Lawyer Exam

Question 84 business reputation. Sharing the burden of proof. Protection of honor, dignity and business reputation (Article 152 of the Civil Code)

Question 84 Sharing the burden of proof. Protection of honor, dignity and business reputation (Article 152 of the Civil Code)

A citizen has the right to demand in court a refutation of information discrediting his honor, dignity or business reputation, if the person who disseminated such information does not prove that it is true.

At the request of interested persons, the protection of the honor and dignity of a citizen is allowed even after his death.

If information discrediting the honor, dignity or business reputation of a citizen is disseminated in the media mass media, they must be refuted in the same media.

If the specified information is contained in a document emanating from the organization, such a document is subject to replacement or revocation.

The order of refutation in other cases is established by the court.

A citizen in respect of whom information infringing on his rights or legally protected interests has been published by the media has the right to publish his response in the same media.

If the court decision is not executed, the court has the right to impose a fine on the violator, levied in the amount and in the manner prescribed by the procedural legislation, to the income Russian Federation. The payment of the fine does not release the violator from the obligation to perform the action envisaged by the court decision.

A citizen in respect of whom information is disseminated that discredits his honor, dignity or business reputation, has the right, along with the refutation of such information, to demand compensation for losses and moral damage caused by their dissemination.

If it is impossible to identify the person who has disseminated information that discredits the honor, dignity or business reputation of a citizen, the person in respect of whom such information is disseminated has the right to apply to the court for recognition of the disseminated information as untrue.

Rules Art. 152 of the Civil Code on the protection of the business reputation of a citizen, respectively, apply to the protection of business reputation legal entity.

Burden of proof.

By virtue of paragraph 1 of article 152 Civil Code Russian Federation, the obligation to prove the validity of the disseminated information lies with the defendant. The plaintiff is obliged to prove the fact of dissemination of information by the person against whom the claim is brought, as well as the discrediting nature of this information.

At the same time, proceeding from paragraph 3 of the said article, in the case when a citizen, in respect of whom the mass media published information corresponding to reality, infringing on his rights and legally protected interests, disputes the refusal of the editorial office of the mass media to publish his response to this publication, the plaintiff is obliged to prove that the disseminated information infringes on his rights and legally protected interests.

In accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 29 of the Constitution of the Russian Federation, which guarantee everyone the right to freedom of thought and speech, as well as freedom of the media, the position of the European Court of Human Rights when considering cases for the protection of honor, dignity and business reputation, the courts should distinguish between statements of fact that can be verified, and value judgments, opinions, beliefs that are not the subject judicial protection in accordance with Article 152 of the Civil Code of the Russian Federation, since, being an expression of the defendant's subjective opinion and views, they cannot be verified for their compliance with reality

1.12. Cases on the protection of honor, dignity and business reputation The dignity of the individual is protected by the state, and nothing can be a basis for belittling it (Article 21 of the Constitution of the Russian Federation). This guarantee is given to any person: the dignity of not only an adult and

Article 5.13. Failure to provide an opportunity to publish a refutation or other explanation in defense of honor, dignity or business reputation Failure to provide an opportunity to publish (publish) a refutation or other explanation in defense of honor, dignity or

Article 152. Protection of honor, dignity and business reputation 1. A citizen has the right to demand in court a refutation of information discrediting his honor, dignity or business reputation, if the disseminator of such information does not prove that they correspond to reality.

Article 152. Protection of honor, dignity and business reputation 1. A citizen has the right to demand in court a refutation of information discrediting his honor, dignity or business reputation, if the disseminator of such information does not prove that they correspond to reality.

Article 152. Protection of honor, dignity and business reputation 1. A citizen has the right to demand in court a refutation of information that discredits his honor, dignity or business reputation, if the person who disseminated such information does not prove that they correspond to reality.

Chapter 5

Article 5. 13. Failure to provide an opportunity to publish a refutation or other explanation in defense of honor, dignity or business reputation

Article 5.13. Failure to provide an opportunity to publish a refutation or other explanation in defense of honor, dignity or business reputation Failure to provide an opportunity to publish (publish) a refutation or other

3.3. Decree of the Plenum of the Supreme Court of the Russian Federation "On judicial practice in cases of protecting the honor and dignity of citizens, as well as the business reputation of citizens and legal entities" (1) dated February 24, 2005 No. 3 In accordance with Article 23 of the Constitution of the Russian Federation, everyone has

Claims for the protection of honor, dignity and business reputation Article 152 of the Civil Code of the Russian Federation states: “A citizen has the right to demand in court a refutation of information discrediting his honor, dignity or business reputation, if the person who disseminated such information does not prove that they correspond

Decree of the Plenum of the Supreme Court of the Russian Federation of February 24, 2005 No. 3 “On judicial practice in cases of protecting the honor and dignity of citizens, as well as the business reputation of citizens and legal entities” In accordance with Article 23 of the Constitution of the Russian Federation, everyone has the right to

Chapter 6. Judicial Protection of the Honor and Dignity of Citizens, Business Reputation of Legal Entities A citizen or organization has the right to demand in court that information discrediting their honor and dignity, business reputation be refuted, unless the person who disseminated such information proves that

Statement of claim for the protection of honor, dignity and business reputation To _____________________________ district (city) court______________________________ region (territory, republic) Plaintiff: _____________________ (name of organization or full name, address) Respondent: ________________ (name of organization or full name ,

The right to honor, dignity and business reputation is the right to self-esteem and a socially significant assessment of the moral, business and other features and properties of a citizen or legal entity (organization), on which their position in society depends. There is an objective and subjective assessment of these qualities, and each of them has the right to exist if it is based on facts that correspond to reality.

Dignity is understood as the self-esteem of the individual, her awareness of her personal qualities, abilities, worldview, duty performed and her social significance. Self-assessment should be based on socially significant criteria for assessing the moral and other qualities of a person. Dignity determines the subjective assessment of the individual.

Honor is an objective assessment of a person that determines the attitude of society towards a citizen or legal entity, this social assessment moral and other qualities of a person.

Reputation is the prevailing opinion about a person, based on an assessment of his socially significant qualities. Business reputation - assessment professional qualities.

The current Civil Code establishes a special civil law method for protecting honor, dignity and business reputation, while distinguishing between the grounds and methods for protecting the violated rights of a citizen, on the one hand, and a legal entity, on the other.

A citizen has the right to demand in court a refutation of information discrediting his honor, dignity and business reputation, if the person who disseminated such information does not prove that they are true (paragraph 1 of article 152 of the Civil Code). From the content of Art. 152 of the Civil Code, it follows that this refers to the refutation by the court of such information that:

• 1) discredit the honor and dignity of a citizen;
• 2) distributed by the respondent;
• 3) are not true.

In the resolution of the Plenum of the Supreme Court of the Russian Federation "On some issues that arose during the consideration by the courts of cases on the protection of the honor and dignity of citizens and organizations" dated August 18, 1992 No. 11, it is explained what is meant by each of the listed conditions.

Discrediting is such information that does not correspond to reality, containing allegations of a violation by a citizen of the current legislation or moral principles (of committing a dishonest act, improper behavior in work collective, everyday life and other information discrediting the production and social activities, reputation, etc.), which detract from his honor and dignity.

The dissemination of information discrediting the honor and dignity of citizens should be understood as the publication of such information in the press, broadcast on radio and television and video programs, demonstration in newsreel programs and other media, presentation in judicial characteristics, public speaking, statements addressed officials, or communication in another, including oral, form to several persons or at least one person. The communication of such information only to the person whom it concerns cannot be recognized as dissemination thereof.

Article 152 of the Civil Code establishes a special procedure for refuting discrediting information that has been circulated in the media: a refutation must follow in the same media. In accordance with Art. 152 of the Civil Code does not consider the requirements for the refutation of information contained in court decisions and sentences, decisions of the preliminary investigation bodies and other official documents, for which the law establishes a different procedure for appealing.

When considering in court a case on the protection of honor and dignity, the plaintiff proves only the very fact of dissemination of discrediting information by the person against whom the claim is brought. The obligation to prove the validity of the disseminated information rests with the defendant. With facts that correspond to reality, a citizen denigrates himself and in this case he has no one to defend himself from.

special order established to refute the information contained in the document emanating from the organization: such a document is subject to replacement. For example, an entry in the work book about dismissal for a systematic violation labor discipline recognized by the court as untrue; in this case, the employee has the right to demand replacement work book without making a defamatory entry into it.

The procedure for refutation in other cases is established by the court, taking into account the manner in which the discrediting information was disseminated.

According to paragraph 3 of Art. 152 of the Civil Code, a citizen in respect of whom the mass media published information infringing on his rights or interests protected by law, has the right to publish his answer in the same mass media. It seems that a citizen has the right to retort both in those cases where the published information does not in itself discredit him, and in those cases where they contain information discrediting the citizen.

Defendants in claims for the refutation of information discrediting honor and dignity are the persons who disseminated this information. If the claim contains a requirement to refute the information disseminated in the mass media, the author and the editorial office of the relevant mass media are involved as defendants. When publishing or otherwise distributing such information without indicating the name of the author (for example, in an editorial), the defendant in the case is the editorial office of the corresponding mass media. So, Society with limited liability"Viturid plus" applied to the Moscow Arbitration Court with a claim against the closed joint-stock company"Medical newspaper" on the refutation of the information discrediting his business reputation, contained in the information "Viturid is unfit. The end has been set" ("Medical newspaper" dated 12.02.97 N 12). 05/15/97 to publish on the front page of the newspaper a refutation of the information: "Viturid is not good. The end has been set", as well as the phrases: "... The Pharmacopeial and Pharmacological Committees refuse to recommend it for registration."

If the editorial office of a mass media outlet is not a legal entity, the founder of this mass media outlet must be involved as a defendant in the case.

In claims for the refutation of discrediting information set forth in service characteristics, the defendants are the persons who signed them, and the enterprise, institution, organization on behalf of which the characteristic was issued.

If the actions of a person who disseminated information discrediting another person contain signs of a crime, the victim has the right to apply to the court to bring the perpetrator to criminal liability, as well as to file a claim for the protection of honor and dignity in civil proceedings.

If it is impossible to identify the person who disseminated information discrediting the honor, dignity or business reputation of a citizen, the person in respect of whom such information is disseminated has the right to apply to the court for recognition of the disseminated information as untrue (paragraph 6 of article 152 of the Civil Code).

When filing a claim for the protection of honor and dignity, the law does not provide for the mandatory preliminary filing of such a claim against the defendant, including in the case when the claim is brought against the mass media that disseminated information that, in the opinion of the claimant, unreasonably defame his honor, dignity or business reputation.

If a claim is filed in connection with the refusal of the mass media to publish a refutation or a response of a discredited person, then this requirement may be considered by the court, provided that the editorial office of the mass media refused to publish such publication or did not produce it in the manner prescribed by law.

If the court decision is not carried out, the court has the right to impose a fine on the violator in the amount and in the manner prescribed by the procedural legislation.

Paragraph 2 of Art. 150 of the Civil Code provides for the possibility of using it for protection intangible benefits any method referred to in Art. 12 of the Civil Code, as well as other methods established by the Code and other laws, if only the nature of the violated intangible benefit and the nature of the consequences of this violation allow such protection.

In accordance with paragraph 5 of Art. 152 of the Civil Code, a citizen in respect of whom information discrediting his honor, dignity or business reputation is disseminated, has the right, along with the refutation of such information, to demand compensation for losses and moral damage caused by their dissemination.

Paragraph 7 of Art. 152 of the Civil Code provides that the rules on the protection of the business reputation of a citizen are accordingly applied to the protection of the business reputation of a legal entity. This means that a legal entity has the right to demand a refutation of information discrediting its business reputation that does not correspond to reality, has the right to publish a response in the media and to establish in court the fact that widespread discrediting information does not correspond to reality, as well as to compensate for what has been caused in connection with encroachments on business reputation for property damage.

With regard to compensation for moral damage, Art. 151 of the Civil Code, this issue is settled only in relation to violations of the rights of citizens. Since legal entities cannot experience physical and moral suffering, most scientists are inclined to a reasonable conclusion that moral harm has been caused to legal entities, cannot be, and therefore cannot be compensated, it simply does not exist. At the same time, the above does not mean at all that the employees of a legal entity are not entitled to demand compensation for the moral damage caused to them, for example, if information about the legal entity that does not correspond to reality is personified with specific individuals.

Civil Code, N 51-FZ | Art. 152 of the Civil Code of the Russian Federation

Article 152 of the Civil Code of the Russian Federation. Protection of honor, dignity and business reputation (current version)

1. A citizen has the right to demand in court a refutation of information discrediting his honor, dignity or business reputation, if the person who disseminated such information does not prove that it is true. The refutation must be made in the same way that information about the citizen was disseminated, or in another similar way.

At the request of interested persons, the protection of the honor, dignity and business reputation of a citizen is allowed even after his death.

2. Information discrediting the honor, dignity or business reputation of a citizen and disseminated in the media must be refuted in the same media. A citizen, in respect of whom the said information has been disseminated in the media, has the right to demand, along with a refutation, also the publication of his answer in the same media.

3. If information discrediting the honor, dignity or business reputation of a citizen is contained in a document emanating from an organization, such document is subject to replacement or revocation.

4. In cases where information discrediting the honor, dignity or business reputation of a citizen has become widely known and in connection with this the refutation cannot be brought to public attention, the citizen has the right to demand the removal of the relevant information, as well as the suppression or prohibition of the further dissemination of the specified information by withdrawing and destruction, without any compensation, of copies of material carriers made for the purpose of putting into civil circulation containing the specified information, if without the destruction of such copies of material carriers, the removal of the relevant information is impossible.

5. If information that discredits the honor, dignity or business reputation of a citizen becomes available on the Internet after their dissemination, the citizen has the right to demand the removal of the relevant information, as well as the refutation of the specified information in a way that ensures that the refutation is brought to the attention of Internet users.

6. The procedure for refuting information discrediting the honor, dignity or business reputation of a citizen, in other cases, except for those specified in paragraphs 2-5 of this article, is established by the court.

7. The application to the violator of measures of responsibility for non-execution of a court decision does not relieve him of the obligation to perform the action provided for by the court decision.

8. If it is impossible to identify the person who has disseminated information discrediting the honor, dignity or business reputation of a citizen, the citizen in respect of whom such information has been disseminated has the right to apply to the court for recognition of the disseminated information as untrue.

9. A citizen in respect of whom information is disseminated that discredits his honor, dignity or business reputation, along with the refutation of such information or the publication of his answer, has the right to demand compensation for losses and compensation for moral damage caused by the dissemination of such information.

10. The rules of paragraphs 1-9 of this article, with the exception of the provisions on compensation for moral damage, may also be applied by the court to cases of dissemination of any information about a citizen that does not correspond to reality, if such a citizen proves that the indicated information does not correspond to reality. The limitation period for claims made in connection with the dissemination of the said information in the mass media is one year from the date of publication of such information in the relevant mass media.

11. The rules of this article on the protection of the business reputation of a citizen, with the exception of the provisions on compensation for moral damage, respectively apply to the protection of the business reputation of a legal entity.

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Commentary on Art. 152 of the Civil Code of the Russian Federation

1. Honor, in other words, a good name, is the perception of the subject by himself, as well as by others, from the point of view of the personal qualities of this subject.

Dignity is traditionally understood as self-esteem, perception by the subject ( individual) itself.

The business reputation of an individual, as well as a legal entity, is understood as the prevailing perception, not by this person, but by other persons, of the professional qualities of an individual or legal entity that has individual advantages over other entities engaged in similar activities.

The indicated intangible benefits are protected by the current legislation (in particular, criminal liability for slander, i.e. dissemination of knowingly false information that discredits the honor and dignity of another person or undermines his reputation, is provided for by Article 128.1 of the Criminal Code of the Russian Federation).

Dissemination of information that discredits the honor and dignity of citizens or the business reputation of citizens and legal entities can be a manifestation of a violation of honor, dignity, business reputation.

The dissemination of information discrediting the honor and dignity of citizens or the business reputation of citizens and legal entities should be understood as the publication of such information in the press, broadcast on radio and television, demonstration in newsreel programs and other media, distribution on the Internet, as well as using other means of telecommunications, presentation in official characteristics, public speeches, statements addressed to officials, or a message in one form or another, including oral, to at least one person. The communication of such information to the person to whom they concern cannot be recognized as their dissemination, if the person who provided this information has taken sufficient confidentiality measures so that they do not become known to third parties.

Information that does not correspond to reality is statements about facts or events that did not take place in reality at the time to which the disputed information relates. Information contained in judicial decisions and sentences, decisions of the preliminary investigation bodies and other procedural or other official documents, for appeal and contestation of which is provided for by another judicial procedure established by laws (for example, cannot be refuted in accordance with Art. 152 of the Civil Code of the Russian Federation, the information set out in the dismissal order, since such an order can only be challenged in the manner prescribed by the Labor Code of the Russian Federation).

Discrediting, in particular, are information containing allegations of a violation by a citizen or legal entity of the current legislation, the commission of a dishonest act, incorrect, unethical behavior in personal, public or political life, bad faith in the implementation of production, economic and entrepreneurial activity, violation business ethics or business practices that detract from the honor and dignity of a citizen or the business reputation of a citizen or legal entity.

By general rule the obligation to prove this or that circumstance lies with the person who indicated this circumstance (part 1 of article 56 of the Code of Civil Procedure of the Russian Federation). However, in cases of protection of honor, dignity and business reputation, the obligation to prove the validity of the disseminated information lies with the defendant. The plaintiff is obliged to prove the fact of dissemination of information by the person against whom the claim is brought, as well as the discrediting nature of this information.

In the event of dissemination of untrue defamatory information regarding minors or incapacitated citizens, claims for the protection of their honor and dignity may be filed by their legal representatives (for example, parents). After the death of a citizen, the protection of his honor, dignity and business reputation may be initiated by his relatives and (or) heirs.

2. When satisfying a claim for the protection of honor and (or) dignity and (or) business reputation, the court, in the operative part of the decision, is obliged to indicate the method of refuting discrediting information that does not correspond to reality and, if necessary, set out the text of such a refutation, which should indicate which information are untrue defamatory information, when and how they were distributed, as well as determine the period during which a refutation should follow. A refutation circulated in the media can be dressed up in the form of a report on the this case judgment, including the publication of the text of the judgment.

As a general rule, a court decision to refute information discrediting honor, dignity and business reputation must be executed voluntarily. Otherwise, after the entry into force of the court decision, the person has the right to apply to the court for the issuance of a writ of execution for applying to the bailiff service for the purpose of its subsequent enforcement. In cases of non-fulfillment by the debtor of the requirements contained in the executive document, within the period established for voluntary execution, within a day from the date of receipt of a copy of the decision of the bailiff on the initiation of enforcement proceedings, the bailiff shall issue an order to collect the enforcement fee and establish the debtor new term for execution. And if the debtor fails to fulfill the requirements contained in the executive document, without good reasons in again set time a person may be, according to Part 2 of Art. 105 FZ dated 02.10.2007 N 229-FZ "On Enforcement Proceedings" brought to administrative responsibility under Art. 17.15 of the Code of Administrative Offenses of the Russian Federation, and in case of further non-execution of a court decision - up to a criminal one (under Article 315 of the Criminal Code of the Russian Federation).

Having assessed, in accordance with the requirements of Chapter 7 of the Code, the evidence presented by the parties, in their totality and interconnection, based on the actual circumstances of the case, guided by Article 152 of the Civil Code of the Russian Federation, Review of the practice of court consideration of cases on disputes on the protection of honor, dignity and business reputation, approved by the Presidium of the Supreme Court of the Russian Federation on March 16, 2016, the court of appeal, canceling the decision of the court of first instance, proceeded from the fact that the frame showed a product marked with the trademark "Blagoyar", the copyright holder of which is the company ...

Decision of the Supreme Court: Ruling N 309-ES17-7878, Judicial Collegium for Economic Disputes, cassation

Believing that the specified information is untrue and discredits business reputation, the company appealed to court of Arbitration with these requirements. By virtue of paragraph 1 of Article 152 of the Civil Code of the Russian Federation, the obligation to prove the validity of the disseminated information lies with the defendant. The plaintiff is obliged to prove the fact of dissemination of information by the person against whom the claim is brought, as well as the discrediting nature of this information ...

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In accordance with Art. 23 of the Constitution of the Russian Federation, everyone has the right to protect their honor and good name. The Plenum of the Supreme Court of the Russian Federation, in its resolution of February 24, 2005 No. 3 “On judicial practice in cases of protecting the honor and dignity of citizens, as well as the business reputation of citizens and legal entities”, draws the attention of the courts to the fact that the right of citizens to protect the honor, dignity and business reputation is their constitutional right, and the business reputation of legal entities is one of the conditions for their successful activities.

Article 1274 of the Civil Code of the Russian Federation establishes the possibility of creating a parody or caricature without the consent of the author or other owner exclusive right on the original work and without paying him remuneration. If a parody or caricature defames the honor, dignity or business reputation of the author of the original work, he has the right to defend them in the manner prescribed by Art. 152 of the Civil Code of the Russian Federation.

The dissemination of information discrediting the honor and dignity of citizens or the business reputation of citizens and legal entities should be understood as the publication of such information in the press, broadcast on radio and television, demonstration in newsreel programs and other media, distribution on the Internet, as well as using other means. telecommunications, presentation in official characteristics, public speeches, statements addressed to officials, or a message in one form or another, including oral, to at least one person. The communication of such information to the person to whom they concern cannot be recognized as their dissemination if the person who provided this information has taken sufficient confidentiality measures so that they do not become known to third parties.

Information that does not correspond to reality is statements about facts or events that did not take place in reality at the time to which the disputed information relates. Information contained in judicial decisions and sentences, decisions of the preliminary investigation bodies and other procedural or other official documents, for appeal and contestation of which is provided for by another judicial procedure established by laws, cannot be considered as untrue (for example, they cannot be refuted in accordance with Art. 152 of the Civil Code of the Russian Federation, the information set out in the dismissal order, since such an order can only be challenged in the manner prescribed by the Labor Code of the Russian Federation).

Discrediting, in particular, are information containing allegations of a violation by a citizen or legal entity of the current legislation, committing a dishonest act, incorrect, unethical behavior in personal, public or political life, bad faith or the implementation of production, economic and entrepreneurial activities, violation of business ethics or customs which detract from the honor and dignity of a citizen or the business reputation of a citizen or legal entity.

The legal basis when considering issues of protecting honor, dignity and business reputation, in addition to Art. 152 of the Civil Code of the Russian Federation is Art. one federal law dated 30.03.1998 No. 54-FZ “On the ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols”, the legal position of the EMSP, expressed in resolutions and relating to the interpretation and application of the Convention (primarily sg. 10), while having in mind that the concept of defamation used by the ESG1CH in its judgments is identical to the concept of dissemination of defamatory information that does not correspond to reality, contained in Art. 152 of the Civil Code of the Russian Federation.

The legislation provides for cases of exemption from liability for the dissemination of inaccurate defamatory information. The list of such cases is enshrined in Art. 57 of the Law of the Russian Federation of December 27, 1991 No. 2124-1 “On the Mass Media”, is exhaustive and is not subject to broad interpretation. For example, the reference of media representatives to the fact that the publication is an advertising material cannot serve as a basis for exemption from liability. By virtue of Art. 36 of the Law, the distribution of advertising in the media is carried out in accordance with the procedure established by the legislation of the Russian Federation on advertising. According to Art. 1 of the Federal Law of March 13, 2006 No. 38-FZ “On Advertising”, the objectives of this Law are the development of markets for goods, works and services based on the principles of fair competition, ensuring the unity of the economic space in the Russian Federation, exercising the right of consumers to receive fair and reliable advertising , creation favorable conditions for production and distribution social advertising, prevention of violation of the legislation of the Russian Federation on advertising, as well as suppression of the facts of inappropriate advertising.