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- The objective of justice: how will the law on video recording of notarial actions help Russians?
The objective of justice: how will the law on video recording of notarial actions help Russians?
A group of deputies and senators has submitted to the State Duma a bill proposing to introduce mandatory video notarization of real estate transactions. According to the authors of the bill, this should help. fight against fraudsters. The records can be used in court as evidence, which will protect both sellers and buyers. However, the initiative also raises a number of issues, from technical implementation to respect for the right to privacy. Details can be found in the Izvestia article.
Under one comb
The obligation of a notary to record on video notarial actions when making real estate transactions is proposed to be fixed at the legislative level. A bill providing for this was submitted to the State Duma by a group of deputies and senators.
"The requirement for video recording should reduce the number of cases of fraudulent activities involving citizens who may not fully understand the essence of the transaction. The results of the video recording will serve as evidence in favor of the seller, confirming, for example, that the transaction was actually aimed at other legal consequences. In addition, the video recording materials could themselves become the subject of an appropriate forensic examination or serve as the basis for its appointment. On the other hand, video recording can also help protect the interests of a bona fide buyer from possible abuse by the seller or his relatives," the explanatory note to the document explains.
The Federal Notary Chamber, in a conversation with Izvestia, reminds that video notarization of joint wills of spouses and inheritance agreements is already mandatory. In addition, at the request of applicants, the registration of classic wills and real estate transactions is often filmed.
If the bill is adopted, mandatory video recording will apply to all real estate transactions that are legally classified as notarized, says Gulnara Kurbanova, head of land law projects at Sokolov, Trusov and Partners Law Firm.
— We are talking about purchase and sale, donation, exchange, rent, mortgage, share transactions and other comparable transactions. In fact, the bill translates the practice that has existed since 2015 in a voluntary format into mandatory for real estate transactions," she explains.
The initiative on mandatory video recording of notarial actions in real estate transactions sounds logical, but it reveals contradictions, says Ilya Rusyaev, a lawyer and founder of the Rusyaev Club business community. The fact is that the notarial form of transactions covers only a part of the market.
— Purchase and sale between individuals without shared ownership, without the participation of minors and without guardianship may well do with a simple written form through the MFC. It is in this segment that fraud is no less common than in the notary sector," the expert draws attention to.
By itself, the new norm will not solve the problem of fraud in the field of purchase and sale of real estate, the FNP confirms.
— Fraudulent actions with real estate are committed mainly when concluding transactions in simple written form, that is, without the participation of a notary. The attackers try to avoid visits to the notary, as he conducts detailed checks, ensures that the transaction is legal, and reveals the true intentions and desires of the parties, according to the organization's press service.
Video recording of real estate transactions can be an additional protective tool, they admit. However, it seems more appropriate for the Federal Notary Chamber to approve a mandatory notarial form for all real estate transactions between citizens.
—The notary's seal on the document guarantees the legal purity of the transaction and is a powerful protection against fraud and future challenges," the FNP emphasizes.
Protection Tool
Any notarial contract has increased evidentiary value in court, the Federal Notary Chamber reminds.
— You can challenge it only in a special order, proving that violations were committed during the certification. In such cases, video recording can help a notary confirm that the notarial act was performed in compliance with all the rules and regulations of the law, the organization says.
As evidence in court, a video recording made by a notary can be used in disputes where it is necessary to establish the circumstances of the transaction, and not be limited to analyzing signed documents, Gulnara Kurbanova clarifies.
— It is especially important when considering cases of challenging transactions on the grounds of delusion, deception, violence or threat, as well as in situations where the court needs to assess the ability of a person at the time of the transaction to understand the meaning of their actions or to direct them, — the lawyer lists.
A notarized video recording will be a stronger proof in court than a regular one, due to the requirements of the FNP, Ilya Rusyaev points out. It contains the date and time and allows you to identify the participants in the transaction. At the same time, integrity is ensured by an electronic signature or other storage technologies.
— But in order for the recording to really work as proof, it is necessary to record not only the moment of signing. Identification, notary's questions about understanding the terms, confirmation of the absence of pressure, awareness of the consequences of the transaction should be included in the frame, the expert is convinced.
A legally significant video recording should record not the formal signing ritual, but the process of forming the will of the parties, Kurbanova emphasizes.
— It is essential to record the announcement of the text of the agreement, the questions of the parties and the clarifications they have received. It is this completeness of the recording that makes it possible to confirm that the decision was made consciously, without pressure and with an understanding of all legal consequences," explains the Izvestia interlocutor.
It should be borne in mind that video surveillance can create a short-term feeling of stiffness among the participants in the transaction, especially at the beginning of the procedure, she warns. However, it is important for them to understand that the recording is not for control, but to protect the interests of all parties.
— Unlike the lack of fixation, which often leaves room for pressure and hidden manipulations, video recording makes the procedure more collected and honest. It does not suppress the will of the parties, but, on the contrary, fixes it in the form in which it was expressed, reducing the risk of subsequent disputes and unfair interpretations of what happened, the lawyer is sure.
It is important to keep in mind that such videos relate to the private lives of citizens and their personal data in one way or another. Access to such information without the consent of the participants should be limited, says Alexander Kiselyov, UserGate's patent attorney. In this regard, according to the expert, there is no need for centralized storage of such information.
"By analogy with other confidential information, it may be mandatory to provide video recordings without the consent of the participants only at the request of the court," the expert believes.
However, from a legal point of view, the initiative does not violate the right to privacy, since the notary acts within the framework of a public function, and the information obtained during the commission of a notarial act is protected by a regime of notarial secrecy, Kurbanova recalls.
— The video recording falls under this mode and does not imply free access. The use of such materials is possible only in cases strictly prescribed by law, which minimizes the risks of interference with privacy," she emphasizes.
A security issue
Currently, the notary is obliged to ensure the safe storage of video recordings in compliance with notarial secrecy and legislation on personal data, the Federal Notary Chamber confirms. According to the rules of the FNP, materials are stored for at least five years with protection measures against unauthorized access, copying and destruction, Ilya Rusyaev reminds. The notary determines the place of storage, the circle of persons with access and specific protection measures by a local act. However, the standard, as the expert emphasizes, remains at the discretion of a particular office.
— Someone uses a local server with encryption, someone writes to an external medium stored in a safe. With mass adoption, such heterogeneity will turn into vulnerability," the lawyer warns.
Mass storage of video recordings of notarial actions will require the creation of a secure infrastructure that meets the requirements of 152-FZ on personal data, says Ekaterina Edemskaya, an analyst engineer at Gazinformservice. According to the law, such data must be localized on the territory of the country, and therefore the use of foreign cloud storage is excluded.
"The most likely scenario is the placement of information in FSTEC and FSB—certified data centers owned by notary chambers of the constituent entities of the Russian Federation or authorized state operators," the expert believes.
In her opinion, video materials should be encrypted both during transmission and at rest using certified cryptographic information protection tools, and access to them should be strictly regulated by a role model with mandatory audit logs.
"It is critically important to exclude the possibility of unauthorized deletion or modification of records, which will require the introduction of integrity control and backup technologies in geographically distributed sites," the Izvestia interlocutor is convinced.
It is best to store video recordings taking into account reliability, availability and scalability, says Andrey Kuznetsov, CEO of RuBekap LLC.
"The optimal approach depends on the amount of data, budget, and security requirements, but the key is a combination of local and cloud storage with backup," the expert believes.
At the same time, reliable storage of the video archive will require multi-layered protection combining technical, organizational and legal measures, Edemskaya emphasizes.
— The encryption keys must be stored separately from the archive with the division of responsibilities between the responsible persons. Access to records should be governed by a strict role model with mandatory two-factor authentication and automatic session termination after a short period of inactivity. All operations — viewing, copying, exporting — must be recorded in an immutable audit log with reference to a specific user and a timestamp," she lists the requirements.
To protect against targeted attacks, network segmentation will be required, eliminating direct access to storage from the external environment, as well as regular backups with geographical distribution of copies and verification of their recoverability, adds the Izvestia interlocutor.
"Without such comprehensive protection, the archive will turn from an anti—fraud tool into a source of systemic risks, since a massive leak of videos with passport data and signatures of citizens will pose a threat to thousands of people," warns Edemskaya.
Reliable integration
To ensure the safety of Gulnara Kurbanova, it seems rational to include a video recording in an electronic notary file with reference to a specific notary action and its registration number.
— The unified information system of the notary already provides secure storage of documents and access control, therefore, the placement of video materials in this system is logical from the point of view of the integrity and evidentiary value of the notary archive, — the lawyer is sure.
The Unified Information System of the Notary uses modern data storage standards approved by the FSTEC and the FSB, according to the Federal Notary Chamber. The documents and files that are hosted in the system are guaranteed immutability, safety and protection from access by third parties. During the 11 years of the notary's EIS existence, as noted in the FNP, there have been no leaks of information and personal data from it.
The integration of the video archive with the system will require an upgrade of the existing architecture, initially focused on text and structured data, warns Ekaterina Edemskaya. It is possible only through specialized notary programs that ensure data synchronization, Andrey Kuznetsov believes.
— Direct video transmission is not provided, but document scans are already integrated into the EIS. The video archive can be linked as scanned images or applications to cases in the registry, the expert admits.
However, according to Ekaterina Edemskaya, the most rational approach would be to implement a hybrid model.
— The video recording metadata can be stored in the UIS — hash amount, timestamps, notary identifier, link to the physical location of the file - and the video materials themselves can be placed in a specialized secure storage linked to the registry number of the notary action. This scheme will minimize the load on the main system and preserve its performance," the expert summarizes.
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