The confrontation is concentrated in the sphere of personal data. Deprived of legal tools, commercial organizations collect and sell massive amounts of data illegally. Moreover, trade in information fits into the general commodification trend in which intangible goods, such as virginity, organs, information about one's personal life and knowledge, are monetized. There seem to be no obstacles to the legalization of personal data trafficking. Moreover, as long as the development of the economy and society is directly dependent on information and communication technologies (the "Bangemann Report"), this innovation should be welcomed. Can we agree with this position?
Earlier we already commented on the risks of illegal distribution of personal data, but now let's try to follow a different logic. Let us assume that the legislator has provided a mechanism to force cybercriminals out. His next task is to answer the question: is the information an object of civil rights?
Adoption of a data negotiability approach?
In view of the possibility of legal recognition of the civil turnover of personal data, it is necessary to answer the question of the "form" of distribution of personal data - information.
Article 5 of the Federal Law "On Information, Information Technologies and the Protection of Information" states that information may be the subject of civil law relations. This wording unconditionally qualifies information as an object of civil rights and therefore implies the possibility of its introduction into civil law relations.
Nevertheless, in the doctrine of Russian law do not cease disputes on the issue of attributing information to the objects of civil law. And this, in our opinion, is due to narrow interpretation of Art. 128 of the Civil Code of the Russian Federation, ignoring the positions of foreign courts and formalism.
Let's turn to the definition of information. According to Professor Braginsky, one of the authors of the Civil Code of the Russian Federation, information must be understood as "a set of information of legal significance, expressed in various forms and subject to monetary evaluation". Let us continue with the description of information as an institution.
Information is a non-consumable good that is not subject to physical depreciation.Information can be used repeatedly and does not depend on the material medium in which it is expressed.
The transfer of information from one person to another is inadmissible - only the transfer of proprietary rights to information is possible. Respectively, in property relations the subject of transactions is not information, but property rights to it.
The same information can be embodied in different forms(textual description, drawings, formulas, etc.) and in many copies. Thus the properties of information obviously do not allow to refer it to the objects of civil rights envisaged in Article 128 of the Civil Code of the Russian Federation.
Commodification of benefits is a process attractive to economists but suspicious to lawyers. Not least of all, this is due to the risks of violating the rights of the personal data subject and the shortcomings of data anonymization mechanisms.
The negotiability of personal data is an issue as fascinating as it is unresolved. it’s been a long time since information began to be monetized and traded, became the object of a turnover outside the law. Legally, the situation is much more complicated.
In our long-reading we confirmed the hypothesis that the solution to the problem of "commodification" of information depends on the "optics" chosen. We put forward arguments "for" and "against" the commodification of information. Without suggesting a solution to the problem, we believe that data trading is rather a negative phenomenon.
While acknowledging that information may be collected in excess of the limits of the law, we still believe that the introduction of massive amounts of information into turnover would entail disproportionate risks both for the personal data subjects and for third parties.