Protection of personal data of a police officer from video recording and illegal distribution in the mass media in Russia

Adakhovskaya Svetlana Vladimirovna PhD in Law Associate Professor of the Department of Administrative Activity of Internal Affairs Bodies, Nizhny Novgorod Academy of the Ministry of Internal Affairs of Russia 603950, Russia, Nizhegorodskaya oblast', g. Nizhnii Novgorod, shosse Ankudinovskoe, 3 adahovskaya@mail.ru

Koblenkov Andrei Yur'evich Senior Lecturer of the Department of Fire Training, Nizhny Novgorod Academy of the Ministry of Internal Affairs of Russia 603950, Russia, Nizhegorodskaya oblast', g. Nizhnii Novorod, ul. Ankudinovskoe Shosse, 3 adahovskaya@mail.ru

The issues of professional communication of police officers with representatives of the mass media today are relevant and ambiguous due to the fact that they are carried out on the verge of a collision of the interests of representatives of the mass media on the free search for information and the interests of police officers to protect their personal data. The novelty of the study is due to the lack of historiography of the problem: the issues of (not)legality of videotaping of police officers were not initially considered, and later became the subject of consideration by the court.

Currently, the situation is relevant when individual media representatives want to receive comments from law enforcement officers on high-profile offenses. They try to provoke the police to rudeness, make attempts to violate the access regime in the buildings of the Department of Internal Affairs, show on video an officer of the Department of Internal Affairs uncertain, doubtful, not knowing the current legislation, unable to connect two words when answering a simple question and saying formulaic, memorized phrases: "I don't know anything, contact the management, there is no management on the spot, everyone is in a meeting." The main purpose of artificially provoked situations is to increase the rating of your TV channel, media site or account, once again to show the unprofessionalism and ignorance of police officers as representatives of the authorities. Attention is often focused on the appearance of a policeman, his facial expressions, uncertainty when conducting a dialogue with media representatives on camera.

Videos on the Internet demonstrate that police officers feel insecure when journalists contact them to provide comments, do not know the current legal norms, their duties, do not check identity documents and confirming credentials from media representatives ^[11].

Currently, analyzing the communication of police officers with media representatives, we can trace the victimization of the psychology of law enforcement officers, a priori sense of guilt, uncertainty in their actions in the current situation ^{[7, p. 8; 9, p. 46]}, ignorance of the legitimate possibilities of protecting their rights.

The main regulatory legal acts regulating the possibility of carrying out and publishing video recordings of police officers' actions while on duty are: The Constitution of the Russian Federation ^[1] and the principles of police activity regulated by Chapter 2 of the Federal Law of the Russian Federation No. 3-FZ of 7.02.2011 "On Police" ^{[2, art. 5,6,8]} (hereinafter – the law "On Police"): observance and respect for human and civil rights and freedoms, legality, openness and publicity of police activities.

The police provide information about their activities to the media upon official requests during press conferences, publication of reference and statistical materials and in other forms.

In 2018, an order of the Ministry of Internal Affairs of the Russian Federation was issued, ^[6] approving the list of officials of the divisions of the central office of the Ministry of Internal Affairs of the Russian Federation, educational, scientific, medical (including sanatorium-resort) organizations of the system of the Ministry of Internal Affairs of the Russian Federation, as well as other organizations and divisions created to perform tasks and exercise the powers assigned to the internal affairs bodies Authorized to present to the mass media (hereinafter referred to as the media) the official position of the Ministry of Internal Affairs of the Russian Federation.

The interest of the leadership of the Ministry of Internal Affairs of the Russian Federation in the legislative regulation of the process of interaction between police officers and media representatives, as well as individuals engaged in video recording, is confirmed by the development of a draft law on amendments to Part 4 of Article 30 of the law "On Police" ^[5] regarding the establishment of guarantees of legal protection of police officers. If these amendments are adopted, "insulting a police officer, including the dissemination of information about him in information and telecommunications networks, including on the Internet, of information expressing obvious disrespect for the internal affairs bodies of the Russian Federation, will entail liability provided for by the legislation of the Russian Federation."

Currently, Part 3 of Article 20.1 of the Code of Administrative Offences of the Russian Federation No. 195-FZ dated 30.12.2001 ^[3] establishes administrative responsibility for the dissemination in information and telecommunications networks, including the Internet, of information expressing in an indecent form that offends human dignity and public morality, obvious disrespect for society, the state, official state symbols of the Russian Federation, the Constitution of the Russian Federation or bodies exercising state power in the Russian Federation. The rule of law is uncertain from the point of view of the concepts of "indecent form", "disrespect for society" ^{[8, p. 93; 10, p. 28]}.

At the same time, the protection of the rights and personal data of police officers is regulated exclusively by civil law.

Part 4 of Article 29 of the Constitution of the Russian Federation enshrines the right of citizens to freely seek, receive, transmit, produce and disseminate information in any legal way, in this regard, the list of information constituting a state secret is determined by federal law. However, these theses are not absolute, do not forget the principle that a citizen's rights end where his duties begin. The declared freedom of video recording applies both to individuals without a special status and to representatives of the mass media ^{[1, Article 29]}.

Part 3 of Article 55 of the Constitution of the Russian Federation provides that human and civil rights and freedoms may be restricted by federal law only to the extent necessary in order to protect the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons, to ensure the defense of the country and the security of the state ^{[1, Article 55]}. In this regard, the issues of police communication with journalists, bloggers, persons engaged in video recording, regarding the restriction of their constitutional rights should be based solely on the provisions of legislation.

When addressing journalists, the police officer needs to determine on the basis of federal legislation whether it is possible to restrict the rights of persons engaged in video, photo, audio recording, and if possible, what are the grounds for restricting rights.

Article 8 of the Law "On the Police" stipulates that the activities of the police are open to the public to the extent that it does not contradict the requirements of the legislation of the Russian Federation on criminal proceedings, on proceedings in cases of administrative offenses, on operational investigative activities, on the protection of state and other secrets protected by law, and also does not violate the rights of citizens, public associations and organizations. This is the list of regulatory legal acts on the basis of which restrictions on the right to freely receive information in any legal way can be established. Solely on the basis of the provisions of the above-mentioned laws, police officers may restrict the rights of citizens established by Chapter 2 of the Constitution of the Russian Federation in terms of video filming.

Consider the concept of "media representative" and the legal status of a journalist. It is necessary to determine the algorithm of actions of police officers when communicating with journalists.

Based on the provisions of Article 2 of the Law of the Russian Federation No. 2124-1 dated December 27, 1991 "On Mass Media" ^[4], a journalist is a person engaged in editing, creating, collecting or preparing messages and materials for the editorial office of a registered mass media, associated with it by labor or other contractual relations or engaged in such activities on its behalf.

In accordance with Article 52 of the Law "On Mass Media", the professional status of a journalist applies to: staff members of editorial offices engaged in editing, creating, collecting or preparing messages and materials for large-circulation newspapers and other mass media whose products are distributed exclusively within one enterprise (association), organization, institution; authors who are not related to the editorial office of the mass media by labor or other contractual relations, but recognized by it by its freelance authors or correspondents, when they fulfill the instructions of the editorial office.

To prevent attempts to receive unprofessional, incompetent comments, the following algorithm of communication between police officers and media representatives is proposed:

1.           In accordance with the requirements of Article 5 of the Law "On Police", when a media representative addresses a police officer or when a police officer addresses a media representative (as well as any individual), a police officer is obliged to name his position, rank, surname, present an official ID at the request of a person, and then inform the reason and purpose of the appeal or carefully listen and take action.

2.           The law enforcement officer needs to check the identity documents and credentials of journalists who have contacted him for comment.

The importance and necessity of checking the identity documents and credentials of journalists are justified by paragraph 2 of Part 1 of Article 13 of the Law "On Police". This right of a police officer corresponds to (corresponds to) the duties of a media representative (paragraph 9, part 1, Article 49 of the Law on Mass Media) to present when carrying out professional activities on demand: for a staff correspondent - an editorial certificate, for a freelance correspondent – an editorial assignment, a freelance correspondent's certificate and an identity document.

A police officer needs to make sure that a media representative is in front of him, and record (write down the data of documents certifying authority and identity in the service book, take a picture of the documents presented on a mobile phone camera). After the police have recorded the information from the documents provided, communication with journalists continues in accordance with the current legislation: summoning persons specially authorized to comment, or explaining the right to make a written request to the Public relations and Media Interaction service of the Department of Internal Affairs. 

What identity documents can be checked by a freelance correspondent? These include: passport of a citizen of the Russian Federation; passport of a citizen of the USSR; passport of a citizen of the Russian Federation; temporary identity card of a citizen of the Russian Federation for the period of passport registration^[13].

3.           If the person carrying out the video filming does not have the above documents, according to the current legislation, he will not have the legal status of a media representative.

4.           If a media representative (if there is a legal status) applies to a police officer for comments, the police are not authorized to comment on the basis of the order of the Ministry of Internal Affairs of Russia dated 06/19/2018 No. 385 "On improving the interaction of units of the Ministry of Internal Affairs of the Russian Federation with the media" ^[6].

When communicating with journalists, it is necessary to know their duties under Article 49 of the law "On Mass Media", and be sure to focus attention in the comments of the police. A media representative is obliged to obtain consent (except in cases where it is necessary to protect public interests) to disseminate information about a citizen's personal life in the media from the citizen himself or his legal representatives; to verify the accuracy of the information provided by him; to satisfy the requests of the persons who provided the information to indicate its source, as well as authorization the quoted statement, if it is announced for the first time; to maintain the confidentiality of information and (or) its source; when receiving information from citizens and officials, to inform them about audio and video recordings, film and photography. Media representatives are subject to the provisions of the law "On Mass Media", their activities are open and public.

It is necessary to protect the violated rights of police officers on the basis of the law "On Mass Media" by publishing a refutation of previously disseminated false information and by filing a claim for compensation for moral damage for the dissemination of personal data to the court ^[12].

As a summary, we note those points that we consider necessary to fix in regulatory legal acts: 1. Oblige employees of the information and public relations units of the territorial OMVD to monitor videos on the Internet with the participation of police officers and bring information to their supervisors 2. Employees of the legal units of the OMVD are required to assist police officers in the field of legal protection (preparation of materials for the publication of a refutation or statement of claim in connection with the distribution of a record with the personal data of a police officer without his consent).  We consider it possible to consolidate these duties in the regulations on named units approved by the orders of the Minister of Internal Affairs of Russia and the official regulations of the executors.