This article is dedicated to the problematic issue of possibility of finding of the holder of the domain name, and consequently responsible person for the information posted on the concrete web-site.
Perhaps some readers directly faced with violation of their non-property rights (honor, dignity, business reputation, non-interference in private life) using Internet resources.
Today opportunity of individuals and legal entities, their representatives, lawyers to get information about a specific domain name owner has disappeared. And consequently the possibility of protecting rights of individuals neutralizes and the largest of existing spaces to arbitrariness creates.
Following events served as preconditions of such situation. July 6, 2010 the Parliament adopted Law of Ukraine № 2438-VI, which ratified the Convention about the Protection of Individuals with Regard to Automatic Processing of Personal Data and the Additional Protocol to the Convention for the Protection of Individuals in connection with automatic processing of personal data regarding supervisory authorities and transborder data flows.
To implement the Convention in the Law of Ukraine “About protection of personal data” June 1, 2010 № 2297-VI (hereafter “Law”) was adopted. Article 30 of the Law established date of its entry into force – January 1, 2011.
That’s why from the beginning of the year in cases of referral lawyers requests – most registrars have taken silent position while the others refuses to provide such information referring to the law. These facts are confirmed by three concrete requests of the author of this article to the registrars of domain names and conducted conversations with their employees.
If partially move away from the main issues, it would be correctly to recall the following. In our country the situation with the administration (management) of Internet space has been having uncertain and chaotic character for last ten years. If we analyze the information and documents on appropriate online resources of one party (www.ua-nic.net) and another (www.hostmaster.ua), my personal belief is that state does not exercise real control and management in the virtual world.
Today, state represented by “Ukrainian Network Information Center” (UANI) carries out administration of domain de jure, but Dmitry Kohmanyuk represented by limited liability company «Hostmaster» does it de facto.
Besides, both parties are fond of ten years races for the right to govern in the Internet space of Ukraine. The desire to get commitment by any means from the Internet Corporation of Assignment Names and Numbers (ICANN), by the way this organization carries out administration of global Internet space, is more than the desire to improve online existence for Ukrainian users.
Current legislation (articles 1, 56 of the Law of Ukraine “About telecommunications”) gives definition of the notion “domain. UA» – top level domain of hierarchical address space of the Internet, based on a coding country names corresponding to international standards, for the service of address space of Ukrainian segment of Internet. The law decided the issue about, so to speak, “private” administration of the address space of Internet by organization that formed by self-governing organizations of operators / ISPs and registered in accordance with international requirements.
It is estimated that today there are about 150 domain name registrars, who have legal relations with “Hostmaster” about delegation of authority for registration and maintenance.
Thus, if we focus on that desire to close the access to information about holders of domain names does not come from formal administrator, but from “absolutely real”, you will understand the reasons of this decision and its goal.
According to information posted on the official website “Hostmaster”, referring to law administrator of domain .UA closed public access to information about individuals, who have registered a domain name – field whois. Administrator of top domain Dmitry Kohmanyuk said that the administration of domain didn’t initiate closing the service, but had been forced to do it as law-abiding company. Also he said that it had done so on their own initiative, since any bodies have not “asked” to block access to personal information.
“According to the words of substituent of the board of Internet Association of Ukraine Alexander Olshansky, registrars have sent a request to the Ministry of Justice to clarify whether law “About Personal Data” requires stop working whois, News of Kiev writes (kievstreet.net). In his opinion, the closure of this service is nonsense in the world. “
Convinced, that the actions of the “actual administrator” of top domain .UA and registrars of lower levels that appear in refusing to provide information about the owners of domain names are illegal. This position applies only to cases of referral request, in connection with the protection of legitimate rights and argues the following.
Article 14 of the Law determines that the distribution of personal data provides actions for transfer of information about an individual from personal data bases with the consent of the subject of personal data. The spreading of personal data without consent of subject of personal data or his authorized person is allowed in cases determined by law only in the interests of national security, economic prosperity and human rights.
That is the spreading of personal data is allowed in case of two conditions: the requester’s right is determined by law and request was sent to the interests of national security, economic prosperity and human rights.
Article 2 of the Law determines that the State Register of databases of personal data is the only state information system of collection, storage and processing of information about registered databases of personal data.
Question arises: are databases of registrars of domain names registered databases of personal data in the context of the above-mentioned rules of law? Obviously, not. Today there is no registered personal database at all.
Thus according to the article 30 of the Law instructions was given to the Cabinet of Ministers of Ukraine to ensure the adoption of legal acts provided by this law within six months after enactment of the law.
Only April 6, 2011 Decree of the President of Ukraine 390/2010 “About the Regulation on State Service of Ukraine on protection of personal data” was issued. According to items 7, 8 of clause 4 of the Regulations it is determined that SSPPD of Ukraine according to its tasks: register bases of personal data and maintain the State Register of databases of personal data, provides excerpts from it, and ensures the establishment of the State Register of databases of personal data.
According to item 2 of the Decree Cabinet of Ministers of Ukraine is obliged to resolve the issue of deployment and logistical support of the State Service of Ukraine on protection of personal data within one month.
It is clear that service which has not started to perform its functions objectively could not register a database of personal data.
Let’s consider specific plot – on one of web-sites false information was spreaded about the person. This person appealed to the lawyer with demand for attorney’s protection of violated moral rights.
In order to establish the responsible person for the information posted on the website, the lawyer appeals with the request to the administrator of the upper domain (“Hostmaster”) and/or registrar of the domain name (“X”). Request is sent in accordance with and under article 6, 10 of the Law of Ukraine from 19.12.1992, № 2887-XII “About the advocacy”, Decree of the President of Ukraine “About some measures to improve the level of advocacy» № 1240/99 from 09.30.1999.
As it was already mentioned, as a result the lawyer does not receive a response or receives a denial with reference to the Law. Therefore there is no way to protect the legitimate rights of principal.
However, I am convinced that part 2 article 14 of the Law must be used in this situation. Because firstly we have a violation of human rights, and secondly the law defined the right of lawyer to receive this information. Guarantees of advocacy protected by law. Actually a person unable to go to court. One of the great achievements of legal state is reduced to nothing.
Another question about “dampness” and ” incompleteness ” of legislative determination of specific rights of lawyer, and actually part 2, article 14 of “newly” Law.
Also it is interesting why the registrars of domain names and “Hostmaster” became the first in the ranks of “law abiding”. Because there are several databases of individuals (real estate agents on objects and their owners, networks of chemists on clients, taxi services etc.). None of these bases did not become closed to access.
Personally for me it seems that it is profitably to someone to reiterate its importance and uniqueness. As a result there is failure of constructs that is necessary not only for Internet users but also people called to defend their rights.
For clarification we have sent relevant inquiries to the Ministry of Justice of Ukraine,Commissary of the Verkhovna Rada of Ukraine on Human Rights, the Parliamentary Committee on Justice, Association of Enterprises “Ukrainian Network Information Center” and LLC “Hostmaster”. None of these esteemed organizations and individuals have not provided answers yet. We will wait!
Probably reminding of norms of the Convention “About Protection of Human Rights and Fundamental Freedoms” and all protocols to it, the Constitution of Ukraine, procedure codes, special laws and interpretations of the Supreme Court plenum about opportunity of every person to defend their rights in court is not necessary.
Legislator ignores the significance and magnitude of the problem in vain. Today the Internet space is millions of users and billions of profits. The potential threat of illegal actions in the virtual world is more than any modern weapon. Striking example is activity of Julian Asandzha – founder of «WikiLeaks».
Protection moral rights infringed wih help of Internet space became impossible in Ukraine. Because It is unknown – Who is responsible?