Features of the institute of personal data as an element of the system of law

Zabarinskii Georgii Vladimirovich Postgraduate student of the Department of Theory and History of State and Law of St. Petersburg State University 199106, Russia, Federal city, Saint Petersburg, line 22-Ya V.O., 7 zabarinsky@ya.ru

It is generally believed that the starting point of the emergence of the concept of personal data was the publication in 1890 of an article written by American lawyers Samuel D. Warren and Louis D. Brandeis, where they, in the aspect of the study of the right to privacy, talk about "the right to be left alone." It is interesting that the authors themselves in their work refer to the earlier appearance of the "right to privacy", for example, in the French press Law of 1968, where a fine is imposed for spreading the fact about private life ^{[1, p. 214]}.

Revealing this right, the Americans explained its necessity by the rapid development of technologies of that time, which allowed the dissemination of photographs ("the law must provide some remedy for the unauthorized circulation of portraits of private persons") and rumors ("even gossip apparently harmless, when widely and persistently circulated, is potential for evil") in the materials printed publications without the knowledge and consent of the photographed or, accordingly, the object of rumors, which entailed "an invasion of the sacred limits of private and family life" ^{[1, p. 196]}.

As can be seen from the example of this landmark work for that time, researchers already at the end of the XIX century laid the foundation for future concepts of the sphere of "privacy": in the text of the study, the modern reader can "feel" the thoughts of the authors concerning the concepts of "biometric data", "personalized" and "impersonal" information that exist now, but were absent then about citizens and others. This becomes especially interesting in the context of "modern technologies", which American researchers write about. The problems identified by them appeared, among other things, due to mass printing technologies and globalization - information has become more accessible. And in our time, information has become even more accessible, but the problems have not changed: new technologies threaten the privacy of private life.

         Further global regulation followed the path based on the ideas of protecting the interests of the right to privacy, laid down in the XIX century. It was only in the 1970s of the last century that "privacy unexpectedly received a new dimension" ^[2]: the concept of "data" began to be actively legalized, and in 1981 the Convention on the Protection of Individuals with Automated Processing of Personal Data already at the international level enshrines the familiar concept of "personal data" ("personal data") ^[3].

For Russia, the most important point in regulating relations related to personal data is 2006, when the first edition of the Federal Law "On Personal Data" was published, the adoption of which was one of the measures aimed at ratifying the aforementioned Convention. Of course, until 2006, "personal data" was known to our legislation: the 1995 edition of the Federal Law "On Information, Informatization and Information Protection" contained the definition of "information about citizens (personal data)", but it was a special law of 2006 dedicated to personal data that laid the foundation for modern regulation.

It should be noted that in many ways the catch-up regulation can be explained by the peculiarities of the historical development of our state, which is still reflected in the activities of the legislator: many issues that the legal doctrine draws attention to are ignored. Among them there are those that are directly related to personal data: about the method of legal regulation of personal data ^[4], about personal data as an object of law ^[5], about the nature of consent to the processing of personal data ^[6], about the place of personal data in the legal system in general ^[7] and many others.

         It seems that a systematic analysis of the relevant institution will allow to bring some clarity to the problems of personal data, and its connection with general theoretical concepts of law as a system can reveal the imaginary nature of some contradictions, or vice versa, their confirmation.

A system-structural approach to the analysis of law. The system of Russian law, or the system of norms of Russian law, or simply the system of law (different authors propose different names for definitions of one phenomenon, therefore, in order not to go into unnecessary terminological discussions with well—known approaches, we will consider these concepts synonymous) is a theoretical and legal phenomenon that modern researchers associate with a certain hierarchy, in the sense of the subordinate relation of this specific concept to the generic one is the legal system. As Yu. A. Tikhomirov notes, "the concept of a legal system is one of the key ones for legal science ... it is created not for the sake of playing concepts and normative constructions, but for the purpose of embedding law into reality, defining the architecture of law, so that it acts as the most important tool of society and the state in solving urgent problems of existence and vital activity" ^[8].

Confirming this approach, V. N. Protasov notes that the legal system "includes all legal phenomena necessary for the process of legal regulation." Developing his thought, the author emphasizes that objective law "enters the legal system as an element along with others: legal relations, legal facts, legality, legal awareness, the system of legislation, etc." ^[9]. A.M. Mikhailov writes that "any developed legal system is an integral organism in which the system of law, legal practice and legal doctrine are closely interrelated, do not exist in isolation from each other" ^[10], and E. G. Lukyanova calls the legal system a normative element of the legal system ^[11].

At the same time, as M. E. Pankratova, N. Y. Rasheva, G. V. Ivashko and A. N. Leonov point out, one can find positions in the doctrine in which the legal system and the legal system are used as identical concepts ^{[12, 13]}. And, for example, V. S. Nersesyants generally pointed out the artificial nature of the concept of the legal system: "... the interpretation of the "legal system" as some kind of new legal concept covering all law (all legal phenomena and categories) essentially means the substitution of the general concept of law by some rather conditional (and largely random) phrase "the legal system"" ^{[14, p. 451]}.

Without going into the controversy regarding the conceptual apparatus, for the purposes of research, we will consider that it is more prudent to adhere to the concept that is shared by the majority of the modern scientific community. At the same time, we will express a cautious opinion about the ambiguous semantic difference between these concepts: in the same logic, it is possible to build a different understanding of the concepts of "legal science" and "science of law", "law enforcement system" and "system of law protection", "legal phenomenon" and "phenomenon of law", etc. However, the doctrine goes it is along the way of separating concepts that are similar in meaning: for example, A. F. Maly and S. O. Logunova, differentiating the concepts of "legal institute" and "institute of law" (for the purposes of this work, we will proceed from the synonymy of these concepts), even ask about the possibility of separating the concepts of "branch of law" and "legal branch" ^[15].

Thus, having accepted the concept of separation of the legal system and the legal system, it is necessary to determine the understanding of the latter. The concept of "system of law" is most often disclosed by legal scholars using a structural (system-structural) approach ^[16], expressed in the understanding of the legal system as a set of existing legal norms, united by institutions, sub-sectors and industries, in accordance with the peculiarities of the social relations regulated by them. They also note the existence of subinstitutions (we will call them subinstitutions in this work) that combine thematically norms within a specific institution of law, as well as the existence of other entities. To other, larger associations, E. G. Lukyanova refers the formation of elements of the legal system on other grounds, for example, on the material and procedural nature ^[11].

It is worth noting the difference between the system of law and the system of legislation, because in this work the conversation is about the system of law. For example, S. V. Boshno, separating these concepts, points to the mutual penetration of these concepts into each other: "the system of law is contained in the system of legislation, and legislation enshrines law" ^[17], and A.V. Polyakov, E. V. Timoshina write that the system of legislation and the system of law organize legal texts differently. As an example, the authors cite the sectoral division, noting that the branch of legislation unites legal texts in form, and the branch of law — in content ^[18].

Some researchers also draw attention to the need to distinguish between the legal system and the structure of the legal system, noting that the legal system should not be reduced only to its structure. Insisting on the differentiation of these concepts, A. N. Leonov writes that the legal system should be understood as "a set of norms of Russian law grouped by branches, sub-branches and institutions of law, and the structure of the legal system as a way of communication between branches, sub-branches and institutions of law, which is ensured by the internal organization of the norms of law on the basis of their consistency and unity" ^[13]. T. V. Kashanina also notes the confusion of these concepts, saying that in "legal science, the more common term is the term "system of law", and not "structure of law"" ^[19]. In this regard, D. E. Petrov correctly points out that the study of the legal system involves the study of its structure, therefore, a special emphasis on the structure of law may lead to excessive absolutization of this concept ^[20].While agreeing with the need to separate the system and its structure, we note nevertheless that there really may not always be a clear need for this.

Thus, exploring the concept of "system structure", L. N. Cherkasov came to the conclusion that it is permissible to use both a general and a narrower definition of the system, depending on the objectives of the study, understanding the general concept as a set of elements with one common connection (the author puts the meaning of a "thematic" combination of elements into a common connection), and a narrow as a set of elements with a common connection and address relations (the set of address relations is a structure for the author) ^[21]. If we extrapolate such an approach to understanding the legal system, then we will find a subjective aspect of the perception of the term by each author, which is justified in the absence of a single requirement for its use and the existence of many topics where researchers themselves place accents (we assume that all scientists roughly equally understand the definition of "system").

Having determined the basic concepts related to the legal system, we can proceed to the unification of the norms governing relations regarding personal data, and in order to identify the place of these norms in the legal system, let us turn to its structure.

Personal data in the legal system. The sectoral approach to structuring the legal system has been established in the domestic legal science for a long time, and has been adopted by the majority of the modern scientific community. As I. V. Stasyuk correctly notes, "in Soviet times, the sectoral division of law became fundamental, and it remains so to this day," noting that other ways of dividing the legal system have a complementary nature to the sectoral division ^{[22, p. 281]}. Within the framework of the sectoral approach, only the appearance of new structural elements and related issues remains debatable ^{[23, 24]}.

The largest legal community that gave the name to the corresponding systematization approach is the branch of law. Usually, among legal specialists, the branch is understood as a set of legal norms regulating a certain homogeneous sphere of public relations ^{[18, p. 357]}, and for distinguishing branches, the main criteria are a specific subject and method of legal regulation ^{[9, p. 84]}.

The next element is called the sub-branch of law, which is a smaller element than the branch of law, regulating public relations that are narrower in relation to the branch. Sub-sectors are inherent in large industries and consist of related legal institutions ^[25].

Further in the hierarchy of elements follows the institute of law, which on the one hand is a substantially smaller element than the branch and sub-branch of law, and on the other hand, as R. G. Valiev notes, arguing about the systematization of law, "the institutions of law as structural elements of law are primary forms of law-making regulatory integration in relation to the branches" ^[26]. And indeed, institutions, not counting sub-institutes (as we understand, a sub-institute in a systematic interpretation, obviously, cannot exist without an institute, as well as a sub-branch without an industry, therefore the role of the "primary" association in the legal system should be attributed to the institute), are the primary association of legal norms regulating related legal relations. It is thanks to the thematic unification of norms into institutions that it becomes possible to build the foundation of the hierarchical structure of law — from norms to branches.

It should be noted here that, for example, I. L. Bachilo, speaking about the concept of the information code and the hierarchy of norms of the information law branch, also singled out super institutions – enlarged entities, without which it is difficult to build the structure of the industry ^[27], and G. G. Kamalova suggests that the Institute of personal data in general is a sub-institute of the institute of restricted access information ^{[28, pp. 91-92]}. Such an author's systematization fits perfectly into the subjective idea of the researchers about systematicity noted earlier in this article, especially in cases when it comes to new elements of the system.

The institutions of law can be divided by types, based on the grounds of separation. E. A. Kerimova classifies legal institutions as follows ^{[29, pp. 132-133]}:

1. On a subject-industry basis, into industry and mixed;

2. According to the method of regulating public relations into material and procedural-procedural (the latter are divided into procedural and procedural);

3. In the sphere of legal regulation, general (varieties of which are definitively starting, general and general) and special legal institutions;

4. On the functional role in the legal regulation of public relations on constituent, regulatory and law enforcement (protective);

5. By its structure, it is divided into simple and complex legal institutions (complex, unlike simple ones, consist of two or more sub-institutions);

6. According to the form of legislative consolidation on those set out in the form of a separate normative act; institutions corresponding in form to the structural subdivision of the normative act; institutions that are part of the structural subdivision of the normative act; institutions that combine the norms of several structural subdivisions of normative acts; institutions whose norms are set out in several normative acts.

To clarify some concepts that are not widely used in the legal environment, let's delve into the dissertation of E. A. Kerimova. Thus, in it, "definitively-starting" institutions are understood as "fixing the initial principles, the basis of the mechanism of legal regulation of each specific branch of law", carriers of legal content. The author defines "general" institutions through a sign of belonging to all branches of law, such as the institution of deadlines, legal responsibility, and "general" as containing regulation applicable to all (or some) public relations. "Special" legal institutions regulate a certain type of public relations ^{[29, pp. 116-118]}.

"Constituent" institutions, according to E. A. Kerimova, are fundamental in relation to all other institutions: for example, the institute of privacy noted earlier in the "historical" part of this work. "Regulatory" institutions regulate public relations "recognized by the state as positive", that is, regulatory institutions are aimed at streamlining the existing social relations. "Protective" institutions are closely related to legal responsibility ^{[29, pp. 120-125]}.

The proposed classification of legal institutions can also be applied to the institute of personal data.

1. The Institute is mixed (intersectoral), since the norms of the institute are contained in various branches of law. For example, Chapter 14 of the Labor Code of the Russian Federation is devoted to the rules for the protection of personal data of an employee (labor law), and the norms of the Federal Law "On Personal Data" are aimed at all possible participants in data processing — not only the parties to labor relations (information law).

The intersectoral nature can be explained by the fact that information law, to which the institution under study is usually attributed, is a complex industry, which contains institutes of profiling (basic) and special industries ^{[30, pp. 45-46]}. Speaking about the peculiarities of information law, O. A. Gorodov notes that "complex industries borrow part of their norms from several profiling industries, have their own subject of regulation, but do not have a specific method" ^{[31, p. 31]}.

M. M. Agarkov also spoke about mixed legal institutions, putting into it the idea of the existence of institutions built not only "according to the type of social service, or according to personal-free" ^{[32, p. 55]}. Revealing this idea of the Soviet civilist V. N. Protasov speaks about the existence of combinations of public-law and private-law elements of institutions ^{[9, p. 88]}. At the same time, it can be noted that the institute of personal data "has pronounced features of public law" ^[33], which is difficult to argue with, given the special involvement of the state in the field of personal data protection.

Thus, the intersectoral nature of the institute makes it possible to identify another argument in favor of the possibility of applying the methods and types of regulation inherent in private law industries to the regulation of certain issues of personal data, which is an additional argument in the discussion around the attribution of personal data to objects of civil rights ^{[2, 4, 5]}.

2. The legal institution is both material and procedural at the same time, which is evident from the example of the norms on personal data processing: Article 5 of the Federal Law "On Personal Data" establishes the principles of personal data processing (material component), and, for example, Article 19 already speaks about the necessary measures to ensure the security of personal data during their processing (procedural aspect).

Note that most often you can see the division of institutions on this basis into material and procedural (without the introduction of procedural). In this logic, V. N. Kartashov identifies institutions depending on the predominant content of material or procedural legal regulations, which makes it possible, omitting the classification proposed by E. A. Kerimova, to attribute the institute of personal data to primarily material institutions ^{[34, p. 102]}.

3. In the sphere of legal regulation, the institute of personal data can be called special, since it regulates a special sphere of public relations related to personal data.

4. The functional role of the legal institution of personal data does not allow it to be unambiguously attributed to any one type. The regulatory nature of the institute is manifested in the fact that it regulates the relations between the relevant entities (the state, represented by the competent authorities, data processors, personal data subjects), and "protectiveness" is expressed in the relevant norms providing for liability for inappropriate work with personal data. In this sense, the institute of personal data consists of regulatory and protective subinstitutions, that is, it can be called "regulatory-protective".

5. The structure of the Institute of personal data is complex (complex), expressed in the presence of a certain number of subsystems within the institute — sub-institutes. These include, for example, the sub-institute of consent to the processing of personal data (interestingly, N. A. Dmitrik calls it an institute ^[6]), the sub-institute of responsibility for violation of the legislation on personal data, and others.

Since the conversation about the institutes of the Institute of personal Data is quite new for the scientific community, and the methodology for their allocation has not yet been worked out, it seems incorrect to reflect all the alleged associations within the institute under study in this paper.

6. The form of consolidation of the institute of personal data is disclosed through the reflection of the norms on personal data in various regulatory legal acts. As noted above, the norms of legislation on personal data are contained in labor legislation, as well as in administrative, civil, criminal and constitutional, in by-laws. Thus, the manifestation of the regulation of personal data in criminal and constitutional law is directly related to the right to privacy and other related secrets (in a broad sense, as we have already noted above, it is related to "privacy").

Conclusion. The proposed analysis of the institute of personal data allows us to come to a number of theoretical conclusions in the framework of the discussion on the place of information law and its institutions in the system of Russian law.

The intersectoral (mixed) nature of the institute of personal data determines the possibility of applying to certain aspects of regulation methods and types of legal regulation that are not peculiar only to public law. This can serve as an additional argument for the application of a dispositive (decentralized) method and a generally permissive type of regulation in the context of the theoretical possibility of attributing the relations that develop around personal data to civil law.

The Institute of Personal data, being part of a complex branch of information law, itself has a sign of complexity (complexity), which is expressed in the presence of subinstitutions (subinstitutions): consent to the processing of personal data, responsibility for violation of legislation on personal data and others.

Information law is a young industry, so the emergence of its new elements, their mutual relationship has yet to be explored. For example, the identification institute ^[35] and the Institute of genetic information turnover ^[36], which are promising and closely related to the institute of personal data, will need to be organically integrated into the system of the information law branch (not to mention thematic legislation).

Based on this, it is already possible to predict the questions that will arise before theoretical science. Firstly, the question of the relationship of promising (as, indeed, already existing) institutions with the institute of personal data: can they be its sub-institutes and vice versa, if the institute of personal data is a sub-institute, then what should the smaller legal communities be called? Secondly, if we are talking about the coherence and ordering of the elements of the legal system, is there a real applied need to build a rigid hierarchy of legal subsystems?

Looking ahead and answering the second question, let's say that it seems right in the medium term to allow different authors to adhere to personal preferences in this matter: a unified approach will either be found over time, or it will not be necessary at all.