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§ 4. Previsibility at injury in a network the Internet

One more uneasy question is application of criterion of previsibility to the obligations arising in a network the Internet. The Russian legislator does not allocate such category of obligations for special settlement that it is necessary to consider as a domestic law lack.

The relations arising in a network the Internet, differ variety of essential features and require the special approach. S.V.Bahin, one of leading experts in the given sphere, writes: « In process of development NTP its influence on MCHP all becomes deeper also the versatile. Therefore there is an imperative need in working out of theoretical and applied questions of influence of a science and technics on formation and functioning of norms and institutes MCHP »[220]. Would not be exaggeration to speak about necessity of introduction of the separate chapter in VI section GK the Russian Federation in which conflict rules for various types of the relations arising in a network would be fixed, from veshchno-legal (electronic securities, kriptovaljuta, the rights to the data containing in cloudy storehouses) to the hereditary. What right should be applied at inheritance of accounts in social networks — a question not idle, some of them are equated to mass-media, and some allow to receive rather essential incomes.

The main complexity of choice of law express choice for such relations — localisation that is necessary for use of traditional connecting factors (i.e. an objective basis of conflict regulation which buet to be designated further as localisation). Possibility in this case is meant localisation to define territorial communication of the relation with this or that jurisdiction. delokalizujushchee influence of a network the Internet does not give possibility to the full to use a conflict method (and without dependence from obsolescence of those or other bindings) as a conflict method as that is constructed on necessity of revealing of territorial communication of legal relation with this or that jurisdiction.

It is possible to argue with this statement, having specified in possibility of an establishment of personal communication of subjects of legal relations with jurisdiction of this or that state without necessity of territorial localisation, but here there is a second problem: anonimizatsija the subjects using a world wide web. Many researchers say about this problem and various ways of its decision that sees a little utopian, as possibility to act in relations, not informing on itself true data, is one of the advantages given by a global network, and refusal of this advantage can be hardly effectively fixed the legislator. A.K.Zharova writes, that «the individualization of the person in the Network is possible or in case the person informs data corresponding to the validity on, or by means of Internet technologies which define a national zone of a network the Internet» [221]. The first way as already it was specified above, sins with excessive optimism, and in the second it is rather inconvenient to combine legal necessity and danger of infringement of norms about protection of personal data [222] (as their processing without the written approval of the person is inadmissible, and in this case it will be necessary to establish such data for the purposes applicable law definition in the future). Necessity of localisation for application of conflict regulation hardly is among questions of national safety and justifies deanonimizatsiju, let even at level of the country of the location of the user.

Besides, not for all problems resolved MCHP, there is enough definition of the country of a finding of the subject. In a question of revealing of concrete competent national court (that is for the decision of a question on internal, national jurisdiction when more expressed territorial binding is necessary) it hardly will be the effective decision of a problem. Certainly, at conducting some serious business activity at use of a network the Internet anonymity is inadmissible, counterparts if are not familiar with each other establish multistage check of the person, allowing to be convinced of reliability and a national identity of the potential participant of relations. But in the given research us questions of non-contractual obligations, in particular, injuries where just anonymity meets more often interest.

As to questions delokalizatsii a number of the concepts is at present developed, allowing to overcome negative effects of the given phenomenon for MCHP. There is a division into various types of relations, for example, the active

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And passive connections, the relations which are leaving and not beyond a network [223 [224].

For localisation it is necessary to allocate a so-called orientation of relations [225]. To begin with it is necessary to differentiate active and passive connections. At active connections one user purposefully addresses the information to a certain circle of persons. And accident or namerennost definitions of such circle is not of great importance. At intended definition all contacts available for the named user are usually used, at casual — there is a sample of any group of contacts. And features existing randomajzerov (programs or platforms for carrying out of casual sample) are that, that it is impossible to set parametres — to reveal casual addresses from all in the world e-mail ' ov. Further there is an active dispatch by means of e-mail or, taking into account the developed technologies, means messendzherov (programs for an exchange of electronic messages). Thus, messages are aimed at some concrete circle of addressees. The orientation of relations, even casual, in this case closely intertwines with previsibility questions. At the given stage it is possible to consider as an intermediate conclusion that at active contact the user cannot approve that he did not expect message receipt to the concrete addressee and, that in this case for us is more important, in a concrete geographical point. Here it is necessary to understand, however, that actually the message can be accepted the addressee practically in any place, but for a starting point it is possible to accept that the user, addressing the message, all the same meant certain known to it in a binding to the addressee a space point.

As to passive contacts, in this case it is a question a certain placing of the information, any character, on a site on the Internet, on page in a social network, in the form of a banner placed, for example, in the search car. Access to this information potentially is received by any user of a network, that, taking into account the world distribution of the Internet, apparently, excludes any assumptions of an information orientation. It would be possible to consider, that the person placing the information in a network thus, should expect information hit in any point of globe. That is the person on itself a beret is a question of risks, which, spreading the information on world-wide accessible resource.

As a whole, it is supposed, that taking into account a general computerisation and mass distribution of a network the Internet it is necessary to start with, at least, potential presence of a foreign element at any contacts to use of the mentioned network, and also from potential possibility of approach of harm in territory of any state if persons living in it use an easy approach in a network (as examples of exceptions it is possible to name China and the North Korea).

There is also one more point of view, besides general previsibility of communication with any jurisdiction: previsibility and an information orientation can concern group of the countries, depending on the language selected the user, availability of a site from territory of this or that state (read — whether in the direct way the dissatisfied party has got access to the materials which have harmed), necessities to confirm the national identity / territorial at an input on a site. For example, in a corresponding window it is possible to choose only one of the countries of the closed list that should mean, that the persons who have developed, administering and-or using a site assumed possibility of application of the right of any country, therefore have meaningly limited their list and if the user has specified the data mismatching the validity, it operated unfairly. In such situation the court should accept arguments of the manager of a site about impossibility of application of the right of the country of actual approach of harm as he has honesty established the closed list of the countries to limit potential territorial communications of legal relations. One more example: if the information harming to business reputation, is placed in the Chinese language it will be easy to prove, that the author could not expect approach of negative consequences to territories of the countries of others, rather than in what the population most part understands the hieroglyphic letter.

Thus, it is possible to conclude, what even at passive contacts the person, it is intended or neosoznanno creates an information orientation, choosing the publication language, the certain domain of the first level (.m.com), assuming, that it can be inaccessible from the separate countries, setting necessity of acknowledgement of the country of access, especially from the closed list, and many other things in the ways. It creates some restrictions, unlike a situation at which it is necessary to expect possible communication with any jurisdiction at the expense of any type of a foreign element.

Proceeding from the above-stated, it is possible to draw a conclusion that there are ways of partial or full localisation, and criterion of previsibility, including, it is necessary to relieve the party in relations of application of such right, with which the user could not expect communication taking into account the efforts undertaken by it. Thus, questions pravoprimenenija will not dare in a random way and to depend, for example, on a place of opening of the message the addressee or arrangements of the device which it thus uses.

Also for localisation and the decision of questions on previsibility classification of relations on leaving and not beyond networks matters. If to give an example from area of contractual relations, the relation which is beyond a network — the goods order in Internet shop. The order is carried out through system of electronic messages, the concrete place of delivery of the goods which, from the point of view of the decision of a conflict problem, serves both the localisation factor, and a substantiation of however is taken that the seller absolutely precisely expected, where it delivers the goods, and the buyer knew, the goods are ordered in which seller. Besides, the majority of Internet shops has territorial restrictions on delivery that reminds idea of previsibility at passive connections with the limited territorial access. The same shops in which the delivery territory is not limited, usually more show consideration for questions of an applicable law and a choice of court of competent jurisdiction. For example, the known platform of sales AliExpress in instructions for use on which application each buyer should agree, specifies as the competent law and order the right of Hong Kong [226].

The relations which are not beyond a network, assume, that all process proceeds in space of the Internet or with transition to the computer of the user, but that the result of electronic data exchange arises in a material world in the substantiated kind. In particular, as an example of it granting of paid access to electronic library can serve. In this case the complexities arising in connection with localisation are obvious, and legislators of some countries start various bindings of low degree of efficiency and adequacy, for example, a place a server finding on which the information [227] is stored. The illogicality of such binding is caused, first, by technical features of storage of the information with which account it is stored on the several servers, broken not on logically-informative, and on electronic parts, secondly that there can be a phenomenon of a so-called Internet offshore [228]. It is a question of server placing on state territory with the extremely unprofitable for the consumer or completely absent regulation of Internet relations. Though at such binding fastening of criterion of previsibility is not required, it as though is meant: it is reasonable to expect, that at server placing in territory of this or that state to relations the right of this state will be applied.

For non-contractual relations it is extremely difficult to carry out accurate classification on the relations which are leaving and not beyond a network. Especially for those cases when the relation arises in connection with injury. Consequences of harmful actions, such, for example, as placing of the information discrediting honour, advantage, business reputation, creation of the videoclips influencing sight or mental health, always are shown outside in a definable place (not connected with a place of placing of a server) with which account it is possible to localise the relation and to define an applicable law.

That is in a case with injury localisation becomes simpler, as we deal with the relations which are beyond of a network, at least, from the point of view of a place of approach of harm. But in that case there is opened a previsibility question. L.B.Zabelova writes, that actually distribution of communication media and the transport message, including the Internet, has led to separation of a place of causing and a place of approach of harm: « Development of modern technologies..., in particular the Internet, leads to frequent occurrence of situations when the place of fulfilment of action does not coincide with a place of approach of the harmful result caused by this action »[229]. It is difficult to disagree With it. However not all national legislators consider it at modification of conflict regulation, specifying on possibility of application of the right of a place of approach of consequences. And, unfortunately, not all legislators allocate the obligations arising with use of a network the Internet in separate group. Even developers of Regulations Rome II did not allocate the relations connected with injury in a network the Internet in a separate kind of non-contractual obligations for an establishment of the special connecting factor.

It followed make at least regarding activity of mass-media in a network the Internet. Such neuregulirovannost it is dangerous not only to usual consumers and the persons who have sustained harm, caused to mass-media in a network, but also for mass-media, actual or potential trespassers. The explanatory note to Regulations Rome II specifies, that predictability and possibility to expect the right, applicable to the relation are extremely important for mass-media [230]. In such situation under any conditions it is impossible to suppose boundless previsibility, that is potential possibility of application of the right of any country in connection with general availability of a network the Internet. That in Regulations Rome and the harmed means of the publication in a network the Internet possibility to object to an applicable law is not given II trespassers who are mass-media referring to that they did not expect and could not expect communication with jurisdiction of a place of approach of harm, extremely negatively affects their position. Actually it will lead to that concerning the same material published by the same persons, legal regimes practically all countries of the world will be potentially applicable that subjects to risk freedom of journalistic activity and a freedom of speech [231].

There are, however, countries in which the legislator at codification of norms MCHP has allocated regulation of the relations connected with a network the Internet, in separate specialised norm. As an example we will result the formulation of item 35 of Code MCHP of Turkey: «the Claims following from infringement of individual rights by mass media, such as... The Internet... Come under to the regulation, selected the affected party:) the law of a place of usual residing of the affected party if the party which has caused a damage, assumed, that the damage will come in this country... The country law in which the damage has been caused, if the party which has caused a damage, could assume, that the damage will come in this country» [232] [is allocated by the author].

The Turkish legislator, thus, directly limits possibility of application of the right of the country which do not have territorial communication with the trespasser, ability of the last to expect potential approach of harm to territories of such country.

Besides traditional — about distribution of the onus of proving, such formula causes two basic questions: how much narrowly it is necessary to understand a word-combination «in this country» and how to prove possibility or impossibility to expect approach of harm taking into account that the Internet — a worldnet accessible from the majority of the countries of the world. Concerning the first of the put questions it is necessary to explain: whether it is necessary to prove previsibility of approach of harm, for example, in Australia, or in any country in general, including in Australia, and it returns us to the second question. Above various ways of an establishment of possibility of a prediction to some reliability were already mentioned: language tests, various territorial restrictions of access to a site, idea of general previsibility — that potential comprehension, that the information is accessible in any state.

There is a set of other points of view on the specified problem. For example, in

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To the doctrine the concept of "a general foreign element» is mentioned: «if in Internet legal relation there is no" general foreign element "a question on an applicable law to be put dispute from such legal relation should not also should be resolved by the right of the court country» [233 [234]. It is necessary to explain, that the general foreign element is understood as the foreign subject. A concept essence in to bringing up an applicable law question in the event that both subjects of legal relation belong to one jurisdiction. The purpose of the legislator in this case — elimination of that it would be possible to consider as false collisions.

Restriction of the list of kinds of a foreign element by only subject structure meets, in particular, in conventions for exact definition of sphere of application. For example, in the Viennese convention of 1980 on contracts of the international purchase and sale of the goods as application conditions the finding of the commercial enterprises of the parties is underlined territories of the different countries (article 1 [235]). Still such understanding of a foreign element was characteristic for previous edition of the Russian law «About the international commercial arbitration» [236] where also for definition of the competence of arbitration on the permission of commercial dispute as unique criterion of transboundary character of dispute the subject of relations (including in the form of presence of foreign investments) was specified.

In modern conflict regulation the tendency to that in a considerable quantity of kinds of relations to apply the right which is general for the parties, domitsilirovannyh or otherwise (for example, citizenship) legally connected with territory of the same state is appreciable. The concept of "a general foreign element» quite keeps within such tendency.

However it is possible to speak about excessive simplification at attempt to eliminate a conflict problem thus. It would be possible even to see in it display of the imperialistic approach: the state aspires to settle the national law of the relation between the subjects having the steady legal bond with this state (citizenship, citizenship, domitsily), without dependence from that, with territory of what country are actually connected these relations. Besides, with reference to the relations arising in a network the Internet, such approach can lead to use of the inefficient regulation which applications of the party aspired to avoid, lokalizuja relations in other jurisdiction. It is no secret, that effective Internet regulation is present at very small number of the states. Besides, proceeding from idea of restriction of a foreign element only the subject, the legislator will deprive of the party of the right to a will autonomy in all other cases, that besides returns us to already mentioned failure of attempt to avoid inefficient regulation of the relations arising in a network the Internet.

As to previsibility at such perception of a general foreign element, on the one hand if both participants have the legal bond with one state there is no necessity to establish criterion of previsibility as each of them obosnovanno expects application of the right of the country of court. However, first, not absolutely clearly, how to arrive when subjects all the same concern different jurisdictions. Potentially to expect application of any right? Secondly, not always it is possible to reveal with reliability, this or that participant of relations concerns what jurisdiction. In a network at use of certain resources the user can carry itself to any jurisdiction, check will not be carried out. If in the casual or intended image the chosen jurisdiction mismatching the validity, coincides at two users who are the parties of the obligations relation, whether it is necessary to apply the right of the country of court, in which one of them has addressed for protection of the broken rights, motivating it both subjects attributirujut themselves to one jurisdiction and should expect application of the right of the country of court?

Besides, the concept of the foreign subject widely enough also can be interpreted ambiguously. Not clearly, how to define, whether this or that subject is foreign. Probably, if the legislator nevertheless tends to idea of use of a general foreign element for simplification of regulation of Internet relations, it should supplement the formulation with special definition of the foreign subject with reference to the relations arising in a network. Or followed apply other formula: for example, if prichinitel harm knew or should know about coincidence of a nationality of the trespasser and the victim their general law is applied, in all other cases the right of a place of approach of harm if it does not prove is applied, that under the circumstances could not expect harm approach in such country. Under last condition the right of a place of fulfilment of the action which has entailed harm is applied.

Application of the right of the country of court as offers A.S.Maltsev [237], in our opinion, not to the full meets the requirements of a turn. After all can the court other, jurisdiction rather than coinciding for the parties is chosen. Criteria of jurisdiction are not always connected with citizenship or the place of residence. Then prichinitel harm it is put in dependence on actions of the victim and on a court choice on the various bases. Here just questions of previsibility also leave on the foreground.

It is necessary to tell, however, that the offered formulation does not solve an injury problem at the relations which are not beyond a network. Here still it is possible to speak about special type of relations: they are beyond a network only partially, not assuming the substantiated result in full sense of this word. For example, as in a case with intended infection of the computer with a virus. On the one hand, materializatsii (creations of the substantiated result) electronic contacts as that does not occur, the same as and in a case with access to electronic library. It is formally possible to download the book on any device, but it remains in electronic form. It is possible and unpack, but it is artificial will complicate our reasonings, after all the legislator will not consider a stamp place as a territorial binding as the press is in a considered situation extremely an unusual occurrence. As to a virus either the espionage program, or any other harmful software he formally also does not create the substantiated result, taking places on the computer of the user. But the harm put to data and programs, containing on the concrete device, is quite material, up to  destruction of a hard disk without restoration possibility. Thus, in a case with a virus we deal with an intermediate kind of relations. Whether it is necessary to speak in this case about criterion of localisation and to enter the terminator in the form of previsibility? Localisation is quite concrete — the location of the damaged device. However it only at first sight as the device can be portable. In this case follows, more likely to start with a binding on the subject as harm is caused the equipment ustanovimogo persons.

As to previsibility in this case the standard language tests mentioned above, and also territorial restriction of access on a site or necessity confirm an origin hardly can to be applied in the described type of relations. Virus programs usually take places on popular sites or fajloobmennikah, under such circumstances the name of a file with a virus can be in any language, for downloading it has no value more often. If for such cases and to fix criterion of previsibility, it is possible to keep the formula offered above [238] and onus of proving considering putting on on prichinitelja of harm, but thus it is necessary to understand, that proving of unexpectedness of this or that arisen territorial communication in the described situation is practically utopian.

Speaking about the relations which are not beyond a network, it is difficult to pick up an example of the activity connected with injury, but not having the materialised result in the real world. Speech can go unless about various harmful actions with accounting records of the person in social networks or on the game resources which consequences are shown only at level of a network in the form of blocking, reduction of number of subscribers, change of game conditions. In that case it is possible to speak about causing of moral harm. Taking into account psychology of the modern average person, such consequences can be really rather considerable. However from the point of view of applicable law definition in this case there is a sense to refuse sending to traditional financially-legal state regulation and to resolve situations such by means of the flexible regulation provided by professional participants of Internet community. It is a question of the concept so-called lex electronica by analogy with lex mercatoria. The given concept is not a subject of consideration of the present research, therefore we will not stop on it more in detail.

But it is possible to suggest to make to conflict regulation of change in the following formulation: if injury has occurred strictly within the limits of a network the Internet and has no substantiated consequences, to relations between the trespasser and the victim the corresponding rules developed by managers of a resource with which injury is connected if only prichinitel harm will not prove that could not expect application of such rules or for it are applied there was no reasonable opportunity with them to familiarise. At deliberate injury that application of the specified rules was predvideno prichinitelem harm, is incontestable prezjumiruetsja. The given positions do not mention any norms establishing responsibility of the manager of a network resource.

Responsibility of the manager of a network resource is defined by the right of a place of registration of a resource.

Having mentioned the concept of own internal Internet regulation, it is necessary to explain, that for the legislator the assumption similar is possible only in the event that it uses the corresponding approach to the Internet phenomenon that the Internet is not unequivocal taking into account an existing variety of perceptions of a network, including, from the legal point of view. For specification of possibility of use of own intranetwork regulation and application of criterion of previsibility it is necessary to consider the cores from them.

The modern writers writing about the Internet, the problems connected with regulation of Internet relations, delokalizatsiju and the other similar phenomena, adhere to the extremely various points of view. The Internet is perceived as the network organisation [239], a cyberspace [240], separate jurisdiction [241], a communication facility [242], the information system [243], the complicated form of relations [244]. As it is already told above, the approach to regulation of Internet relations, including, and from the point of view of MCHP, in essential degree depends on a corresponding estimation of such relations.

If to perceive the Internet simply as the special complicated form of relations, that is by the nature the same relations, but carried out in other, more progressive way there is no necessity to create special regulation, it is necessary to adapt only available legal forms for features of a new way of realisation of transactions and

Injuries. The same will concern also regulations within the limits of the decision of a conflict problem, for example, for the Russian legislator, probably, use of article 1219 GK the Russian Federation combining not the advanced bindings — lex loci delicti commissi and lex loci damni seems pertinent. Though specified article also contains criterion of previsibility, but in it there are no instructions on distribution of the onus of proving and, moreover, the formulation «expected or should expect» see excessively rigid for the relations arising in a network the Internet. More logically and conveniently for application the modality «would look could expect» though it, probably, and not absolutely corresponds to the conflict formula approaching for the general tort.

Similarly critically it is necessary to estimate and perception of the Internet only as communication facility or exclusively information system., As a whole, it is possible to consider these two approaches as versions of idea of Internet relations as simply one of those forms. For the sake of justice it is necessary to notice, that any of scientists to which we here refer, does not limit the point of view only to one of sides of the characteristic of the Internet, speaking about integrated approach and complexity of the given phenomenon. Thus, it is possible to draw a conclusion, that the Russian regulation requires addition with special rules for the Internet relations complicated by a foreign element.

One more idea — consideration of the Internet as a cyberspace also will not promote legal regulation perfection in the specified sphere. Those authors whom cyberspace concepts tend specify in inexpediency of attempts of settlement of activity of users of a network. As the cyberspace is not physical, but virtual space, creation of a separate legal regime is represented unnecessary and malodostizhimym [245]. The idea of a cyberspace in something is close to the communicative theory of the Internet (Internet communication facility). But this approach sins with some limitation. Moreover, in something it shows weakness of the legislator: it will not turn out to settle, even we will not try. Such point of view can lead to original Internet anarchy when each owner of a site will establish own rules, not soglasujushchiesja with any legislative regulation.

With reference to a conflict problem it will lead practically impossible in the nature of a negative collision when any state does not apply for settlement of relations as conflict rules cannot be properly applied in connection with delokalizatsiej, impossibility to establish appropriate connection with the law and order. Application in all such cases of the right of the country of court will not solve a problem and will lead to possibility of unlimited misuse of right by the claimant who, choosing a place of giving of the claim defines simultaneously with it such applicable law, to which the second party did not count on submission and should not count, legally operating in the jurisdiction. If and to start with the idea lex fori or lex loci protectionis, it is necessary to limit application of such bindings all to the same criterion of previsibility: At injury in a network the Internet is applied the right of that country in which protection if only other party does not prove is asked that did not expect and could not expect application of such right and its application is for such party unfair.

The points of view meaning perception of the Internet as, for example, network organisation are more interesting. One of the Russian scientists, adhering to the given theory, P.Krasnov, has correlated classical representations about the network organisations with perception of the Internet: «the essence of the network organisations is very simple - absence of uniform operating body and plurality of control centres. There can be consulting councils of heads of cells or any time coordination structures. By a network principle the Internet» [246] is constructed. If to perceive the Internet as the network organisation for any network organisation two levels of regulation — state and corporate are characteristic.

Speaking about network structure of the Internet, it is possible to divide users into two classes — professional community, that is, quoting P.Krasnov, control centres, co-ordinators of cells and the other persons who are carrying out the general control of activity in a network within the limits of sites and platforms; and also the simple clients addressing to services, a given first class of persons, for example, registered in social networks or using game servers. Then it would be possible to speak about a certain level of self-regulation in the frameworks established by the state. It is necessary to fix legislatively a number of interdictions and a regulation direction, and the rest to leave to the discretion of corporate structures. Then necessity for conflict regulation for full sense of this word will disappear, if professional managers develop own rules of activity and mechanisms of the resolution of disputes (many and arrive, in payment system PayPal even there is a format of enforcement of decisions of the commission on consideration of disputes in a kind bezaktseptnogo write-offs of means from an electronic purse).

Those managers of sites and systems who have developed qualitative rules, should warn only users about their application as so occurs at application of mechanisms of type click-wrap agreement253. In this sphere soft unification with acceptance of typical agreements and regulations for various kinds of Internet activity is quite applicable. Thus there will be an actual formation lex electronica.

But it is necessary for legislator to provide cases when it is not enough such regulation or the user has not been warned about its presence. It would be possible to offer the following formulation: at injury in a network the Internet the rules established by administration of that resource by means of which harm has been caused are used. At insufficiency such [247] rules, at their contradiction to the public policy of the country of court or provided that the victim will prove, that he did not expect application of such rules in view of absence of the appropriate prevention, the right of the country of court is applied.

Last approach — the relation to the Internet as to separate special jurisdiction — represents radical enough point of view. If to start with it, and also from the conventional idea jurisdiktsionnogo the sovereignty, it is necessary to declare independence of the Internet of any state regulation, about application only nadnatsionalnyh, or international, tools of regulation, necessity of creation of the uniform international operating organisation. Certainly, in this case it will be possible to insist on necessity of application exclusively lex electronica to arising relations. However in this case it is observed two essential defects — obvious insufficiency lex electronica for settlement of some relations, especially in what influence of a public component is strong: injury, weakness protection; and the vital issue second rather comes to light at idea correlation lex electronica with lex mercatoria: That qualitatively regulates relations between professional participants, not always approaches for regulation of relations with participation of the consumer and allows professionals to impose the will to usual users who not always can expect possible application of special regulation in case of causing of moral or material harm by it.

Bringing the general result, it is possible to conclude, that the relations arising in a network the Internet, including, connected with injury, differ a considerable originality and the conflict problem generated with reference to them cannot be solved traditional means. Working out of special conflict rules and introduction in them of criterion of previsibility as in connection with universal character of the Internet potentially probably application of any right and occurrence of territorial or subject communication with any jurisdiction, it is necessary to protect prichinitelja harm is necessary

From misuse of right and a manipulation jurisdiction from the dissatisfied party.

Besides, the Russian legislator can to recommend reflect on necessity of allocation in GK the Russian Federation in the section devoted MCHP, injury in a network the Internet in a separate category of non-contractual obligations with fastening of corresponding conflict regulation taking into account criterion of previsibility. One of resulted above formulations could be thus used:

1. If prichinitel harm knew or should know about coincidence of a nationality of the trespasser and the victim their general law if did not know the right of a place of approach of harm if it does not prove is applied, that under the circumstances could not expect harm approach in such country. Under last condition the right of a place of fulfilment of the action which has entailed harm is applied.

2. At injury in a network the Internet is applied the right of that country in which protection if only other party does not prove is asked that did not expect and could not expect application of such right and its application is for such party unfair.

3. At injury in a network the Internet the rules established by administration of that resource by means of which harm has been caused are used. At insufficiency of such rules, at their contradiction to the public policy or provided that the victim will prove, that he did not expect application of such rules in view of absence of the appropriate prevention, the right of the country of court is applied.

4. If injury has occurred strictly within the limits of a network the Internet and has no substantiated consequences, to relations between the trespasser and the victim the corresponding rules developed by managers of a resource with which injury is connected if only prichinitel harm will not prove that could not expect application of such rules or for it are applied there was no reasonable opportunity with them to familiarise. At deliberate injury that application of the specified rules was predvideno prichinitelem harm, is incontestable prezjumiruetsja. The given positions do not mention any norms establishing responsibility of the manager of a network resource.

Responsibility of the manager of a network resource is defined by the right of a place of registration of a resource.

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A source: Abrosimov Ekaterina Andreevna. FINANCIALLY-PRAVOVOI And KOLLIZIONNYIASPEKTY CRITERION of PREVISIBILITY In the RIGHT of Russia And FOREIGN COUNTRIES. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2018

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  3. § 1. Ways of use of means of an individualization in a network the Internet
  4. the mechanism kriminogennogo influences of an information field of a network the Internet on minors
  5. § 3. The Contract of purchase in a network the Internet
  6. § 5. Legal problems of protection of company names in a network the Internet
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  9. use of resources of a network the Internet for formation key educational kompetentsy senior pupils
  10. § 2. Konstitutsionno-legal bases of realisation of a freedom of speech in a network the Internet: three levels of regulation
  11. the Specially-Kriminologichesky prevention kriminogennogo influences of an information field of a network the Internet on minors
  12. § 3. Protection sredstvindividualizatsii (as, those) from »wrongful to uses of a network the Internet
  13. 2.2.1 Features of a legal regime of the information systems maintained with use of a network "Internet"
  14. § 4. A new direction of international legal protection of the adjacent rights: legal problems of an announcement in a network the Internet
  15. § 1. International legal protection of the rights of authors, executors and manufacturers of soundtracks concerning use of objects of intellectual property in a network the Internet
  16. model of formation key educational kompetentsy senior pupils resources of a network the Internet
  17. 3.1. Obshchesotsialnoe the prevention kriminogennogo influences of an information field of a network the Internet on minors
  18. CHAPTER 1. BASES OF MAINTENANCE OF INFORMATION SAFETY OF MINORS IN THE NETWORK THE INTERNET