According to the “Media Consumption in Russia – 2020” study conducted by Deloitte, for the third year in a row, messengers remain the most popular smartphone function 1 .
Due to the constant growth in the popularity of instant messengers, the issue of legal protection of the privacy of correspondence stored on citizens’ mobile phones has become particularly relevant both in the scientific community and in practical activities 2 . This problem also justifiably causes concern among citizens themselves.
Criminal legal basis
Violation of the secrecy of correspondence or other method of confidential exchange of information should be understood as unauthorized acquaintance of a third party with data transferred by one person to another.
If a violation is found, the punishment is imposed based on the provisions of Art. 138.
Unauthorized access as :
- lack of permission to review from at least one of the participants in the information exchange process;
- lack of judicial grounds to familiarize yourself with the correspondence of other persons.
We will talk about the legal significance of violation of the secrecy of correspondence, telephone conversations, postal, telegraph or other messages in the national Criminal legislation of the Russian Federation in the article.
Personal correspondence
Unauthorized access to personal information contained in personal private letters/messages/e-mails sent to another private person/from another person. via mail, mobile communications (SMS, mms) or the Internet (via any social network, Skype, Asya).
Phone conversation
Unauthorized familiarization with the content of telephone conversations, including long-distance ones , using a parallel telephone or by connecting specialized devices to the network, recording conversations on any storage medium.
Postal message
Unauthorized viewing of letters, telegrams, secograms received by another person, before or after the addressee becomes familiar with the contents of the message.
Unauthorized access to information transmitted using the capabilities of telegraph lines.
Don't care about resources
There are two resources in business that should not be wasted. It's time and money. Often, trying to save our resources, we waste our partners’ time and money.
For example, an advertising agency sends 12 posts per month for the client’s social networks for approval. The client gives feedback in the format of voice messages with a total duration of 20 minutes. In his speech, the client jumps from topic to topic, voices his thoughts about the project as a whole and does not structure the speech in any way.
What losses did these voice messages cause for the project?
The editor spent 20 minutes listening to the voice messages. It took about another half hour to record the edits and transfer them to the author. When the author sent in the corrected texts, the editor spent another 40 minutes checking the texts to ensure they matched the client's wishes from the voicemails. At the same time, thoughts on improving the project did not reach the recipients at all, since the account forwarded messages only to the editor as feedback on the content. All this time, the editor could work on new texts and search for information. It’s not worth talking about improvements: the client’s ideas have gone nowhere, which in the future can lead to negativity on the part of the client and the termination of the contract.
The general director of the company, due to her busyness and constant movement, abused her voice.
One day, in some general correspondence, she sent a large number of voice messages, one of which contained information for me. In another rush, I opened the messages, but due to poor internet, noise or something else, I didn’t listen to them to the end and forgot.
It turned out that at the end of the material she set a task for me, which consisted of quickly replacing some positions in the bar menu layout with others. By the time the menu was printed and delivered, everything had changed again, and in the end they left the original positions, which I, in fact, did not correct.
I am sure that everyone can come up with a decent list of such stories.
In business communication you should adhere to the following rules:
- do not use voice messages;
- always indicate the subject of the letter: this will save time searching through the mail, and will also allow you to assess the importance of the letter during a quick glance.
- Don't click the "reply all" button if only one specific person needs your answer. If your partner's colleagues are on the copy, leave them in, even if you're not sure they need the answer. In this case, it is better to make sure that the information reaches the recipients than to guess who to respond to.
Crime Analysis
At what point is the violation of the confidentiality of correspondence reasonably considered completed? A crime is considered committed if the offender has become familiar with the contents of any type of message .
Familiarization without permission with the information content of messages transmitted by private individuals to each other in any way is a crime , since it violates the constitutional rights of a citizen of the Russian Federation (Part 2 of Article 23).
The corpus delicti is formal . Object: the right of a citizen to non-disclosure of the information content of correspondence, messages received through mobile, telegraph communications, and Internet capabilities.
Objective side: familiarization with the contents of messages transmitted in any way from one private person to another. Not valid for correspondence conducted by persons in institutions that restrict the freedom of offenders.
The size of the information is not a factor influencing the degree of punishment .
Subject: a person who has reached the age of sixteen .
Subjective side: presence of intent . By getting acquainted with someone else's personal information without permission, a person understands that he is acting illegally.
Criminal-legal characteristics: violation of the constitutional right of another person by a person who has reached the age of sixteen, acting with intent, using or not using special means in the process.
Secrecy of correspondence, telephone and other conversations
The question often arises: in what cases can we talk about an invasion of a person’s privacy? Often, citizens in public transport or on the street talk quite loudly with someone on a variety of (including private) topics. In such a situation, can people passing by or nearby be considered criminals? In this case, the surrounding citizens are not violators. This is due to the fact that loudly speaking subjects do not take measures to maintain the confidentiality of information. But if, for example, a person standing next to you shows an unhealthy interest and tries to look into the phone of another person while he is texting with someone, this behavior will be unlawful.
Qualifying features
Consciously familiarizing yourself with the contents of someone else's correspondence/telephone conversations/messages of any kind, without obtaining permission from one of the participants in the communication or a judicial authority.
The fact of the crime is confirmed by the conviction of illegal access to private information . Persons sixteen years of age and older are subject to punishment.
A similar crime committed by an official who took advantage of personal influence or equipment at his disposal that helps to obtain secret information entails an increased degree of punishment .
Punishment and responsibility
Violation of the confidentiality of correspondence by a non-official is punishable by:
- imposing a fine of up to 8,000 rubles;
- a fine equal to salary and other income for a period of up to 6 months;
- compulsory work for up to 360 hours;
- correctional labor (up to a year).
Violation of the confidentiality of correspondence by an official is punishable by:
- imposition of a fine from 100 to 300 thousand rubles;
- a fine equal to salary and other income for a period of one to two years;
- deprivation of the right to work in certain positions, engage in certain types of activities for 2-5 years;
- compulsory work (up to 480 hours);
- forced labor (up to 4 years);
- arrest (up to 4 months);
- imprisonment (up to 4 years).
If caught in the illegal production/purchase/sale of equipment for obtaining confidential information , they are punished in accordance with Art. 138 h 2 of the Criminal Code of the Russian Federation:
- imposing a fine of up to 200 thousand rubles;
- a fine equal to salary and other income for a period of up to 18 months;
- restriction of freedom (up to 4 years);
- forced labor (up to 4 years) with deprivation of the right to certain activities (up to 3 years) / without deprivation of the right;
- imprisonment (up to 4 years) with deprivation of the right to certain types of activities (up to 3 years) / without deprivation of the right.
The maximum punishment for violating the secrecy of telephone conversations is determined by the court, taking into account the provisions of Art. 138 of the Criminal Code of the Russian Federation and taking into account the motives of the person who committed the offense and the conditions under which it was committed.
Examples from judicial practice
Case 1
The company hired an employee to monitor any information received/sent via corporate email .
During the course of the activity , the personal non-corporate e-mail of one of the organization’s employees was hacked, after which it was established that he had disclosed trade secrets to the company’s competitors.
At the trial, the data obtained by hacking the defendant’s e-mail was not taken into account, since there was no legal permission to obtain it .
Case 2
An employee of a telecommunications company provided information about citizens' telephone connections for a fee . The court imposed a sentence of compulsory labor (400 hours).
Case 3
Driven by jealousy, the citizen managed to gain access to the contents of letters in an e-mail registered to her husband’s ex-wife and her page on a social network. Before being convicted of a crime, the offender repeatedly received personal information from the victim . By a court decision, the accused was sentenced to a fine of 24,00 rubles, in addition to which she was ordered to pay monetary compensation of 10,000 rubles to the victim.
From the point of view of the law, even reading a short SMS message that is not intended for you is a violation of Article 138 of the Criminal Code of the Russian Federation . Moreover, it does not matter how related your relationship is with the person whose personal “territory” you are violating.
If desired, if you are caught viewing data that is not intended for you, a person has the right to sue for such a display of curiosity .
Moreover, the court, in 99% of cases, will be on the side of the offended person and will award punishment. Violation of the confidentiality of correspondence may result in criminal liability.
Send data in image format
Let me just list what you don’t need to send in images, and you will feel this pain for yourself.
- Bank details. Those who have received such data by scan understand how worried you are when you retype an account number with a bunch of zeros.
- Photo of telephone contact.
- E-mail address. There are about as many options for making a mistake here as there are in a personal account.
- Press releases in PDF or JPEG format. What will a journalist think if he has to reprint information from a press release?
- Scanned documents with a request to make changes, especially if the recipient does not have the source.
- A photo of the address bar in the browser.
- Screenshot of a map indicating a point on the ground. Better send your address or geolocation (long live the 21st century!).
Everything is complicated: how the “new ethics” affects advertising
