DECISION
OF THE PLENUM OF THE SUPREME COURT
OF THE RUSSIAN FEDERATION
No. 3
Moscow February, 24, 2005.
On Judicial Practice At Disposal Of Cases on Protection of Honour and Dignity of Persons, and Also Business Reputation of Persons and Legal Entities
According to Article 23 of the Constitution of the Russian Federation everyone has the right to protection of his/her honour and reputation. Article 29 of the Constitution of the Russian Federation guarantees everyone freedom of thought and expression, and also freedom of information.
Under Article 15 part 4 of the Constitution of the Russian Federation universally recognized principles and norms of International Law and international agreements of the Russian Federation became a component of its legal system. With reference to the freedom of information on the territory of the Russian Federation Article 10 of the Convention on Protection of Human Rights and Fundamental Freedoms operates, according to paragraph 1 of which, each person has the right to express his/her opinion freely. This right includes freedom to hold opinions, to receive and impart information and ideas without interference of public authority and regardless of frontiers.
At the same time Article 10 paragraph 2 of the named Convention points out that the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health and morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. At the same time the provisions of the given norm should be interpreted according to the legal position of the European Court on Human Rights, expressed in its decisions.
The right of everyone on protection of his/her honour and reputation stipulated by Articles 23 and 46 of the Constitution of the Russian Federation, and also the right of everyone on judicial protection of honour, dignity and business reputation against the widespread defamation not in conformity with the real state of things established by article 152 of the Civil Code of the Russian Federation present necessary restrictions on the freedom of speech and information for cases of abusing these rights.
Having discussed the materials of the study of judicial practice at the disposal of cases protection of honour, dignity and business reputation carried out, Plenum of the Supreme Court of the Russian Federation marks, that the courts of Russia examine cases of the given category basically correct, with observance of the requirements stipulated by article 152 of the Civil Code of the Russian Federation,. At the same time in connection with the ratification of the Convention on Protection of Human Rights and Fundamental Freedoms and its Protocols by the Russian Federation some questions demanding their solution have arisen in judicial practice.
Taking this into account, the Plenum of the Supreme Court of the Russian Federation with a view of maintenance of correct and uniform application of the legislation regulating specified legal relations, d e c i d e s to give to the courts the following explanations:
1. To attract courts’ attention to the fact that the right of persons on protection of honour, dignity and business reputation is their constitutional right and business reputation of legal persons is one of the conditions of their successful activity.
By virtue of Article 17 of the Constitution of the Russian Federation rights and freedoms of the person and citizen are recognized and guaranteed in the Russian Federation according to the universally recognized principles and norms of international law and according to the Constitution of the Russian Federation. Thus realization of rights and freedoms of the person and citizen should not infringe the rights and freedoms of other persons.
Considering these constitutional provisions, courts at the examination of disputes on protection of honour, dignity and business reputation should provide for necessary balance between the right of persons on protection of honour, dignity, and also business reputation, on the one hand, and other rights and freedoms guaranteed by the Constitution of the Russian Federation - freedom of thought, of expression, of the information, the right to search, receive, transfer, make and distribute the information freely using all lawful ways, the right to inviolability of private life, personal and family secret, the right to apply to the state bodies and institutions of local self-government (Articles 23, 29, 33 of the Constitutions of the Russian Federation) – on the other.
At the disposal of cases of the given category it is necessary to take into account the explanations given by the Plenum of the Supreme Court of the Russian Federation in its decisions dated October, 31, 1995 No. 8 «On Some Questions of the Application of the Constitution of the Russian Federation by the Courts While Administering Justice» and October, 10, 2003 No. 5 «On the Application of the Universally Recognized Principles and Norms of the International Law and the International Agreements of the Russian Federation by the Courts of General Jurisdiction».
At the resolution of disputes on protection of honour, dignity and business reputation courts should be guided not only by the norms of the Russian legislation (article 152 of the Civil code of the Russian Federation), but also by virtue of article 1 of the Federal law dated March, 30, 1998 No. 54-FZ «On the Ratification of the Convention on Protection of Human Rights and Fundamental Freedoms and its Protocols» to take into account legal position of the European Court of Human Rights, expressed in its decisions concerning questions of interpretation and application of the given Convention (first of all Article 10), having in mind, that the concept of the defamation used by the European Court of Human Rights in its decisions is identical to the concept of widespread defamation not in conformity with the real state of things, contained in article 152 of the Civil Code of the Russian Federation.
2. Persons and legal entities who consider that defamation not in conformity with the real state of things is widespread about them have the right to bring an action for cases of the category given.
At spreading such information concerning minors or incapacitated their legal representatives can bring actions on protection of their honour and dignity according to items 1 and 3 of article 52 of the Civil Procedure Code of the Russian Federation. Protection of honour and dignity of the person is allowed and after his/her death on demand of interested persons (for example, relatives, successors) (item 1 of the article 152 of the Civil Code of the Russian Federation).
Judicial protection of honour, dignity and business reputation of the person concerning whom defamation not in conformity with the real state of things is widespread, also is not excluded in a case when it is impossible to establish the person who has spread such information (for example, in the case of distribution of anonymous letters addressed to citizens and organizations or distribution of the information in the Internet by the person who cannot be identified). According to item 6 of article 152 of the Civil Code of the Russian Federation the court in the specified case has the right under application of the interested person to recognize the information distributed concerning him as defamation not in conformity with the real state of things. Such application is examined by way of special consideration (subsection IV of Civil Procedure Code of the Russian Federation).
3. Item 5 of part 1 of article 33 of the Arbitration Procedure Code of the Russian Federation establishes special jurisdiction of the arbitration courts on protection of business reputation in the sphere of entrepreneur and other economic activities. Thus according to part 2 of the named article specified cases are examined by arbitration courts irrespective of, whether legal entities, individual businessmen or other organizations and citizens are participants of legal relations from which a dispute or the requirement arise. Proceeding from these cases on protection of business reputation in the sphere of entrepreneur and other economic activities are not falling under the jurisdiction of the courts of general jurisdiction.
If the parties to the dispute on protection of business reputation are legal entities or individual businessmen in other sphere not concerning entrepreneur and other economic activities, such dispute falls under the jurisdiction of the courts of general jurisdiction.
4. According to items 1 and 7 of article 152 of the Civil Code of the Russian Federation a person has the right to demand refutation of information discrediting his/her honour, dignity or business reputation, and legal entity - information discrediting its business reputation in court. Thus the law does not stipulate obligatory preliminary reference to the respondent with such a request, including cases where the claim is addressed to the editorial staff of mass media in which the information mentioned above was distributed. At the same time a person has the right to address his/her request on the refutation of such information directly to the editor of the appropriate mass media, and refusal in the refutation or infringement of the order of refutation established by law can be appealed in court (articles 43 and 45 of the Law of the Russian Federation «On the Mass Media»).
A person concerning whom any information restraining him/her of his/her rights or interests protected by law is published in mass media, and also legal entity if the information published discredits its business reputation, has the right to publication of the answer in the same mass media (items 3, 7 of the article 152 of the Civil Code of the Russian Federation, article 46 of the Law of the Russian Federation «On the Mass Media »).
5. Authors of the defamation not in conformity with the real state of things, and also the persons who have distributed this information become appropriate respondents under claims on protection of honour, dignity and business reputation.
If challenged information was distributed in mass media, appropriate respondents are the author and editorial staff of the appropriate mass media. If this information was distributed in mass media with the indication of the person being its source this person also becomes appropriate respondent. At publication or other distribution of the defamation not in conformity with the real state of things without a designation of the name of the author (for example, in an editorial article) appropriate respondent in such case is the editorial staff of the appropriate mass media, that is the organization, physical person or the group of physical persons which is carrying out production and release of the given mass media (article 2 part 9 of the Law of the Russian Federation «On the Mass Media»). In case the editorial staff of mass media is not the legal entity, the founder of the given mass media can be involved in participation in the case as a respondent.
If the claimant addresses his/her request to only one of the appropriate respondents by which defamation not in conformity with the real state of things was distributed in common, the court has the right to involve co-defendants in the case only at the impossibility of consideration of the case without their participation (article 40 of the Civil Procedure Code of the Russian Federation).
In case where the information was distributed by the employee in connection with the performance of his/her professional activities on behalf of the organization where he/she works (for example in the professional characteristics), appropriate respondent according to article 1068 of the Civil Code of the Russian Federation is the legal entity the employee of which distributes such data. Taking into account, that the examination of the case given can affect the rights and duties of the employee, such employee may enter the case as the third party not declaring independent requests concerning the subject of the dispute on the side of the respondent, or can be involved in participation in the case under the initiative of court or under the petition of the persons participating in the case (article 43 of the Civil Procedure Code of the Russian Federation).
6. If actions of the person who has distributed defamation not in conformity with the real state of things, contain attributes of the crime stipulated by article 129 of the Criminal Code of the Russian Federation (slander), the victim has the right to address the court with the application for charging the accused with criminal responsibility and also bring an action on protection of honour and dignity or business reputation by way of civil judicial proceedings.
Refusal in the initiation of criminal case under article 129 of the Criminal Code of the Russian Federation, termination of the criminal case initiated, and also rendering the decision (sentence) do not exclude an opportunity of bringing an action on protection of honour and dignity or business reputation by way of civil judicial proceedings.
7. At the disposal of cases of the given category it is necessary to take into account, that the circumstances relevant to the case by virtue of article 152 of the Civil Code of the Russian Federation which should be determined by the judge at acceptance of the statement of claim and preparation of the case for hearings, and also during the hearings, are the following: the fact of distribution of the information about the claimant by the respondent, discrediting character of this information and discrepancy of its conformity with the real state of things. At the absence of even one of the specified circumstances the claim can not be satisfied by court.
Under the distribution of the information discrediting honour and dignity of the persons or business reputation of citizens and legal persons it is necessary to understand publication of such information in the mass media, its broadcasting on radio and TV, demonstration in film-chronicle programs and other mass media, distribution in the Internet and also with the use of other means of telecommunication, a statement in professional characteristics, public statements, the applications addressed to the officials, or the message in any form, including oral, addressed to even one person. Reporting such information to the person, whom it concerns, can not be regarded as its distribution if the person distributing given information, undertook sufficient measures of confidentiality so that such information could not become known to the third parties.
Courts should bear in mind, that in case the defamation not in conformity with the real state of things was placed in the Internet on the information resource registered as mass media in the order prescribed by law, at the disposal of the claim on protection of honour, dignity and business reputation it is necessary to be guided by the norms concerning mass media.
The defamation not in conformity with the real state of things may be described as statements about the facts or events which had no place in reality at the point in time challenged information referred to. Information contained in judgments and verdicts, decisions of the bodies of preliminary investigation and other procedural or official documents which may be appealed and contested under other judicial order prescribed by law can not be regarded as the defamation not in conformity with the real state of things (for example the data stated in the order on dismissal can not be refuted by way of using article 152 of the Civil Code of the Russian Federation as such order can be challenged only in the order stipulated by the Labour Code of the Russian Federation).
In particular the information can be regarded as discrediting if it contains the statements on breaches of the legislation in force by the persons or legal entities, performance of a dishonest act by them, their wrong, unethical behaviour in personal, public or political life, their lack of conscientiousness at the performance of industrial, economic and entrepreneur activities, infringement of business ethics or customs of the business operation which belittle honour and dignity of the person or business reputation of the person or legal entity.
8. For courts it is necessary to delimit cases on protection of honour, dignity and business reputation (article 152 of the Civil Code of the Russian Federation) from those on protection of other non-material welfare listed in article 150 of this Code, infringed in connection with the distribution of the information about the person which inviolability is specially protected by the Constitution of the Russian Federation and Russian laws and distribution of which may cause moral harm even in the case when this information lays in conformity with the real state of things and do not discredit honour, dignity and business reputation of the claimant.
In particular, at the resolution of disputes arisen in connection with the distribution of the information on private life of the person, it is necessary to take into account, that in the case when distribution of the information about private life which is in conformity with the real state of things took place without the consent of the claimant or his/her legal representatives, the respondent can be assigned with the duty to compensate the moral injury caused by distribution of such information (articles 150, 151 of the Civil Code of the Russian Federation). Exception is made for the cases where mass media distributed the information on private life of the claimant with a view of protection of public interests on the basis of article 49 item 5 of the Law of the Russian Federation «On the Mass Media». This norm corresponds to Article 8 of the Convention on Protection of Human Rights and Fundamental Freedoms.
But if distribution of the defamation not in conformity with the real state of things about private life of the claimant took place, the respondent may be obliged to refute this information and to compensate the moral injury caused by distribution of such information, on the basis of article 152 of the Civil Code of the Russian Federation.
9. By virtue of article 152 item 1 of the Civil Code of the Russian Federation the burden of proof of the conformity of the widespread information to the real state of things lays on the respondent. The claimant is obliged to prove the fact of distribution of the information by the person against whom the action is brought, and also discrediting character of this information.
At the same time proceeding from item 3 of the named article, in a case when the person concerning whom mass media published the information in conformity with the real state of things restraining him/her of the rights and interests protected by law, challenges refusal of mass media to publish his/her answer to the given publication, the claimant is obliged to prove that the widespread information derogates from his/her rights and interests protected by law.
According to Article 10 of the Convention on Protection of Human Rights and Fundamental Freedoms and Article 29 of the Constitution of the Russian Federation guaranteeing everyone the right on freedom of thought and expression, and on freedom of the information, and also the position of the European Court on Human Rights at disposal of cases on protection of honour, dignity and business reputation, it is necessary for courts to distinguish statements about the facts that actually took place and which conformity with the real state of things can be checked up, and estimated judgements, opinions, beliefs which are not subject for judicial protection under article 152 of the Civil Code of the Russian Federation, as being expression of subjective opinions and views of the respondent which can not be checked up for the conformity with the real state of things.
Courts should take into account, that according to articles 3 and 4 of the Declaration on Freedom of Political Debate in the Mass Media, adopted on February, 12, 2004 at the 872-nd session of the Committee of Ministers of the Council of Europe, the politicians aspiring to secure public opinion, thus agree to become the subject of public political debate and criticism in mass media. State officials can be subjected to criticism in mass media on how they execute their duties as it is necessary for maintenance of public and responsible performance of their powers.
The person which believes that the estimated judgement stated or the opinion distributed in mass media infringes his/her rights and legitimate interests, can use the right to answer, comment, having a retort in the same mass media given to him/her by article 152 item 3 of the Civil Code of the Russian Federation and article 46 of the Law of the Russian Federation «On the Mass Media», with a view of a substantiation of an inconsistency of the widespread judgements, having offered their different estimation.
If the subjective opinion was stated in the offensive form humiliating honour, dignity or business reputation of the claimant, the duty to compensate moral injury caused to the claimant by the insult shall be assigned to the respondent (article 130 of the Criminal Code of the Russian Federation, articles 150, 151 of the Civil Code of the Russian Federation).
10. Article 33 of the Constitution of the Russian Federation stipulates the right of persons to direct personal applications to the state bodies and institutions of local self-government which are obliged to examine these applications within the limits of their competence, to make the decisions on them and to give motivated answers within the terms prescribed by law.
For courts it is necessary to bear in mind, that in the case where the person addresses to the bodies named with the application, in which uses some information (for example, addresses to the law enforcement agencies with the information on the prospective, in his opinion, either committed or prepared crime), but this information have not found its confirmation during their control check up, the given circumstance in itself can not form the basis for charging this person with the civil-law responsibility stipulated by article 152 of the Civil Code of the Russian Federation as in the specified case the realization by the citizen of his/her constitutional right on the application to the bodies which by virtue of the law are obliged to check the information arrived, instead of distribution of the defamation not in conformity with the real state of things took place.
Such requirements can be satisfied only in the case where the court will establish that the application to the specified bodies had no basis under it and was dictated not by the intention to execute the civic duty or to secure rights and interests protected by law, but extremely by the intention to harm other person, that is an abuse of the right (items 1 and 2 of article 10 of the Civil Code of the Russian Federation) took place.
11. It is necessary for courts to take into account, that in a case when the information being the subject of the dispute was distributed in the cause of the hearings of the other case by persons participating in it, and also by witnesses concerning persons participating in the case, was considered the evidence for this case and was evaluated by court while rendering the decision, such information can not be challenged in the order stipulated by article 152 of the Civil Code of the Russian Federation as several norms of the Civil Procedure Code of the Russian Federation and the Criminal Procedure Code of the Russian Federation establish special order of studying and evaluation of the evidence given. Such requirement, in its essence, is the requirement on repeated judicial examination of such information, including reassessment of evidence to the cases considered earlier.
If such information was distributed in the cause of the hearings of the case by the persons mentioned above concerning other persons not being participants to the litigation, these persons considering such information being not in conformity with the real state of things and discrediting them, can protect their rights in the order stipulated by article 152 of the Civil Code of the Russian Federation.
12. It is necessary to attract the courts’ attention to the fact that the list of cases of exemption from the responsibility for the distribution of doubtful damaging information contained in article 57 of the Law of the Russian Federation «On the Mass Media » is exhaustive and is not subject to the broad interpretation. For example, the reference of the representatives of mass media to the circumstance that the publication represents the promotional material can not form the basis for their exemption from the responsibility. By virtue of article 36 of the Law of the Russian Federation «On the mass media» advertising in mass media is carried out in the order prescribed by the legislation of the Russian Federation on advertising. According to article 1 item 1 of the Federal Law dated July, 18, 1995 No. 108-ÔÇ «On Advertising» one of the main objectives of such law is prevention and suppression of the inadequate advertising, capable of injuring honour, dignity or business reputation of citizens. Proceeding from this, if the promotional material contains damaging information being not in conformity with the real state of things, persons and organizations which have presented the given information can be charged with the responsibility on the basis of article 152 of the Civil Code of the Russian Federation if they do not prove that this information is in conformity with the real state of things. At satisfaction of the claim even in case where is the basis for the exemption of the mass media from the responsibility the duty can be assigned to the editorial staff of mass media to inform about court decision.
At application of article 57 of the Law of the Russian Federation «On the Mass Media» courts should take into account those changes in the legislation of the Russian Federation that took place from the moment of adoption of the Law. Proceeding from this item 3 of part 2 of the article specified, should be understood as concerning the information contained in the answer to the inquiry or in the materials of the press-services not only of the state bodies, but also the bodies of local self-government. Similarly item 4 of part 2 of the article given concerns verbatim reproduction of the fragments of statements of the members of elective bodies of state power and local self-government.
13. At the consideration of the claims directed against the editorial staff of mass media, its author or founder, on charging them with the responsibility stipulated by article 152 of the Civil Code of the Russian Federation for distribution of the defamation not in conformity with the real state of things, it is necessary to take into account, that in a case when the release of mass media in which such information was distributed, is stopped for the period of consideration of the dispute, the court has the right to impose an obligation to the respondent to give a refutation at his own expense or to pay for the publication of the answer of the claimant in the other mass media.
14. In view of the fact that the requirements on protection of honour, dignity and business reputation are requirements on protection of non-property rights, by virtue of article 208 of the Civil Code of the Russian Federation they are not subject to limitation of actions, except for the cases prescribed by the law.
It is necessary for courts to take into account, that according to articles 45 and 46 of the Law of the Russian Federation «On the Mass Media» refusal of the editorial staff of mass media in a refutation of damaging information not in conformity with the real state of things distributed by it or in the answer (the comment, a retort) of the persons concerning whom mass media distributed such information, can be appealed against in court within one year from the date of distribution of the specified information. Therefore missing without excuse one year term named can form the independent basis for refusal in satisfaction of the claim on recognition of refusal of the editorial staff of mass media in a refutation of the information distributed by it, and publication of the answer of the claimant in the same mass media unreasonable. At the same time the person concerning whom such information was distributed has the right to bring an action against the editorial staff of mass media on protection of honour, dignity and business reputation without restriction of term.
15. Article 152 of the Civil Code of the Russian Federation gives the person concerning whom the information discrediting his/her honour, dignity or business reputation is distributed, the right to demand the indemnification of moral injury alongside with a refutation of such information. The given rule in part, concerning business reputation of the person, is accordingly applied also to the protection of business reputation of legal entities (article 152 item 7 of the Civil Code of the Russian Federation). Therefore the rules, regulating indemnification of moral injury in connection with distribution of the information discrediting business reputation of the person, are applied also in case of distribution of such information concerning legal entity.
Indemnification of moral injury is determined by court at rendering the decision in money terms. At definition of the size of indemnification of moral injury courts should consider the circumstances specified in part 2 article 151 and item 2 of article 1101 of the Civil Code of the Russian Federation, and other relevant circumstances. If the defamation not in conformity with the real state of things is distributed in mass media, court, determining the size of indemnification of moral injury, should take into account the character and the contents of the publication, and also a degree of distribution of doubtful information. Thus the sum of indemnification of moral injury subject to collecting should be proportional to the injury caused and not lead to the infringement of freedom of the information.
The requirement about indemnification of moral injury can be declared independently if, for example, editorial staff of mass media has voluntary published a refutation, satisfying the claimant. This circumstance should be taken into account by court at determination of the size of indemnification of moral injury.
Courts should bear in mind, that moral injury being defined by court in a concrete monetary sum, is regarded as non-property injury by the Law and, hence, the State Duty Tax shall be taken on the basis of sub-item 3 item 1 of article 333-19 of the Tax Code of the Russian Federation, instead of taking it in percentage to the sum determined by court as indemnification of moral injury caused to the claimant.
16. In a case when the request on the indemnification caused by the distribution of damaging information is declared together with the request on protection of honour and dignity of the person or business reputation of the person or legal entity, the court resolves this request according to article 15 and items 5, 7 of the article 152 of the Civil Code of the Russian Federation.
17. At satisfaction of the claim the court is obliged to specify in the resolutive part of the decision a way of refutation of the defamation being not in conformity with the real state of things and to state the text of such refutation if necessary where it should be specified which information is not in conformity with the real state of things, when and how it was distributed and also to determine the term (with reference to the article 44 of the Law of the Russian Federation «On the Mass Media») during which the refutation should follow.
The refutation distributed in mass media according to article 152 of the Civil Code of the Russian Federation, may be vested with the form of the report on the judgement rendered in the case given, including the publication of the text of the judgement.
18. It is necessary to attract courts’ attention to the fact, that on the basis of article 152 of the Civil Code of the Russian Federation judicial protection of honour, dignity and business reputation can be carried out by a refutation of the defamation being not in conformity with the real state of things, putting on the infringer a duty of payment of monetary indemnification of moral injury and compensation of other losses. Thus it is necessary to take into account, that indemnification of moral injury and losses in case of satisfaction of the claim are subject for collecting for the benefit of the claimant, instead of other persons specified by him.
Under part 3 of Article 29 of the Constitution of the Russian Federation nobody can be forced to the expression of his opinions and beliefs or refusal of them. The apology as a way of judicial protection of honour, dignity and business reputation is not stipulated by article 152 of the Civil Code of the Russian Federation and other norms of the legislation, therefore the court has no right to oblige respondents under this category of cases to apologize before claimants in any form.
At the same time the court has the right to ratify friendly settlement according to which the parties have in consent provided for bringing an apology by the respondent in connection with the distribution of the defamation being not in conformity with real state of things concerning the claimant as it does not break rights and legitimate interests of other persons and does not contradict with the law which does not contain such a provision.
19. In connection with adoption of the given decision to recognize the decision of the Plenum of the Supreme Court of the Russian Federation dated August, 18, 1992 No. 11 «On Some Questions Which Have Arisen At the Disposal of Cases On Protection Of Honour And Dignity Of Persons, And Also Business Reputation Of Persons And Legal Entities» in edition of the decision of the Plenum dated December, 21, 1993 No. 11, with changes and amendments made by the decision of the Plenum Dated April, 25, 1995 No. 6 as lost its force.
The chairman of the Supreme Court
of the Russian Federation V.M.Lebedev
The secretary of the Plenum, the judge
of the Supreme Court
of the Russian Federation V.V.Demidov