Violation of privacy - Commentary to the Criminal Code of the US Federation

Violation of privacy

1. Illegal collection or dissemination of information about the private life of a person constituting his personal or family secret without his consent or dissemination of this information in a public speech, publicly demonstrated work or mass media (as amended by Federal Law No. 08.12 .2003 No. 162-F3) -

is punishable by a fine of up to two hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to eighteen months, or by compulsory labor for up to three hundred and sixty hours, or by correctional labor for up to one year, work for a period of up to two years with deprivation of character to hold certain positions or engage in certain activities for up to three years or without it, or by arrest for up to four months, or by imprisonment for up to two years from now the right to hold certain positions or engage in certain activities for up to three years No. 420-FZ).

2. The same acts committed by a person using his official position -

is punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of one to two years, or by deprivation of the right to hold certain positions or engage in certain activities for a period of two to five years, or forced labor for a period of up to four years with deprivation of character to hold certain positions or engage in certain activities for up to five years or without it, or by arrest for up to six months, or by imprisonment for up to four years with deprivation of the right to hold certain positions or engage in certain activities for up to five years No. 162-FZ, dated 22.12. .2008 № 272-FZ, from 07.03.2011 26-FZ, from 07.12.2011 420-FZ). 1

1. According to the Constitution, everyone has the right to inviolability of private life, personal and family secrets, protection of one's honor and good name (Part 1, Article 23 of the Constitution). The collection, storage, use and dissemination of information about a person's private life without his consent is not allowed. This prohibition is one of the guarantees of a person for privacy.

The concept of "private life" includes the area of ​​human activity that relates to an individual, concerns only him and is not subject to control by society and the state if it is illegal.

Information that constitutes a personal or family secret includes data that can not be disclosed, in the opinion of the person to whom this information relates. At the same time, information that was previously published in one way or another can not constitute a secret.

2. The objective side of the crime is characterized by an active form of behavior and is expressed in the performance of one of the following alternative actions: 1) illegal collection of information about the private life of a person constituting his personal or family secret without his consent; 2) the illegal dissemination of such information without the consent of the person; 3) dissemination of this information in a public speech, publicly demonstrated work or mass media, which characterizes not only the act itself, but also the way it is committed.

3. How to collect information can be considered any way to get it-eavesdropping, questioning of informed persons, photographing, audio-video recording of information, familiarization with documents and materials, their abduction, copying, etc. The way of gathering information for the qualification of the an act as a crime does not matter. The main thing is that this information is collected illegally, without the consent of the victim. The collection of information associated with penetration into the home, connection to the telephone line, forms a set of offenses and must be classified according to the aggregate of crimes (from Articles 138 or 139 of the Criminal Code). Illegality of collecting information means the implementation of these actions not on the grounds or in violation of the procedure established by law, not due subject, etc.

4. Under dissemination of information can be considered any unlawful or without the consent of the person to bring to the attention of at least one person. The way information is disseminated does not affect the qualification of the deed.

Dissemination of information in a public speech means bringing them to the attention of others in a speech intended for an indefinitely large audience, for example, in a speech to voters working at a specific enterprise, at a rally, lectures, etc.

The dissemination of information in a publicly displayed work takes place in cases where the above information is included in the content of the work and this work is brought to the attention of other persons in various ways (in a movie, novel, painting, etc.).

Mass media means a periodical printed publication, radio, television, video program, newsreel program, another form of periodic dissemination of mass information.

In cases where the responsibility for the dissemination of certain information is established by other articles of the Criminal Code (for example, disclosure of the secrecy of adoption - Article 155 of the Criminal Code), the act should be qualified according to a special rule in accordance with Part 3 of Art. 17 of the Criminal Code. If information about private life is a part of other information, also protected by criminal law, for example, the data of preliminary investigation, then the disclosure of such information should be qualified according to the aggregate of crimes under the article under article and art. 310 CC.

The collection and dissemination of information based on the provisions of the law, for example, the Criminal Procedure Code, on the police, on operational search activities, on the media, etc., does not constitute the crime in question.

5. The offense is formal. The action is over from the moment of illegal actions to collect or disseminate information about a person's private life.

6. The subjective side of the crime is characterized by guilt in the form of direct intent. Motive and purpose do not affect the qualification of the crime.

7. The subject of the crime is a sane individual who has reached the age of 16.

8. The qualifying sign of the crime in question is its commission by a person using his official position.

Therefore, for the presence of a qualified crime (Part 2 of the article being commented), a special entity is needed. They are any person who illegally collects or disseminates information about a person's private life using his official position.

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Actions of officials can be, if there are grounds for this, qualified in conjunction with the composition of a misdemeanor.

When deciding on the existence of the crime in question, one should proceed from the need to ensure a balance between the right of citizens to protect honor, dignity, and business reputation, on the one hand, and other rights and freedoms guaranteed by the Constitution - freedom of thought, speech, , the right to freely seek, receive, transmit, produce and disseminate information by any lawful means, the right to privacy, personal and family secrets, the right to resort to States nnye bodies and local self-government (Art. 23,29, 33 of the Constitution), the other (see. Resolution of the Plenum of the US Armed Forces from 24.02.2005 number 3).

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