (operations) with personal data that will be performed by the person processing personal data and the purposes of processing, the obligation of such a person must be established to maintain the confidentiality of personal data and ensure the security of personal data during their processing, as well as the requirements for the protection of processed personal data must be specified in accordance with Article 19 of this Federal Law.
4. A person processing personal data on behalf of an operator is not required to obtain the consent of the subject of personal data to process his personal data.
5. If the operator entrusts the processing of personal data to another person, the operator is responsible to the subject of personal data for the actions of the specified person. The person processing personal data on behalf of the operator is responsible to the operator.
(Article as amended by Federal Law dated July 25, 2011 No. 261-FZ)
Article 7. Confidentiality of personal data
Operators and other persons who have access to personal data are obliged not to disclose to third parties or distribute personal data without the consent of the subject of personal data, unless otherwise provided by federal law. (As amended by Federal Law No. 261-FZ dated July 25, 2011)
Article 8. Publicly available sources of personal data
1. For the purpose of information support, publicly available sources of personal data (including directories, address books) may be created. Public sources of personal data, with the written consent of the subject of personal data, may include his last name, first name, patronymic, year and place of birth, address, subscriber number, information about profession and other personal data reported by the subject of personal data. (As amended by Federal Law No. 261-FZ dated July 25, 2011)
2. Information about the subject of personal data must be excluded at any time from publicly available sources of personal data at the request of the subject of personal data or by decision of a court or other authorized government bodies. (As amended by Federal Law No. 261-FZ dated July 25, 2011)
Article 9. Consent of the subject of personal data to the processing of his personal data
1. The subject of personal data decides to provide his personal data and consents to their processing freely, of his own free will and in his own interest. Consent to the processing of personal data must be specific, informed and conscious. Consent to the processing of personal data can be given by the subject of personal data or his representative in any form that allows confirmation of the fact of its receipt, unless otherwise provided by federal law. In case of obtaining consent to the processing of personal data from a representative of the subject of personal data, the powers of this representative
How are overtime hours compensated?
In organizations not associated with big football, overtime is compensated at the employee’s discretion:
- increased salary;
- additional rest.
For monetary compensation, the Labor Code of the Russian Federation establishes a minimum payment: one and a half times for the first 2 hours, double for all subsequent hours.
The duration of the rest must be no less than the processing time. In this case, time worked in excess of the norm is paid in the usual single amount.
These are all legal minimums. The organization has the right to increase pay or increase rest time.
What should you pay extra for?
Increased pay is due in cases where, at the initiative of the employer, the employee works longer than his working day (shift) lasts, and in the case of cumulative accounting, he works more working hours than the normal number of hours during the accounting period.
In order to correctly determine the scale of processing, strict accounting of the time worked by each member of the workforce is necessary.
Overtime does not include and, accordingly, is not paid additionally:
- delays at work on the initiative of the employee himself. They do not pay extra for them and do not provide time off (see letter of Rostrud dated March 18, 2008 No. 658-6-0);
- overtime of personnel with irregular working hours. They are entitled to additional leave for excess expenses.
You can learn more about it from the article “Additional leave for irregular working hours .
Are there any restrictions on overtime work?
Of course there is.
Overtime should not be part of the system. An employer can only occasionally engage an employee additionally.
Overtime should not exceed 4 hours for 2 consecutive days and 120 hours per year.
Violation of the norms is punishable by an administrative fine on the organization and its officials under Part 1, and in case of repeated violation - under Part 4 of Art. 5.27 Code of Administrative Offenses of the Russian Federation.
Read about restrictions on overtime work in the article “When is it permissible to hire an employee to work overtime?” .
The Supreme Court of the Russian Federation analyzed the practice under Art. 152 Civil Code of the Russian Federation
March 29, 2021 6:16 pm
The Supreme Court of the Russian Federation has studied judicial practice in disputes regarding the protection of honor, dignity and business reputation over the past five years
On March 29, the Supreme Court of the Russian Federation published a “Review of the practice of courts considering cases on disputes regarding the protection of honor, dignity and business reputation” for the period from 2010 to 2015. As reported in the review, judicial statistics indicate a stable number of such cases considered annually: in On average, 5,000 cases are considered per year in courts of general jurisdiction and 800 cases in arbitration courts.
“The analysis of judicial practice materials in general indicates the existing uniformity in the consideration of cases of this category,” the document notes. However, at the same time, the RF Armed Forces emphasized that the mistakes made by the courts and the questions they arise confirm the need to pay attention to a number of points.
1. If the parties to a dispute about the protection of business reputation are a legal entity or individual entrepreneur in an area not related to business and other economic activities, such a dispute falls within the competence of courts of general jurisdiction.
2. The competence of arbitration courts includes the consideration of cases on the protection of business reputation in the field of entrepreneurial and other economic activities, regardless of the subject composition of the participants in disputed relations.
3. The fact of dissemination of untrue, defamatory information can be confirmed by any evidence that meets the requirements of relevance and admissibility.
4. The absence of at least one circumstance from the mandatory set of conditions for satisfying the claim is grounds for refusal to satisfy the stated requirements.
5. When deciding whether the information disputed by the plaintiff is defamatory in nature, as well as to assess their perception, taking into account the fact that the disseminated information can be brought to the attention of third parties in various ways, the courts, if necessary, should appoint an expert examination or engage for consultation specialist
6. When considering cases of protection of honor, dignity and business reputation, it is necessary to take into account that the value judgments, opinions, and convictions contained in the disputed statements of the defendants are not the subject of judicial protection under Art. 152 of the Civil Code of the Russian Federation, unless they are offensive in nature.
7. The person who disseminated certain information is released from liability if he proves that such information is generally true. In this case, it is not necessary to prove the validity of each individual word or phrase in the disputed statement. The defendant is obliged to prove the validity of the disputed statements, taking into account the literal meaning of the words in the text of the message. The determination of which statements are key is made by the court when assessing the information as a whole.
8. Criticism of the activities of persons performing public functions is permissible within wider limits than in relation to private individuals.
9. The plaintiff’s demands for protection of honor and dignity are not subject to satisfaction if he disputes the information set out in the defendant’s official appeal to a government agency or official, and the appeal itself does not contain offensive language and is conditioned by the defendant’s intention to exercise his constitutional right to appeal to government officials. bodies and local governments.
10. A media outlet is not responsible for the dissemination of information that is untrue and discredits business reputation if it reproduced verbatim a message published by another media outlet and unless it is proven that it knew or should have known that the disseminated information was untrue .
11. In the event that it is impossible to identify the person who disseminated defamatory information, an application to recognize such information as untrue is considered in a special proceeding.
12. Damage to the business reputation of an organization can be caused by the dissemination of defamatory information - both about the organization itself and in relation to persons included in its management bodies, as well as employees of this organization.
13. In the event of reorganization of a legal entity, the legal successor or founder of the legal entity has the right to file a claim to protect its business reputation.
14. Dissemination of false information about the trademark under which the plaintiff’s products are manufactured detracts from the plaintiff’s business reputation, even if the plaintiff himself is not named in the publication.
15. The dissemination of false information about the introduction of bankruptcy proceedings in relation to a legal entity or the presence of significant debts damages its business reputation.
16. If defamatory information posted on a website on the Internet is found by a court to be untrue, the owner of the site or another person authorized by him who posts information on this site is obliged to remove such information at the request of the victim.
17. Information contained in procedural documents, for appeal of which another legal procedure established by law is provided for, cannot be considered as untrue.
18. The award of monetary compensation for moral damage in cases of protection of honor, dignity and business reputation must meet the goal for which this method of protecting the non-property rights of citizens has been established. The amount of compensation for moral damage must meet the requirements of reasonableness, fairness and be proportionate to the consequences of the violation.
19. A claim for compensation for damages cannot be refused solely on the grounds that the exact amount cannot be determined. The amount of damages to be compensated in this case is determined by the court, taking into account all the circumstances of the case, based on the principles of fairness, proportionality and in order to eliminate the consequences of the violation.
20. Bringing a person to administrative responsibility for insult (Article 5.61 of the Code of Administrative Offenses of the Russian Federation) is not a basis for releasing him from the obligation to provide monetary compensation for moral damage caused to the victim in accordance with Art. 151 Civil Code of the Russian Federation.
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Is overtime work on weekends and holidays?
No is not.
Payment for work on weekends and holidays is made according to its own rules - no less than double the amount (Article 153 of the Labor Code of the Russian Federation).
About the features of “holiday” pay when working in shift conditions, read the article “Payment for holidays during a shift work schedule .
When calculating overtime, they first find out whether the extra-limit time applies to weekends and holidays, and only then include it in the calculation - so as not to overestimate the amount of the surcharge, increasing it for two reasons at once.
Commentary to Art. 153 of the Criminal Code of the Russian Federation
The object of this crime is the family structure, the interests of the family.
From the objective side, the crime consists of replacing one child with another without the consent of at least the parents of one of the children being replaced. A crime is possible not only in the form of replacing someone else’s child with another stranger, but also someone else’s child with one’s own or one’s with someone else’s child.
Child substitution is only possible for infants, usually newborns. This situation is possible when the child has not yet shown clearly individually defined signs or the parents have not yet had time to realize them. The location of the crime does not matter. Usually it is a maternity hospital or other children's institution, but it can also be a street if a child, say, is left in a stroller on the street.
The corpus delicti is formal. The crime is considered completed after the actual replacement of the child has been committed.
From the subjective side, actions to replace a child are considered criminal if they are committed with direct intent. A mandatory element of the crime in question is selfish or other base motives. Selfish motives are considered to be those aimed at obtaining material benefits from persons interested in substitution (for example, receiving a reward) or getting rid of material costs (for example, in the case of the birth of a physically disabled child). In theory and practice, hooliganism, revenge, envy, etc. are considered base motives.
If the substitution is accompanied by the subsequent presentation of claims of a property nature as a condition for the return of the child, then under appropriate conditions the act may be qualified in conjunction with Art. 163 of the Criminal Code of the Russian Federation.
Taking into account the above-mentioned motives for the crime, we can conclude that if the replacement is carried out by mutual consent of the parents of both children (for example, if they want to have a child of the opposite sex), there is no element of child replacement. Also, raising an abandoned child does not constitute a crime. True, it should be noted that there is no complete unanimity on the last issue among scientists and practitioners.
When the substitution of a child was preceded by his abduction, the act must be qualified as a set of crimes under paragraph “e” of Part 2 of Art. 126 and art. 153 of the Criminal Code of the Russian Federation.
If a child is not replaced, but taken away from his parents (for example, by declaring him dead at birth and then transferring him to an interested party), then such actions are considered as kidnapping (Article 126 of the Criminal Code of the Russian Federation).
The general subject of the crime is a sane person who has reached the age of sixteen. When a child is replaced by an official (for example, the head of a maternity hospital), the act must be qualified in conjunction with the article on official crime.
When replacing a child in a maternity hospital due to negligence, the perpetrators, if there are grounds and meet the requirements of the official, may be held liable for negligence (Article 293 of the Criminal Code of the Russian Federation) or subject to disciplinary liability.
How is overtime paid to “shift workers”?
If it was not possible to organize a shift schedule without overtime, overtime must be paid at an increased rate. In this case, one should be guided by clause 5.5 of the Recommendations on the use of flexible working time regimes, approved by Resolution of the State Committee for Labor of the USSR and the Secretariat of the All-Union Central Council of Trade Unions dated May 30, 1985 No. 162/12-55. It requires payment at one and a half times the first 2 hours, which fall on average on each working day of the accounting period, and at double the rate for all other over-limit hours.
For an example of calculation and other nuances of shift pay, see the article “What does a shift work schedule mean under the Labor Code of the Russian Federation (nuances)?” .
You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
Article 152.2 of the Civil Code of the Russian Federation. Protecting the privacy of citizens (current version)
In addition, when considering court cases related to the protection of privacy, courts are obliged to apply the provisions of the Constitution of the Russian Federation: Art. 2, according to which: “Man, his rights and freedoms are the highest value. Recognition, observance and protection of human and civil rights and freedoms is the duty of the state”; Art. 15, according to which: “1. The Constitution of the Russian Federation has supreme legal force, direct effect and is applied throughout the entire territory of the Russian Federation. Laws and other legal acts adopted in the Russian Federation must not contradict the Constitution of the Russian Federation”; Art. 18, according to which: “The rights and freedoms of man and citizen are directly applicable. They determine the meaning, content and application of laws, the activities of the legislative and executive powers, local self-government and are ensured by justice”; Art. 23, according to which: “1. Everyone has the right to privacy, personal and family secrets, protection of their honor and good name”; Art. 24, according to which: “1. Collection, storage, use and dissemination of information about a person’s private life without his consent is prohibited.”
It should be noted that in some cases, courts unreasonably refuse to protect the right to privacy of famous people, citing public interests.
The issue of the procedure and methods for determining the public availability of information about the private life of a citizen has not been clearly resolved; it has not been indicated how a citizen can express his will to disclose information.
In particular, it does not define how the information was disclosed, in what form, in what volume, in what terms, in what place, in what source, for what periods this applies, how to find out and prove that the information was disclosed by the face and precisely by his will, etc. Moreover, the provisions of paragraph 1 of the commented article have internal contradictions. If the information was disclosed by the citizen himself in one source, then this means that the citizen himself and of his own free will disseminated the information in this source and this is an expression of his consent. However, does this mean that he will forever be forced to lose the right to privacy, since information about his private life, once on the Internet, will be distributed and used by any person and in any sources for an unlimited time without his consent.
The commented article makes an attempt to specify what exactly is included in the content of the concept of private life. At the same time, the list of information constituting the content of privacy specified in Art. 152.2 of the Civil Code is approximate. Obviously, in the opinion of the legislator, it included its most important components.
Among them, information that constitutes personal and family secrets should be highlighted. It should be noted that in Part 1 of Art. 23 of the Constitution of the Russian Federation speaks of inviolability of private life separately from the right to personal and family secrets. However, there is no doubt that the right to personal and family secrets is an integral part of the right to privacy. The legislator proceeds from the fact that secrecy in this case does not cover up any antisocial or illegal activity.
The difference between personal and family secrets is that if a personal secret directly affects the interests of only a specific person, then a family secret affects the interests of several persons related by family relationships.
2. The right to protection of private life arises not only in cases where information about the private life of a citizen is obtained unlawfully, but also when access to such information is obtained upon the occurrence and (or) fulfillment of obligations (primarily contractual). In particular, doctors, lawyers, etc. receive such access. Thus, we are talking about medical, lawyer and similar secrets.
In this regard, in paragraph 2 of Art. 152.2 of the Civil Code establishes that, unless otherwise provided by agreement of the parties to the obligation, the parties do not have the right to disclose information about the private life of a citizen who is a party or third party in such an obligation that becomes known to them during the occurrence and (or) fulfillment of the obligation. The same is stated in a number of other legal acts. So, according to paragraph 1 of Art. 53 of the Law on Communications, information about subscribers and the communication services provided to them, which became known to telecom operators due to the execution of an agreement on the provision of communication services, is information of limited access and is subject to protection in accordance with the legislation of the Russian Federation.
3. In paragraph 3 of the commented article, it is especially emphasized that the use of information about the private life of a person obtained in violation of the law when creating works of science, literature and art, if such use violates the interests of the said person, is prohibited.
The ban will primarily affect creators of memoirs, autobiographical and biographical literature. However, it is not entirely clear what is meant by violation of the interests of the specified person. Thus, if unflattering but true information about the private life of a famous person is published, they will undoubtedly violate the interests of this person. In addition, works of science, literature or art include magazine or newspaper articles in the investigative genre, which are unthinkable without this type of information. Obviously, the authors of the mentioned works will be forced to justify themselves by citing state, public or other public interests.
4. The commented article does not say about the methods by which violated rights to privacy are protected. The only mention of sanctions that can be applied to violators is made in paragraph 4 of Art. 152.2 of the Civil Code of the Russian Federation. It states, in particular, that in cases where information about the private life of a citizen, obtained in violation of the law, is contained in documents, video recordings or other tangible media, the citizen has the right to apply to the court with a demand to remove the relevant information, as well as suppression or prohibition of its further dissemination by confiscating and destroying, without any compensation, copies of material media with relevant information produced for the purpose of introducing into civil circulation, if it is impossible to remove the information without destroying such copies of material media.
The above method of protection as a type of suppression or prohibition of actions that violate the right or create a threat of its violation, which is referred to in Art. 12 Civil Code (see commentary to it).
5. Intangible benefits, including private life, can be protected not only by the bearers of these rights, but also by other persons. As an example, we can cite clause 5 of Art. 152.2 of the Civil Code, according to which the right to demand protection of the private life of a citizen in the ways provided for in paragraph 2 of Article 150 of the Civil Code and this article, in the event of his death, are the children, parents and surviving spouse of such a citizen. This person exercises his powers for life.
This method of protection can be considered as a special type of hereditary succession.
