Technology, media and telecommunications (TMT): legal support
Legal services and comprehensive legal support for IT companies, telecommunications companies and other companies of TMT sector
The activity of the TMT sector poses a large number of legal questions for their owners regarding the development of regulatory documents, registration of relationships with founders, employees, customers, buyers, partners, as well as government and regulatory authorities. The services of lawyers specializing in information technology are also in demand among owners of Internet resources and entrepreneurs who have their own website or conduct business over the Internet.
In fact, business of any company in the technology, media and telecommunications sector is regulated by various legal norms of various branches and sub-branches of law: civil, labor, corporate, administrative, criminal, copyright, legislation on the protection of personal data, consumer protection, advertising, anti-corruption legislation (in some cases, not only by the norms of national law, but also by legal acts of transnational action), etc. There are also special legal acts regulating the activities of telecommunications companies, IT companies and organizations in the field of media.
Every day the regulators pay more and more attention to the development of information technologies, which is reflected in numerous changes in federal legislation.
Features of comprehensive legal support for IT companies, telecommunications companies
The main feature of the activity of companies in the TMT sector is that their activities concern many legal aspects. Many features of the legal support of organizations depend precisely on what type of company the TMT sector is (IT, media, telecommunication).
For example, the provision of telecommunications services requires a license, the activities of media companies may require registration as a mass media.
Any of the companies in the TMT sector is faced with the need to comply with the rules on the protection of copyright and intellectual property, as well as the regulation of legal relations when creating or acquiring rights to works, software and other results of intellectual activity.
In addition to the above, a rather significant role in the legal support of the activities of organizations in the TMT sector is played by support of contract work. Such as drafting various types of contracts (license agreements, service contracts, contracts for the promotion of goods/services, lease agreements, etc.), checking draft contracts submitted by counterparties, negotiating with counterparties, drawing up protocols of disagreements, legal support when changing the terms of contracts or termination of contracts.
With the development of Internet technologies, almost every company has a need to maintain its own site, which contains information about the organization, advertising materials, contracts are concluded (public offer), personal data of site users are collected, etc. In this regard, it becomes necessary to comply with all requirements legislation to the procedure for working on the Internet (for example, to the procedure for processing personal data, to the procedure for concluding public offer agreements, the procedure for collecting electronic payments, providing information about goods / works / services, the content of advertising materials, etc.).
Moreover, there are frequent precedents of disputable situations in the course of the activities of the TMT sector companies (claims from counterparties, inspections by authorized authorities, disputes related to participation in procurement, disputes in the field of copyright and intellectual property).
Thus, in addition to having knowledge of the content of the legally established requirements governing the activities of the TMT sector, it is extremely important to know the specifics of law enforcement practice and the skills of interaction with counterparties, control and supervisory authorities, and in some cases the practice of judicial representation.
The specialists of our company are highly qualified in this area and constantly monitor the current legislation in the field of information law. We are also well aware of all the intricacies of protecting trade secrets, intellectual property rights and personal data on the network.
- Comprehensive protection of personal data collected by a Russian IT company, including the development of a policy for the protection of personal data, integration into agreements and contracts with employees and counterparties of provisions that ensure the protection of personal data and a number of other measures
- Development of a software distribution agreement for an American IT company in the Russian market
- Advising a Russian medical company on the organization of telemedicine medical care
- Comprehensive support for a South Korean IT company entering the Russian market
- Development and legal examination of contracts and agreements for a Russian IT company to protect confidential information and trade secrets
Intellectual property protection in the TMT sector
In view of the specifics of the digital economy, as well as in connection with the active development of information technologies, it is quite common to infringe the intellectual rights of bona fide participants in legal relations in the TMT sector. In particular, with an increase in the volume of information posted on the Internet or distributed in other ways through information technology, there is an increasing need to develop the most optimal mechanisms for protecting copyright and other intellectual rights.
The specialists of BRACE are highly qualified in the field of intellectual property rights protection, actively monitor the very rapidly changing legislation in the IT sector, and also use an individual approach to considering each legal situation using non-standard methods of solving the assigned tasks.
Features and methods of protection of intellectual rights
The main types of intellectual rights requiring protection in the TMT sector include:
- copyright (since there are often cases of plagiarism and / or resale of works of science, literature and art, soft, etc.);
- related rights;
- patent rights to inventions, utility models, industrial designs;
- trademarks, company names.
The main ways to protect intellectual property rights include:
- use of technical means preventing admission;
- confidentiality agreements;
- internal policies;
- registration of patent rights;
- pretrial procedure;
- trial procedure.
A feature of the protection of intellectual property rights in IT sector is the transnational nature of violations, which requires knowledge of not only national legislation, but also the law of the country where the offense was committed, as well as international law.
IT, media and telecommunications are characterized by increased risks of infringement of intellectual rights due to the openness of the information space. Often, the difficulty of proving an infringement of intellectual property rights is caused by the very rapid “removal” of materials and other documents/information by the infringers, which may become material evidence of violations. It is also not always easy to identify the person responsible for the violation of intellectual property rights.
One of the ways to prove the illegal use of certain materials on the Internet site is to promptly contact a notary, who has the right to draw up a protocol of the site inspection, fixing the placement of this or that information on it as of the specific date of the site inspection.
In some cases, proving the copyright for a work posted on the Internet can be very laborious and require building a strategy for protecting violated rights with an assessment of all possible risks depending on the behavior of the person committing the violation.
Also, cases of copyright protection for brand names and trademarks posted on the Internet and become well-known can be especially difficult, because refusal to use them, or illegal use by third parties, may cause losses.
In this regard, a special role is played not only by the construction of a line of protection for already violated intellectual rights, but also by the adoption of preventive measures aimed at protecting them and preventing violations from occurring.
Legal protection of software
According to Art. 1261 of the Civil Code of the Russian Federation, a program for computers (software) is an objectively presented set of data and commands intended for the operation of computers and other computer devices to obtain a certain result, including preparatory materials obtained during the development of a program for computers, and the audiovisual displays generated by it.
The software can be registered with Federal Service on intellectual property. Such registration is made solely at the request of the copyright holder and is not his obligation. In fact, copyright for all types of computer programs (including operating systems and software complexes) that can be expressed in any language and in any form, including the source text and object code, are protected in the same way as copyright for works of literature. At the same time, copyright does not apply to ideas, concepts, principles, methods, processes, systems, methods, solutions to technical, organizational or other problems, discoveries, facts, programming languages.
Despite the fact that registration of copyright for software makes it possible to protect the rights to software from its complete copying, partial reproduction / copying of software is possible. In this regard, the protection of the software algorithm is of particular importance. The software algorithm is protected by patenting. The procedure for obtaining a patent is more time-consuming than registering software with Federal Service on intellectual property, but it is thanks to it that it becomes impossible to patent software developments that are confusingly similar to already patented software.
To choose the best way to protect intellectual property rights to software, an individual consideration of software characteristics and an individual approach to the developer's needs are required.
Development and legal analysis of contracts for IT-sector
The field of information technology is rapidly developing, changing directions and relatively new for the Russian legislative regulation. In fact, any areas of activity in this area require elaboration through the conclusion of contracts of a diverse nature.
Features of legal analysis and development of contracts in the field of IT
In fact, organizations working in the field of information technology are faced with the need to conclude contracts even at the planning stage of its creation, since it is extremely important to settle legal relations between business partners, and to distribute capital invested in business.
Also, when recruiting personnel, it is important to determine the grounds on which the relationship will be built (a civil contract or an employment contract). A common situation in the IT field is the emergence of a conflict between an employee and an employer over the rights to the results of the employee's intellectual activity. The employer may adhere to the position that the software and other IT products created by the employee belong to the employer. However, the employee may consider this to be a violation of his copyright. As a rule, the results of an employee's intellectual activity may belong to the employer if the creation of an IT product was part of the employee's job function, his job duties (Article 1370 of the Civil Code of the Russian Federation). In this regard, it is extremely important to clearly regulate the employee's labor duties in the employment contract and job description. In addition, for these documents to be valid, it is necessary to comply with all procedures for transferring to the employee his copy of the employment contract and the procedure for familiarizing the employee with the legal acts of the employer.
In order to create an IT product, one company enters into a cooperation agreement with another. For example, an agreement for software development, an agreement for modifying an existing software, a license agreement, a technical support agreement, an agreement for the creation and / or promotion of a website and other types of agreements. A fairly common practice is the conclusion of mixed contracts, since in fact such contracts include the need to resolve issues: the provision of certain services, copyright compliance, minimization of tax risks, compliance with anti-corruption laws, liability of the parties in the presence of claims from third parties, and sometimes and compliance with international law.
When distributing IT products on the official websites of developers or distributors, special attention should be paid to the legal design of the website. The most common violations of the website are:
- failure to regulate the procedure for processing personal data of site users and/or failure to obtain consent from users to process personal data;
- violation of the requirements for the procedure for processing payments made through the site;
- incomplete provision of information on distributed products to the end consumer;
- violation of the requirements for advertising materials contained on the site;
- incomplete designation of public offer and other violations.
When creating IT products, special attention should be paid to the terms of reference, since the more detailed the requirements for the result of work on the creation of a particular product / achievement of a certain result are described, the more chances are to exclude the occurrence of conflicts because of a different understanding of the terms of contract execution by the customer and the contractor. It is the terms of reference that can become an evidence base in the event of a collision with an unscrupulous counterparty.
To avoid checks by control and/or supervisory authorities, as well as to avoid the occurrence of conflict situations with counterparties and / or third parties, it is recommended to conduct a timely legal analysis of contracts submitted by counterparties, as well as a detailed study of all the necessary conditions for the successful operation of IT- company and its legal protection.
Distribution of software
The general term “distribution” means the construction of mechanisms for the sale of goods/ works / services, debugging the system of goods turnover, including through intermediary companies (distributors) representing the products of the manufacturer / developer.
IT products, including software, are transferred by developers to other persons who distribute them. As a rule, this is since the manufacturers of an IT product, for its distribution in other states, are very costly to directly support its distribution among end consumers, immersion in the peculiarities of the national legislation of another state, interaction with customers. For these purposes, a national distribution company is involved, which is engaged in debugging the delivery of the product to the market. At the same time, there are various forms of execution of the so-called distribution agreements, which, due to the complexity of regulated legal relations, are often of a mixed nature and combine various types of agreements.
To distribute software by a distribution company, it is necessary to conclude a license agreement with the developer on the condition that the distributor has the right to conclude sub-license agreements. However, in Russian legislation, it will not always be optimal to conclude a sublicense agreement with the end user, since in fact the terms of such an agreement may include a software supply agreement, a software maintenance service agreement, etc. At the same time, to simplify the procedure for concluding agreements with end users, an offer agreement is concluded. At the same time, in order to avoid VAT taxation and receive the corresponding benefits (by virtue of subparagraph 26 of paragraph 2 of article 149 of the Tax Code of the Russian Federation), the agreement must include elements of a license agreement, in connection with which distributors sometimes refuse to name the agreement with the end consumer as a supply agreement software.
It is also important to pay special attention to the situation when a distributor concluding an agreement with a software developer undertakes to conclude agreements not with end users, but with other participants in the distribution chain. In this case, it is recommended to include in the main license agreement the conditions under which the products are sold at all stages of mediation. This will protect the rights of developers, as well as regulate the procedure for interaction between distributors.
Thus, the software distribution process requires detailed regulation through the elaboration of all the basic terms of contracts with an individual approach to the wishes of the customer and each specific legal situation.
Legal support of online stores
An increasing number of people prefer to shop without leaving their homes. Also, some stores are increasingly moving to the online format, as this can reduce the cost of renting premises, as well as expand the circle of potential buyers.
Features of legal support for online shops
The online store can carry out its activities by creating its own website and/or maintaining accounts on social networks. It is also possible to sell goods through a TV shop or by transmitting information about the goods and the rules for their purchase through the radio.
For sale and purchase of goods remotely, the requirements of Art. 30 of the Civil Code of the Russian Federation. However, the sale of goods remotely has its own characteristics, established by the Rules for the sale of goods by remote means, approved by the Government of Russia dated September 27, 2007 N 612 (hereinafter referred to as the Rules). According to these Rules, an offer of goods in its description addressed to an indefinite circle of persons is recognized as a public offer if it is sufficiently defined and contains all the essential terms of the contract. The seller's obligations to transfer the goods and other obligations related to the transfer of goods arise from the moment the seller receives the corresponding message from the buyer about his intention to conclude an agreement. In this case, the buyer's message must contain information about the delivery address of the goods.
It is important to note that the conditions for returning goods of good quality differ from the conditions provided for returning goods purchased in person, and not remotely. So, the buyer has the right to refuse the goods at any time before its transfer, and after the transfer of the goods – within 7 days. However, if information on the procedure and terms for returning the goods of good quality was not provided in writing at the time of delivery of the goods, the buyer has the right to refuse the goods within 3 months from the date of transfer of the goods.
If the buyer refuses the goods, the seller must return the amount paid, minus the seller's expenses for delivery from the buyer of the returned goods, within 10 days from the date the buyer makes the corresponding demand.
Also, the legal requirements of consumer protection legislation apply to the legal relationship between the seller of an online store and buyers.
Additionally, the online store is endowed with obligations to comply with the procedure for settlements with buyers remotely. At present, when the buyer pays for the goods, the seller is obliged to transfer the sales receipt to the buyer (for example, by sending it by e-mail).
In addition to the above operating conditions of an online store, it is important to pay special attention to the content of the information available on the website / social network page of such a store. Below are the basic requirements for the content of the information required to be submitted by an online store on its official website.
Structuring the information that should be contained on the website of the online store
Generally, the seller of an online store must ensure the confidentiality of personal data about the buyer in accordance with the legislation of the Russian Federation on personal data.
In addition, considering the need for the buyer to enter personal data about himself to purchase goods remotely, the seller automatically acquires the status of a personal data operator.
Considering the condition that the seller is obliged to sell the goods to any buyer who has made a corresponding application, in order to regulate the legal relations of the parties, it is recommended to post on the website and familiarize the buyer with the terms of the public offer.
In addition, information about the product, its characteristics, the procedure for its delivery, payment, receipt, and return should also be contained on the store’s website.
All materials posted on the site and constituting advertising must comply with the requirements of the advertising legislation.
Thus, the maintenance of the website of the online store is a very essential aspect of the seller's activities, which lays the foundations for the success of sales and protection from third-party claims and/or inspections by control/supervisory authorities.
In this regard, before placing any documents and materials on the store's website, it is recommended to carry out a detailed legal analysis of their content.
Legal support of digital projects
Development of various opportunities in IT, online trade, the creation of chat bots, financial settlements through electronic wallets, telemedicine, there is a tendency for business to move to the digital plane. More and more business projects are being implemented using virtual space and IT products.
Features of legal support for digital projects
Almost any digital project is characterized by a fast exchange of information and its openness. Quite a large amount of data is published in open sources or transmitted through telecommunication channels, which means that such data have risks of “interception” by persons to whom it is not intended, as well as risks of plagiarism. In this regard, it becomes necessary to secure the rights of authorship to products created as part of the implementation of digital and Internet projects, the distribution of rights and responsibilities between business partners, the development of Internet projects to increase their efficiency and legal security.
It is quite important to conduct a timely legal due diligence of IT projects, as well as a legal assessment of business plans for a particular project.
In addition, as part of the implementation of some business projects, an additional assessment is required of the need to comply with the requirements of legislation of a transnational nature (for example, in compliance with the requirements of legislation on the protection of personal data and anti-corruption legislation). If the Internet project is being implemented in another jurisdiction, an additional legal analysis of the legislation of the country in which the work is planned is required.
A special place in the legal support of Internet projects is taken by the support of startups, since the viability of the project depends on the preliminary detailed study of all possible risks that may arise in the activities of the company.
Also, a fairly common trend is the sale of already launched and established projects (for example, Internet services). At the same time, the current legislation does not contain special rules governing the procedure for conducting such transactions and their legal regulation depends on the composition of the transferred project, which may include an Internet service, website, logo, content, software, database, domain name, etc.
In fact, legal support for an Internet project includes the need for expert knowledge in various branches of law. For example, any implementation of a project requires knowledge in the field of legal regulation of information technology, the basics of contract law, skills in applying the norms of antimonopoly legislation, legislation on advertising, on the protection of personal data, etc.
In connection with the above, the success of the implementation of a particular Internet project depends, among other things, on the level of legal support and a comprehensive study of all possible legal risks.
Legal support of digital projects in life sciences
A fairly new direction in the development of IT technologies is their implementation in the field of life sciences.
For example, in the healthcare sector, various types of software are being introduced that allow a medical institution to keep electronic records of patients and significantly speed up the workflow. For the implementation of these technologies, it is important to comply with the requirements for the protection of medical secrets, as well as the requirements of ethical standards, taking into account the observance of the rights of patients. In this regard, before the introduction of special software into the work of a medical institution, it is necessary to conduct a legal analysis of the compliance of the work of this IT product with the requirements of legislation on the protection of public health, as well as legislation on the procedure for processing personal data. Particular attention should be paid to checking the person who implements this or that software for whether he has the rights to distribute the software (if the distributor is not the developer, but the distributor), since in the absence of such rights, the medical institution may be subject to claims in connection with illegal use of software.
In the pharmaceutical industry, the implementation of digital projects is very diverse. Starting from advertising of medicines and publishing information about scientific developments on the websites of pharmaceutical organizations, ending with scientific events and webinars. At the same time, the legislation on advertising imposes special requirements for advertising of drugs, which are mandatory, including in the online format. Conducting scientific events online, distributing recordings of webinars, should also take into account the legally established restrictions on their distribution. In particular, medical workers are not entitled to accept gifts and monetary funds from organizations involved in the development, production and (or) sale of drugs (with the exception of remuneration under contracts in the conduct of clinical trials, as well as remuneration associated with the implementation of pedagogical and (or ) scientific activity). Also, advertising of prescription drugs is allowed only in places where medical or pharmaceutical exhibitions, seminars, conferences and other similar events are held and in specialized printed publications intended for medical and pharmaceutical workers. It is important to take these and other limitations into account when introducing IT technologies into the pharmaceutical industry.
Federal Law N 323-FZ of November 21, 2011 “On the Basics of Health Protection in the Russian Federation” stipulates that telemedicine technologies are information technologies that provide remote interaction of medical workers with each other, with patients and (or) their legal representatives, as well as documenting their actions during consultations, consultations, remote medical monitoring of the patient's health. The procedure for the provision of medical care using telemedicine technologies was approved by Order of the Ministry of Health of Russia dated November 30, 2017 N 965n. According to the specified procedure, for remote interaction of medical workers with each other or remote interaction of medical workers with patients, a medical organization, a medical worker of which provides medical care using telemedicine technologies, provides the necessary premises, communication facilities and equipment for consultations. In order to identify participants in remote interaction in the provision of medical care using telemedicine technologies, the Unified Identification and Authentication System is used. The provision of medical care using telemedicine technologies is carried out by medical workers, information about which is included in the Federal Register of Medical Workers. In this case, remote monitoring of the patient's health is prescribed by the attending physician after an in-person appointment (examination, consultation). Thus, in order to implement a project for the provision of medical services using telemedicine technologies, it is necessary to analyze in detail whether the requirements of the current legislation on the provision of such services are being observed.
Protection of personal data in IT and TMT sector
The development of IT and telecommunication technologies greatly facilitates the work of specialists in many fields and makes it easier to solve a number of everyday household issues. Telecommunications, media and technology (TMT), as well as IT technologies today occupy an increasing place in business and everyday life. However, carrying out the simplest operations requires deep knowledge of the legislation governing the procedure for working in these areas, as well as the rules for providing, receiving, processing, and protecting personal data. Ignorance of the procedure for working with personal data entails the risks of bringing the operator of personal data to administrative, civil and even criminal liability. Also, the person providing his personal data is obliged to accurately assess the possible legal consequences of such provision in order to avoid fraudulent actions and significant damage.
Our lawyers have an experience in data protection, including preparing companies’ policies on the protection of personal data, other documents in order to comply with Russian legislation on the protection of personal data, assessing the application of the General Data Protection Regulation of the European Union (GDPR), advising on all issues related to the application of legislation on the protection of personal data.
Protection of personal data in the Internet
Internet transactions and other activity (including the purchase of goods/services, filling out questionnaires, placing orders, simple online communication, etc.) is accompanied by the need for the user to enter information about himself, which can be attributed to personal data. Federal Law of July 27, 2006 N 152-FZ “On Personal Data” (hereinafter referred to as the Law on Personal Data) provides that personal data includes any information relating directly or indirectly to a specific individual (subject of personal data). So personal data include surname, name, patronymic, gender, date and place of birth, place of residence, place of work, education, marital status, as well as photographs of the subject of personal data and other information.
It is important to note that both the person providing personal data and the person to whom they are provided have certain legal risks. Thus, the subject of personal data must verify the good faith of the person to whom the information is provided. Whereas the person who collects and processes personal data actually acquires the status of a personal data operator, since by virtue of The Law On Personal Data, the processing of personal data means any action (operation) or a set of actions (operations) performed using automation tools or without using such tools with personal data, including collection, recording, systematization, accumulation, storage, clarification (update, change), extraction, use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data. At the same time, any processing of personal data is carried out with the consent of the subject of personal data.
Failure to obtain such consent entails the imposition of an administrative fine on citizens from 3000 to 5000 rubles; for officials – from 10,000 to 20,000 rubles; for legal entities – from 15,000 to 70,000 rubles (Article 13.11 of the Administrative Code of the Russian Federation).
At the same time, the illegal collection or dissemination of information about the private life of a person constituting his personal or family secret, without his consent, or the dissemination of this information in a public speech, publicly displayed work or the media is part of a crime. For such a violation, a fine of up to 200,000 rubles, or compulsory work for up to 360 hours, or corrective labor for up to 1 year, or forced labor for up to 2 years (with the deprivation of the right to hold certain positions for up to 3 years or without such), or arrest for up to 4 months, or imprisonment for up to 2 years (with deprivation of the right to hold certain positions for up to 3 years).
Thus, it is extremely important to comply with all legal requirements for the procedure for the protection and processing of personal data.
Personal data processing policies
By virtue of Art. 18.1 of the Law on Personal Data, the operator is obliged to take the measures necessary to fulfill the obligations provided for by the specified regulatory legal act. The operator independently determines the composition and list of appropriate measures.
One of the effective measures is the publication by the operator of documents defining the operator's policy regarding the processing of personal data, local acts on the processing of personal data, as well as local acts establishing procedures aimed at preventing and detecting violations of the legislation of the Russian Federation, eliminating the consequences of such violations.
In practice, in most cases, for legal entities-operators of personal data, the main document from the above is the policy regarding the processing and protection of personal data.
Currently, the official website of Federal Service for Supervision in the Sphere of Communications, IT and Media contains recommendations on the development of policies for the processing of personal data. It is recommended to include in them:
- general provisions containing the main terms and development goals;
- the purpose of collecting and processing personal data;
- legal basis for the processing of personal data (for example, federal laws, the charter of a legal entity, consent to the processing of personal data, etc.);
- volume and categories of processed personal data;
- categories of personal data subjects;
- procedure and conditions for their processing.
It is also recommended to include in this document the regulations for responding to requests/appeals of personal data subjects, authorized bodies regarding the inaccuracy of personal data, illegal processing, revocation of consent and access of the personal data subject to their data, as well as appropriate forms of requests/appeals.
Preparing of policies for the processing of personal data makes it possible for the operator of personal data to develop a uniform procedure for their processing, and also allows the subject of processing to familiarize himself in detail with all the conditions under which they are provided with personal data. In this regard, it is of particular importance to take into account in the personal data processing policy all legal aspects that allow protecting the interests of the operator of personal data and the subject of personal data.
General Data Protection Regulation (GDPR)
The General Data Protection Regulation of the European Union (GDPR) of May 25, 2018 was developed for the territory of the European Union, and also has a transnational character and, in fact, Russian personal data operators may also be subject to it.
The Regulation applies to the processing of personal data of data subjects located in the EU, as well as a controller or data processor not established in the EU, if the processing of data concerns: the provision of goods and services to data subjects in the EU, regardless of whether payment is required from said data subject, or monitoring their activities, provided that the activities are carried out in the EU.
Thus, the offer of goods, works, services in the EU, implying the processing of personal data, as well as the analysis of information about visitors to sites from the EU, in fact, are subject to the said regulation.
It is important to note that the said regulation explicitly provides for the possibility of obtaining consent to the processing of personal data by “ticking the boxes” on the operator's website.
Another feature of the GDPR is the assignment of personal data subjects the right to submit complaints to supervisory authorities. In fact, the document regulates in detail the procedure for processing personal data.
To accurately determine whether a legal entity is subject to this regulation, which has a cross-border effect, a legal analysis of the structure of the activities of one or another organization - the operator of personal data is required. At the same time, for violation of the requirements of the regulations, there is a fine of 20 million EUR, or up to 4% of the company's global annual turnover. It is the timely and correct determination of the rights and obligations of the operator of personal data that makes it possible to avoid checks and investigations by the supervisory authorities.
Legal support for media companies
Currently, the media space is not only a way of transmitting information to a huge number of people and through the sale of media products, but also represents a complex of actively developing legal relations of different levels, regulated at the legislative level, which led to the formation of a sub-branch of legal norms regulating the media market. Legal regulation of this area has its own specifics and requires special knowledge necessary to ensure the legal security of media companies.
Features of legal support for media companies
The sphere of media in a simplified form is a collection of means of communication with the consumer for the transfer of information. Currently, the theory uses concepts such as “mass media” and “direct media”. Mass media is a means of transmitting information to a large circle of people (these include all types of media). Direct media implies direct communication with the consumer (for example, distribution of advertising materials and other information via telephone, e-mail, etc.).
Any information disseminated through media resources requires careful study to verify its compliance with the requirements of current legislation. When analyzing information, a comprehensive assessment of compliance with: copyright protection requirements, anti-terrorism legislation and other norms, violation of which may become a crime, anti-corruption legislation, legislation on the protection of personal data, legislation on advertising (if the transmitted information contains advertising content), etc. In addition to the above, it is also important to assess the way information is presented, since some methods of transmitting information (for example, television broadcasting, radio broadcasting, printed publications) have their own characteristics and requirements necessary for compliance.
In addition to controlling the quality of content delivered to the audience, it is of particular importance to regulate legal relations with the authors of this or that content and other employees of the media company. It is important that in some cases, in case of copyright infringement, the claims of interested parties will be brought against the organization and not the direct infringer. To avoid negative consequences, organizations working in the media sphere should provide at the contractual level the procedure for resolving all possible conflict situations with authors, it is also recommended to develop and implement local legal acts that should guide employees in their activities, which will help unify the requirements for the procedure for solving both routine and non-standard tasks.
It should be noted that the above briefly summarizes the main features of supporting the activities of organizations operating in the media sphere. At the same time, in addition to the listed issues, there is a huge number of legal aspects required for accounting. For example, among other things, a special place in supporting the activities of companies in the field of media is occupied by legal support of media activities, the specifics of which will be described below.
Legal support of the media
According to the law on the mass media, a mass media (mass media) means a periodical print publication, a network publication, a TV channel, a radio channel, a TV program, a radio program, a video program, a newsreel program, or another form of periodic distribution of mass information under a permanent name (title). A feature of all mass media is the broadcasting of information for an unlimited number of people, which gives it special significance and importance of its correct presentation and content. In modern conditions, an increasing number of requirements are imposed on the media. In general, the legislation governing the operation of the media is subject to constant changes, and therefore it is extremely important to respond promptly to the changes introduced. Also, many aspects of media detail are subject to numerous checks by various control and supervisory bodies (for example, Federal Service for Supervision in the Sphere of Communications, Information Technology and Mass Media, the prosecutor's office, the Federal Antimonopoly Service, etc.).
In fact, legal support for the media includes various areas.
Even at the stage of planning the creation of a media, it is important to comply with all the requirements for registration with Federal Service for Supervision of Communications, Information Technology and Mass Media, as well as to determine the terms of partnership of co-founders of the media in order to avoid conflicts.
Quite widespread within the framework of media activities is the presentation of demands by interested parties to protect honor, dignity and business reputation, as well as to protect copyright. Legal analysis of the content of information planned for transmission / broadcast / publication will help to avoid these risks. Also, if, nevertheless, a conflict situation has arisen and corresponding claims are made against the media, it is important to quickly and comprehensively study the details of the case and develop an optimal position to protect the interests of the media. Often, the conflict can be resolved at the stage of negotiations, by attracting a lawyer to participate in them. This allows the media to significantly reduce both material and time costs.
Work with advertisers takes a special place in the activities of the media. In addition to considering the wishes of the client, it is necessary to carefully analyze the advertising content for compliance with advertising legislation. At the same time, it is important to consider the features of the advertised product, since some types of advertised goods / works / services are subject to special requirements (for example, advertising of drugs, dietary supplements, medical services, financial services, securities, participation in advertising of minors, etc.). Moreover, special requirements are imposed on advertising in print media, in television and radio programs, on vehicles, with the installation of advertising structures. In this regard, it is recommended that advertising materials be submitted to lawyers in advance for legal assessment with detailed information on the planned methods of advertising.
In addition, to improve the legal literacy of media workers, it is recommended to introduce appropriate local legal acts (policies, instructions, rules), which will allow the development of such work algorithms that will help to minimize legal risks.
Legal support of IT companies
With the development of information technology, the activity of specialized organizations specializing in the IT sector is increasing. At the same time, the current legislation provides for both general requirements for the activities of legal entities, which are necessary for compliance, and a fairly large number of specific features of the legal regulation of the IT sector. Lack of knowledge of all the nuances of doing business in the field of information technology can entail not only loss of profit, but also the occurrence of significant losses.
Features of legal support of IT companies
In fact, the activities of IT companies are characterized by the ability to implement projects anywhere in the world without limiting the availability of the created product. This requires the application of knowledge not only of national legislation, but also of international law and the law of other jurisdictions. At the same time, the application or non-application of certain legal norms depends on the actual activities of a particular organization, the type of IT-product being implemented, the planned concept of the company's development, taking into account state policy and established law enforcement practice.
Legal support of IT companies requires knowledge in various areas of legislation. For example, when creating an IT product, it is important to resolve issues with rights to the results of intellectual activity. At the same time, it is important to correctly build relationships with both the customer / contractor and directly with the developer, who may be in labor or civil law relations with the company.
Also, an equally important aspect in the activities of IT companies is compliance with the requirements for working on the Internet. In particular, when processing personal data, determining whether certain information disseminated on the Internet is a trade secret, whether there is a violation of the rights of third parties when working in the virtual space. Also no less important is the correct execution of transactions concluded remotely and making / accepting payments through the official website. The authorities pay special attention to the content of a particular site and the content of the transmitted information, which should not violate the rights of users, and in some cases comply with the requirements of advertising legislation, consumer protection, antimonopoly legislation, etc.
Another important aspect in the development of an IT business is the legal optimization of taxation with the choice of the most acceptable model of tax accounting and protection of the company’s interests in the tax authorities.
Any activity of a legal entity is not complete without the conclusion of contracts with counterparties. Contracts have their own specifics and differ significantly from the standardized types of contracts presented in the public domain in open sources. Licensing agreements, software distribution agreements, service provision agreements, including those concluded through a public offer and other types of agreements, require careful consideration with a balance of interests of the parties and the requirements of current legislation. Involving a lawyer to participate in negotiations at the stages of preparation, conclusion, amendment or termination of contracts allows you to optimally resolve emerging issues, minimize legal risks and prevent the emergence or development of conflict situations with counterparties.
Often, numerous inspections are carried out in relation to IT companies, which slow down their growth and development, since without the necessary preparation and development of the correct line of interaction with regulatory authorities, the risks of not always justified bringing organizations to justice are significantly increased, which can bring corresponding losses or require additional costs to litigation.
In this regard, most aspects of the activities of IT companies are subject to legal regulation and require legal support.
Business structuring of IT companies
The main feature of the work of IT companies is their rapid development and the creation of new products that require market introduction and promotion. Many IT startups have been developed precisely thanks to prompt and competent legal support.
Quite a significant number of issues related to the work of an organization in the field of information technology arise and are settled at the stage of the business plan. In particular, when opening a company, it is necessary to choose its organizational and legal form, field of activity, determine the procedure for distributing profits between the founders and the procedure for their interaction, appoint a person who will manage current activities, and determine the taxation system.
After opening an organization, it is important to determine the main directions of the organization's activities, recruit personnel and clearly define the conditions for interaction with employees both on an individual basis (for example, through the development of an employment or civil law contract) and in the process of developing a unified corporate policy. This allows avoiding a conflict of interests between employees and employers, employees and counterparties, to comply with the requirements of corporate ethics, anti-corruption legislation, and to fulfill obligations both directly to the company and to partners in a quality manner and in good faith.
When creating/selling IT products, it is necessary to secure the contractual obligations of the parties with a detailed settlement of potential conflict issues.
It is also equally important to determine the range of legal acts that will regulate the activities of one or another IT company, since some legal acts regulating the procedure for protecting personal data, as well as protecting against corruption factors, are international in nature and may in some cases extend their effect for Russian companies (for example, the US Foreign Corrupt Practices Act and the UK Bribery Act, the General Data Protection Regulation of the European Union and etc.).
In the framework of the activities of any organization, control and supervisory bodies can conduct both scheduled and unscheduled inspections. At the same time, it is important to assess the possible risks of such inspections and inform the company's employees in advance about the rules for interacting with inspectors, as well as to minimize the potential risks of organizing inspections and identifying violations by developing appropriate preventive measures.
Taking into account the multidimensional nature of the legal regulation of an IT company, the early construction of the structure of business processes will significantly minimize legal risks, make transparent procedures for interaction between partners and counterparties, predict the receipt of profit and outline the procedure for its distribution, optimize taxation, etc.
Legal support of telecommunication companies
With the development of telecommunications, more and more statutory requirements for the operation of telecommunications companies appear. Legal support for the activities of companies operating in telecommunication includes various aspects and important features, the knowledge and application of which in practice makes it possible to increase the efficiency of the organization and protect its interests both in interaction with customers and in legal relations with authorities.
Features of legal support for telecommunications companies
Telecommunication companies are organizations that offer mobile or landline telephone services, telegraph services, high-speed Internet access and cable television.
According to the law on communications on the territory of Russia, communications services are provided by communications operators to users of communications services on the basis of an agreement on the provision of communications services concluded in accordance with civil law and the rules for the provision of communications services.
The rules for the provision of communication services regulate the relationship between users and operators, the procedure for identifying users of communication services for transmitting data and providing access to the Internet, as well as the procedure and grounds for suspending the provision of communication services and terminating such an agreement for the provision of such services, the procedure for filing and considering complaints, user claims.
Currently, the Russian Government has approved various procedures for the provision of communication services, depending on the type of services. For example, the procedure for the provision of telephone services, the procedure for the provision of telematic communication services, the rules for the provision of communication services for data transmission, the rules for the provision of communication services for television broadcasting and (or) radio broadcasting, the procedure for the provision of telegraph services are currently in force.
These legal acts regulate the procedure for the interaction of the telecommunications company with the subscriber, the procedure for storing information about the subscriber and cases when the operator is obliged to transfer information to third parties, other rights and obligations.
Moreover, the requirements of the consumer protection law, which additionally protect the interests of customers, apply to the relations with customers of a telecommunications company who are provided services for personal household needs not related to their business activities.
A telecommunications company, when working with clients, acquires the status of a personal data operator and must process the received personal data in accordance with the established requirements. Failure to comply with all the necessary conditions in the contract can lead to claims from customers and to significant material losses for the organization working in the field of telecommunications. In this regard, when concluding contracts with customers, a telecommunications company must check the terms of the contract for compliance with legal requirements.
Also, the activities of any telecommunications company are associated with the conclusion of various types of contracts, including those related to the design, construction, maintenance of communication facilities, the provision of various types of services, the lease or sale of administrative buildings, and many others. other. When concluding certain contracts, it is necessary to comply not only with the general requirements for contracts, but also knowledge of the specifics of each contract and a competent approach to maintaining the balance of interests of the contracting parties.
The provision of communication services is inextricably linked with the development and implementation of new technologies, which requires knowledge and practice of applying legislation in the field of intellectual property rights protection. The occurrence of disputes and claims in this area can entail significant losses for the telecommunications company.
The telecommunications sector is characterized by a high level of competition, which requires special attention to the promotion of services with mandatory compliance with the requirements of advertising legislation. In addition, the law on advertising establishes special requirements for advertising that is distributed directly over telecommunication networks. Such advertising is allowed only with the prior consent of the subscriber or addressee to receive advertising. Thus, if a telecommunications company acts simultaneously as an advertiser, additional legal analysis of advertising materials and the procedure for their submission is required.
It follows from the foregoing that the activities of companies providing telecommunications services are associated with diverse legal aspects and require knowledge of both the general requirements of the legislation for the activities of commercial organizations and knowledge of the specialized legal norms governing telecommunications.
- Intellectual property protection in IT and TMT sectors
- Protection of personal data in IT and TMT sectors, including the development of company policies for the protection of personal data, assessment of compliance with legislation on the protection of personal data
- Legal support of IT companies
- Legal support for media companies
- Legal support of telecommunication companies
- Development and legal analysis of contracts for IT-sector, including software distribution, IT outsourcing, distribution agreements, contracts for the creation and maintenance of websites, licensing, franchising contracts and others
- Legal support of Internet projects (including IT projects in finance, legal support of IT projects in life science)
- Legal support of online stores
- Development and legal examination of contracts and agreements to protect confidential information and commercial secrets
- Protection of honor, dignity and business reputation
- Participation in disputes related to trademarks and domain names