The Presidential Council considered the creation of a Digital Code premature
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The Russian Presidential Council for the Codification and Improvement of Civil Legislation opposed the idea of the Ministry of Digital Development to develop a Digital Code. The Council considered that the creation of the code was premature, and the subject of its regulation was defined “vaguely and contradictory”: information in civil law can be considered the content of almost all of its institutions – from concluding contracts to drawing up a will. The Ministry of Digital Development hopes to find a compromise. But lawyers tend to agree with the advice, believing that local changes in individual laws are sufficient to resolve the legal issues of digitalization.
“Kommersant” got acquainted with the decision of the Presidential Council for the codification and improvement of civil legislation dated December 1 on the draft Digital Code, which was developed by the Ministry of Digital Development (see “Kommersant” dated October 8) as part of the industry development strategy until 2035. The Code involves the systematization of legal acts in the field of IT and telecommunications.
What is the Codification Council
The Council for the Codification and Improvement of Civil Legislation is an advisory body created in 1999 by decree of Russian President Boris Yeltsin. According to Vladimir Putin’s decree of 2003, draft federal laws in the field of civil law prepared by ministries and departments must undergo a council examination before their submission to the government. He himself can also propose changes to legislation. The council’s conclusions are sent to the president, the chambers of the Federal Assembly, the government, the Constitutional and Supreme Courts. The council consists of 40 people, including civil law scholars, doctors and candidates of legal sciences, members of the Russian Academy of Sciences, judges of high courts, employees of the State Duma, the presidential administration, the government, the Prosecutor General’s Office, the Ministry of Justice, law schools and business associations.
The Council rejected the idea of creating a code, citing the fact that the subject of its regulation is defined “vaguely and contradictorily”: the preamble of the concept refers either to all “information relations” or to relations in the organization and use of digital platforms. However, “information in civil law can be considered the content of almost all of its institutions – from concluding contracts to drawing up a will containing information about the circle of heirs and the property of the testator,” write the council’s experts. In addition, it is unclear how the Digital Code will relate to other codes and federal laws. Currently, legislation in the field of IT and communications is distributed between the Federal Law “On Information” from 2010, the Federal Law “On Communications” from 2003, the Federal Law “On Personal Data” from 2006, as well as a number of by-laws.
At the same time, the council recognizes that it is necessary to improve legislation regarding the digital environment: existing legal acts “are archaic and internally contradictory, and the categorical apparatus enshrined in them does not correspond to the terminology of both private and public law.” The head of the council, Pavel Krasheninnikov, explained to Kommersant that the code is “a set of a huge number of laws, it should be created on the basis of established legislation, which is not in the same dynamics as the number is developing, so it is very early to talk about the code.”
The Ministry of Digital Development took note of the council’s recommendations and expects to “find a compromise solution.” The ministry added that they have already finalized the concept of the code with the industry, interested departments and the State Duma IT Committee: “We expect to send the concept to the government in the near future.” The Ministry of Digital Development remains confident that the Digital Code is necessary. The head of the Duma IT committee, Alexander Khinshtein, did not see the council’s decision. Rostelecom believes that “the emergence of a Digital Code would be useful.”
According to the managing partner of Bartolius Law Firm, Yuliy Tay, regulation of the digital sphere is necessary, but it is really premature to create a code: “Codification of legal norms requires the formulation of basic postulates and axioms, the basic principles of regulation of this area, understanding its impact on practice, testing new rules, identifying gaps, contradictions, problems and their step-by-step solutions. That is, this is a completely different “level of piloting”. First you need to learn how to drive a children’s bike, and then a plane.”
BGP Litigation competition law lawyer Elena Satina agrees that problems of IT legislation can still be resolved without a code: “Codification is required when legal relations are stable, which cannot be said about the field of digital technologies, which is rapidly developing. Otherwise, the code will require constant amendments.” In addition, Yuliy Tai believes, there are currently few experts in this area, there is no in-depth research, no legal doctrine, so for now it is necessary to regulate the figure by local changes in laws.
Elena Satina clarifies that the council’s expert opinions are advisory in nature, but are taken into account when making the final decision on the draft law. Yuliy Tay adds: “The council’s conclusions are usually listened to; this is one of the most authoritative legal review bodies in the Russian Federation, whose decisions are taken extremely seriously.”
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