Damage to the business reputation of the organization. Protection of the business reputation of a legal entity in court. Practice of dispute resolution. Information detrimental to the business image must be disseminated

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On October 1, 2013, changes to the Civil Code came into force, which prohibited legal entities from seeking compensation for moral damage. In March of this year, the Presidium of the Supreme Court stated that legal entities can protect their reputation by refuting published information and recovering damages. But St. Petersburg University decided that it still has the right to millions in compensation for damage caused to the university’s business reputation from an incriminating article in an online publication. The case reached the Supreme Court, which explained why the prohibition on legal entities from seeking compensation for moral damage does not prevent them from demanding compensation for damage caused to the company’s reputation.

Refutation is not enough to restore justice

The administration of the St. Petersburg State University of Trade Unions was outraged by the publication of the local media - Zaks.ru. The note cited the position of the youth public organization "Vesna", which accused the rector of the university, Alexander Zapesotsky, of violating the constitutional right of students to freedom of speech.

A year and a half after publication, the University filed a claim with the Arbitration Court of St. Petersburg and the Leningrad Region to protect business reputation against the editors of the site and its founder (case No. A56-58502/2015). The applicant demanded that the following information be declared untrue and discrediting the business reputation of the university: "The administration of the St. Petersburg Humanitarian University of Trade Unions (SPbSUP) and the rector Alexander Zapesotsky violate Article 29 of the Constitution, which guarantees citizens freedom of speech". These are the words of representatives of the “Spring” movement that the publication quoted.

In addition, the plaintiff asked to oblige the defendant to remove the article from the publication’s website, post a refutation and recover 1 million rubles from the media. as compensation for damage caused to the business reputation of the university.

The first instance recognized that the material discredits the business reputation of the university, but refused to collect millions in compensation. According to the court, the plaintiff did not present evidence that confirms the real negative consequences of the published article for the reputation of the university. Judge Svetlana Astritskaya only decided to remove the controversial material from the publication’s website, publish a refutation and collect 6,000 rubles in favor of the university. for state duty.

The appeal came to a different conclusion and satisfied the plaintiff's claims in full. In its decision, the appellate court referred to the fact that defendants in such disputes can be not only the authors of statements, but also those who disseminated this information (clause 5 of the Resolution of the Plenum of the Supreme Court of February 24, 2005 No. 3 “On judicial practice in cases of protection of the honor and dignity of citizens, as well as the business reputation of citizens and legal entities"). The Arbitration Court of the North-Western District overturned the appeal decision and upheld the first instance act.

VS: "Legal entities can compensate for reputational damage"

The university did not agree with the district court's decision and appealed it to the Supreme Court in order to have the appeal act upheld. Lawyer Alexander Makarov from Reznik, Gagarin and Partners law firm, representing the interests of the plaintiff, at the court hearing assured that in the process there was a substitution of concepts: “The courts indicated that the plaintiff does not have the right to compensation for moral damage, but the applicant asked for something else - to compensate for the reputational damage caused, the content of which differs from the first.” .

The lawyer emphasized that Art. 152 of the Civil Code (“Protection of honor, dignity and business reputation”) in the current version does not exclude the recovery of reputational intangible damage in favor of a legal entity. The Supreme Court then denied the applicant, upholding the acts of the first instance and the district court. Thus, the media will not have to pay millions in compensation (see).

In its act, the Supreme Court points out that the prohibition on legal entities from seeking compensation for moral damage does not prevent them from demanding compensation for damage caused to the company’s reputation. In support of their position, the judges of the Supreme Court refer to the Determination of the Constitutional Court of December 4, 2003 No. 508-O: “The absence of a direct indication in the law of the method of protecting the business reputation of legal entities does not deprive them of the right to make claims for compensation for losses, including intangible ones caused by derogation of business reputation, or intangible damage that has its own content”.

The Judicial Collegium for Economic Disputes of the Supreme Court explains why it refused to satisfy the university’s demands: the plaintiff did not prove a certain level of his business reputation and its derogation.

Pravo.ru experts: “In essence, the dispute was resolved correctly”

Dmitry Seregin, advisor to the law firm "YUST", explains that in the Civil Code, moral harm refers mainly to physical and moral suffering: “In this sense, moral harm really cannot be caused to a legal entity.” However, harm to business reputation should be distinguished from moral damage, for example, a decrease in trust in a legal entity due to the dissemination of defamatory information, Seryogin emphasizes: “In this case, the injured legal entity may demand compensation for losses, but for this it must prove the fact of their occurrence, connection with undermining their reputation and justifying the size."

Anatoly Semenov, public ombudsman for the protection of the rights of entrepreneurs in the field of intellectual property, considers the reference of the Supreme Court to the decision of the Constitutional Court controversial. In his opinion, the Constitutional Court in its Determination indicated not the admissibility of applying “compensation for moral damage” by analogy, but the possibility of demanding “compensation for losses.” The word “compensation” in this context does not mean a special sanction, but is synonymous with “compensation” or “penalty,” the lawyer believes. Semenov doubts that the position of the Constitutional Court in this case can overcome the direct instructions of the law and create a new category of “intangible losses.”

Pavel Khlustov, lawyer, partner at Barshchevsky and Partners, I am sure that the dispute has been resolved correctly on the merits, but the legal basis for the stated claim as intangible damages is incorrect. The expert considers any statements that, by its legal nature, compensation for moral damage to a legal entity to be some kind of “intangible losses”, are doubtful, given the absence of a corresponding norm in the current legislation. In addition, we should not forget that the recovery of moral damage or non-material damages by their legal nature is a measure of legal liability, explains Khlustov: “The latter can only occur for those acts that are recognized as offenses by the law in force at the time of their commission (Article 54 Constitution)". The speaker reminds that a legal entity can demand recovery of damage caused to its business reputation, using the rules on the recovery of damages: “And not the provisions that regulate compensation for moral damage, or the “intangible damages” that grate on the ears of every lawyer.”

Legal entities have the right to seek compensation for damage to their reputation. In this case, the plaintiff has the burden of proving two circumstances: firstly, that he has an established reputation in one or another area of ​​business relations (industry, business, services, education, etc.), and secondly, the occurrence of unfavorable events for him consequences as a result of the dissemination of defamatory information, the fact of loss of confidence in his reputation or its decline. The Supreme Court of the Russian Federation came to these conclusions in Ruling No. 307-ES16–8923 dated November 18, 2016 in case No. A56-58502/2015.

The crux of the matter

An article was published on the website of one online publication on the Internet entitled “Spring: Zapesotsky violates Article 29 of the Constitution,” containing, among other things, the following information: “The administration of the St. Petersburg Humanitarian University of Trade Unions (SPbSUP) and rector Alexander Zapesotsky violate 29 -th article of the Constitution, guaranteeing citizens freedom of speech.”

Having learned about the publication, St. Petersburg State Unitary Enterprise filed a lawsuit against the editors of the online publication and its founder for the protection of business reputation and recognition of the information contained in the article as untrue and discrediting the business reputation. The plaintiff demanded that the founder of the publication and the editors be obliged to remove the article from the site, post the text of the refutation in the public domain, and also recover 1 million rubles from the founder of the publication. as compensation for damage caused to the business reputation of the university in connection with the publication of untrue information.

Trial

The court of first instance satisfied the stated requirements partially. He recognized the information posted on the website of the online publication as untrue and discrediting the business reputation of the university and ordered the online publication to remove the controversial article and post the text of the refutation on the main page of the site in the public domain, ensuring that the refutation is communicated to any Internet user, in the same font and under the heading “ Refutation." The rest of the claim was rejected.

The court motivated the refusal to satisfy the demand for compensation for causing reputational damage to the university as follows. The damage caused to a legal entity is of a property nature, which excludes the possibility of awarding non-property damage to a legal entity, no matter in what form it may be expressed. The university has the right to make a claim for compensation for damages caused by disparagement of business reputation or non-material damage. Meanwhile, he did not provide evidence that the information disseminated by the defendant led to such consequences as a result of which the university suffered property losses in the declared amount.

The appeal changed the decision of the court of first instance, satisfying the university’s demand to recover compensation from the founder of the publication for damage to business reputation. Justifying its decision, the court referred to the legal positions set out in the Determination of the Constitutional Court of the Russian Federation dated December 4, 2003 No. 508-O and the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 17, 2012 No. 17528/11. As he noted, a legal entity whose right to a business reputation is violated by actions to disseminate information discrediting such reputation has the right to demand compensation for intangible (reputational) damage if the general conditions of tortious liability are proven:

the fact that the defendant disseminated information about the plaintiff;

the defamatory nature of this information;

discrepancies between this information and reality.

In the case under consideration, the court considered the existence of these conditions to be proven.

The cassation overturned the appeal ruling, leaving the decision of the first instance court in force. As the district arbitration court emphasized, the university did not provide evidence that after the publication of the controversial article, consumer demand for the services provided to them decreased or other negative consequences occurred, nor did it provide arguments to confirm the existence of a causal connection between the damage to business reputation and the disputed information.

Position of the RF Armed Forces

The Supreme Court of the Russian Federation upheld the ruling of the cassation court. At the same time, he made an important conclusion about the right of legal entities to seek compensation for damage to their reputation. According to the RF Supreme Court, when considering this dispute it was necessary to take into account the following circumstances.

Harm caused to the person or property of a citizen, as well as harm caused to the property of a legal entity, is subject to compensation in full by the person who caused the harm (clause 1 of Article 1064 of the Civil Code of the Russian Federation). By virtue of the provisions of Art. 1082 of the Civil Code of the Russian Federation, the court, in accordance with the circumstances of the case, obliges the person responsible for causing the harm to compensate for the harm in kind (provide a thing of the same kind and quality, correct the damaged thing, etc.) or compensate for the losses caused (clause 2 of Article 15 Civil Code of the Russian Federation). Thus, as part of the defense of his violated right, a citizen in respect of whom information discrediting his honor, dignity or business reputation has been disseminated, along with a refutation of such information or publication of his response, has the right to demand compensation for losses and compensation for moral damage caused by the dissemination of such information (clause 9 Article 152 of the Civil Code of the Russian Federation). In paragraph 11 of Art. 152 of the Civil Code of the Russian Federation determines that the rules on the protection of a citizen’s business reputation, with the exception of provisions on compensation for moral damage, are respectively applied to the protection of the business reputation of a legal entity.

According to the Supreme Court of the Russian Federation, the entry into force of October 1, 2013 of the new version of Art. 152 of the Civil Code of the Russian Federation, which excludes the possibility of compensation for moral damage in the event of derogation of the business reputation of legal entities, does not interfere with the protection of the violated right by means of a legal entity filing a claim for compensation for damage caused to the reputation of the legal entity.

This conclusion follows from the above Determination of the Constitutional Court of the Russian Federation dated December 4, 2003 No. 508-O, which notes that the absence of a direct indication in the law of the method of protecting the business reputation of legal entities does not deprive them of the right to make claims for compensation for losses, including intangible ones caused by disparagement of business reputation, or intangible harm that has its own content (different from the content of moral harm caused to a citizen), which follows from the essence of the violated intangible right and the nature of the consequences of this violation (clause 2 of Article 150 of the Civil Code of the Russian Federation).

Damage caused to business reputation should be understood as any derogation of it, which manifests itself, in particular, in the presence of losses for a legal entity due to the dissemination of defamatory information, and other adverse consequences in the form of loss by a legal entity in the eyes of the public and the business community of a positive opinion about it business qualities, loss of competitiveness, inability to plan activities, etc.

Consequently, a legal entity whose right to a business reputation has been violated by actions to disseminate information discrediting such a reputation has the right to demand restoration of its right if the general conditions of tortious liability are proven (the presence of an unlawful act on the part of the defendant, the adverse consequences of these actions for the plaintiff, a causal relationship between the actions of the defendant and the occurrence of adverse consequences on the plaintiff’s side) (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 17, 2012 No. 17528/11). The presence of the defendant’s guilt is presumed (clause 2 of Article 1064 of the Civil Code of the Russian Federation).

In this case, the unlawful nature of the defendant’s actions must be expressed in the external dissemination (communication to at least one person), in particular through publication, public speaking, dissemination in the media and the Internet, using other means of telecommunications, certain information about the plaintiff that is defamatory and inappropriate actual character.

Meanwhile, the mere fact of dissemination by the defendant of information discrediting the business reputation of the plaintiff is not enough to conclude that damage to business reputation has been caused and to pay monetary compensation in order to compensate for unjustified disparagement of business reputation. The plaintiff has the obligation to prove the circumstances to which he refers as the basis for his claims. He must confirm, firstly, the presence of an established reputation in one or another area of ​​business relations (industry, business, services, education, etc.). Secondly, the onset of adverse consequences for him as a result of the dissemination of defamatory information, the fact of loss of confidence in his reputation or its decline.

To substantiate its position on the merits of the stated claim for compensation for reputational damage, the university referred to the form used by the defendants of disseminating defamatory information on the Internet, providing an indefinite and unlimited number of users with free access to the site on which the disputed information was published. However, the plaintiff did not submit any evidence and explanations indicating the plaintiff’s established reputation before the violation and evidence to establish the existence of adverse consequences for the university as a result of the placement of the controversial publication.

Thus, the court did not have evidence on the basis of which it could establish that the mere recognition of the fact of dissemination of defamatory information and a court decision to refute it are not enough to restore the balance of rights of the participants in the disputed legal relations, as well as determine the amount of fair compensation. Under such circumstances, the refusal of the district court to recover compensation for the dissemination of information that does not correspond to reality and discredits the business reputation of the university is, in the opinion of the Supreme Court of the Russian Federation, justified.

The current Civil Code contains three references to the right of legal entities to protect business reputation. The first is contained in Art. 152, the second refers to the agreement on a commercial concession (Article 1027), the third is indicated in Art. 1042 and relates to a simple partnership. Next, let's look at how it's done protection of honor and business reputation of legal entities.

General information

Based on the standards specified above, it is possible to determine the key features of business reputation.

First of all, it is Secondly, reputation is endowed with the sign of transferability. Thirdly, the protection of business reputation of individuals and legal entities is carried out in identical ways.

In addition, it is endowed with the sign of alienation. However, it manifests itself only in the entrepreneurial sphere. Alienation of reputation occurs when a transaction is made with an enterprise that acts as a property complex. The possibility of transfer of reputation is determined by the fact that the organization includes a commercial designation. Also, the alienation of reputation occurs along with the transfer of a trademark.

It is also of particular importance. Its value is the amount of the price premium paid by the acquirer in anticipation of future economic profit in connection with the purchased unidentifiable assets.

The importance of reputation

Business reputation is one of the essential conditions for the successful activities of a legal entity. Its special significance is enshrined at the legislative level. Various regulations establish rules to ensure protection of the business reputation of a legal entity. Article 3.1 of the Administrative Code, for example, contains a regulation that the purpose of an administrative sanction cannot be to cause harm to reputation. In Art. 14 Federal Law No. 135 prohibits unfair competition. In particular, the dissemination of false, distorted information about business reputation that could cause damage to the company.

Jurisdiction

Claims for protection of business reputation, arising from legal relations in the field of entrepreneurial or other economic activity, are considered by the arbitration court. In this case, the subject composition of the dispute does not matter. If there is a need for protection of honor, dignity and business reputation arose within the framework of other legal relations, then the case is within the jurisdiction of the general jurisdiction. In this case, the subject composition also does not matter.

Grounds for filing a claim

According to Article 152 of the Civil Code of the Russian Federation, a legal entity can send an application to the court if there are a combination of three circumstances: there has been a fact of dissemination of information about the organization, the information is defamatory and does not correspond to reality.

The Supreme Court in Resolution No. 3 of 2005 reveals the essence of these circumstances.

The concept of “information dissemination” is interpreted quite broadly. It can be carried out, for example, on radio, TV, in the press, public speeches, messages addressed to certain officials in written or oral form, on the Internet, etc.

Information that does not correspond to reality is statements about events/facts that did not take place in reality during the period to which they relate.

For example, information that contains a statement about a legal entity’s failure to comply with legal requirements, dishonesty in conducting business activities, or violation of business ethics and customs is defamatory. All this information detracts from the reputation of the organization.

The Supreme Court draws attention to the need to differentiate statements about facts and events, the correspondence of which to reality can be verified, and opinions, value judgments, beliefs that are not the subject of protection under Article 152 of the Civil Code of the Russian Federation. The latter are an expression of the subjective views of a certain person. They cannot be verified to be true.

Nuances

If information discrediting the reputation of the organization was published in the media, the victim may demand a refutation in the same media. If such information is present in a document emanating from the enterprise, then the legal entity has the right to demand the cancellation or replacement of such an act.

Ill-wishers can disseminate in the media data that violates the interests or rights of the organization, but is not vicious. In such situations, in accordance with paragraph 3 of Article 152 of the Civil Code of the Russian Federation, a legal entity may publish its response in the same media.

Losses

Within protection of the business reputation of a legal entity in judicial practice claims for compensation for damage resulting from the dissemination of defamatory information are being considered. Losses also include lost income.

When collecting, legal entities often face certain difficulties and, in some way, injustice. Difficulties are associated with compensation for lost profits. The injustice is expressed in the fact that even if the demands for recovery are satisfied, the compensated loss will not be able to cover all losses, since the impact of the defamatory message can be quite long-lasting.

If there is a need for protection of business reputation of a legal entity arose as a result of the dissemination of information in the print media, then over time the relevance of this information will decrease. However, relevant information can be accessed on the Internet without any restrictions.

Compensation for moral damage

With its help, the issue of injustice in meeting basic requirements can be resolved. protection of business reputation of a legal entity. Meanwhile, the organization, being an artificial formation, essentially cannot experience either physical or moral suffering. Consequently, the company cannot demand compensation for moral damage. This conclusion is confirmed by judicial practice.

However, since 2003, a slightly different trend has been observed. The turning point was the adoption of the Decree of the Constitutional Court No. 508-O of 2003. It contains opportunities protection of business reputation of legal entities persons were significantly expanded. In particular, the Constitutional Court indicated that:

• The applicability of a specific method of restoring a violated right must be determined solely in accordance with the nature of the organization.
• Lack of direct reference to a particular instrument in the legislation protection of business reputation of a legal entity does not deprive him of the right to make a claim for compensation for losses, intangible, including those arising in connection with the dissemination of defamatory information, or intangible damage that has its own content, different from the essence of the harm caused to the citizen.

In its Determination, the Constitutional Court referred to the ECHR ruling of 2000, in which it indicated that the possibility of satisfying the claims of a commercial organization for compensation for moral damage cannot be excluded.

Case studies

It is worth noting that the concept of “intangible losses” is not used in domestic legislation. According to the provisions of Article 15 of the Civil Code, losses are always material. At the same time, this concept reflects the characteristics of the harm caused to a commercial structure.

There are many illustrative examples on this issue in judicial practice. Thus, the subject of one of the disputes was information discrediting the business reputation of the bank. The courts, including the appellate court, spoke in favor of collecting non-material (reputational) damage from the violator of rights. When satisfying the claim, the arbitration indicated that the harm was expressed in the loss of trust in the financial organization on the part of clients. This resulted in an outflow of funds. The court also agreed with the bank’s argument that the amount of reduction in the size of the deposit base serves as a measure of derogation of its business reputation.

In another dispute, the plaintiff was denied compensation for reputational damage. However, the cassation court overturned the previously adopted decisions and sent the case for a new trial. The Court of Appeal stated that an organization cannot experience suffering, either physical or mental. The legislation, in turn, does not establish the possibility of compensation for moral damage to legal entities.

This conclusion is contrasted by the position of another arbitration court. He pointed out that Article 12 of the Civil Code contains a provision providing for compensation for moral damage, as well as allowing the use of other methods of defense established by federal law.

In development of this norm, in paragraph 5 of Art. 152 of the Civil Code contains an indication of the possibility of a citizen to demand compensation for non-material damage within the framework protection of honor, dignity and business reputation. According to paragraph 7 of the same norm, the rules of the article also apply to cases of protecting the reputation of a legal entity. The Arbitration Court also referred to the provisions of the Constitutional Court Determination No. 508-O. In fact, the court concluded that there is such a method of protection in the law as compensation for reputational damage, but under a different name - “compensation for moral damage.”

Conclusions

As can be seen from the above examples, judicial practice on issues of compensation for moral damage is very contradictory. This is due, first of all, to insufficiently clear regulatory regulation.

The fact is that the legislator put the first part of the Civil Code into effect in 1994. At that time, market relations were just beginning to emerge. The developers of regulations did not then imagine that the reputation of legal entities would soon acquire such importance. With the development of market relations, the need arose for a detailed study of issues related to provision of legal services to legal entities in the field of protecting their reputation.

Criminal law

Application for the protection of business reputation of a legal entity may also be filed as part of criminal proceedings. This possibility is provided for under Article 42 of the Code of Criminal Procedure. If a crime causes harm to the reputation of an organization, it may be recognized as the injured party. Accordingly, for protection, the facts of the commission of an unlawful act and the occurrence of damage must be established.

Crimes that can harm the reputation of a legal entity include:

• Illegal use of means of identification (trademark, in particular).
• Illegal receipt and disclosure of tax, banking, and commercial secrets.

Controversial issues

To ensure the protection of its reputation, a legal entity in the framework of criminal proceedings may file a claim for compensation for material damage if there is reason to believe that it was caused by a crime.

Article 44 of the Code of Criminal Procedure contains a provision providing for the possibility of the victim to file a civil claim for compensation for moral damage. Compensation for such damage, as follows from the above reasoning, can take place in the framework of civil proceedings. However, a similar conclusion cannot be drawn regarding criminal trials.

When damage to business reputation occurs, non-contractual obligations arise related to its compensation. Their regulatory regulation is provided for by the norms of Chapter 59 of the Civil Code.

At the same time, the Code contains Article 1064, which is of a general nature in regulating obligations related to compensation for harm. This norm states that damage caused to the property of an individual or legal entity must be fully compensated by the entity that caused it. Based on this, we can conclude that either reputation relates to property, or damage does not entail the emergence of non-contractual legal relations.

Due to the fact that Article 152 is contained in Chapter 8 of the Code, which is called “Intangible benefits and their protection,” the assumption that reputation is part of the property complex of a legal entity has no basis. An analysis of the content of Article 42 of the Code of Criminal Procedure leads to a similar conclusion. It states that an organization is also recognized as a victim if its property and reputation were damaged by a crime.

Deadlines

Due to the fact that the claim to protect the reputation of an organization is aimed at restoring a non-property right, the statute of limitations does not apply to it, according to Article 208 of the Civil Code. However, there are exceptions to this rule.

If defamatory information was disseminated in the media, then the legal entity may demand that the editorial office publish a refutation. If this is denied to the applicant, he has the right to go to court to challenge the inaction of the rights violator. In this case, the application can be submitted within a year from the date of dissemination of the relevant information.

Features of the content of the claim

The application is drawn up according to the general rules. The claim must indicate:

• The name of the authority authorized to consider such disputes.
• Information about the plaintiff: name, location, contact details.
• Information about the defendant. They can be a legal entity or a citizen. In the first case, the name of the location and contacts are also indicated, in the second - full name, residential address, telephone number (if known).

The text of the claim briefly summarizes all the circumstances of the case. It is recommended to present information in chronological order. It is important to avoid emotional statements in the text. The claim must be written in business official language.

Legal assistance

As a rule, the enterprise provides for the position of a legal adviser or employs an employee who deals with legal issues. In the absence of such people, the manager can contact a competent law firm. In addition, the activities of many privately practicing lawyers provide provision of legal services to legal entities. It is important to choose an experienced representative who understands the intricacies of legal proceedings in such cases.

Facts to be proven

As mentioned above, there are three such facts. Their presence must be documented. For example, the fact of dissemination of defamatory information in the media is confirmed directly by the publication itself. If it was an article in a newspaper, then a copy of the corresponding page is attached to the case materials. If the information was published on the Internet, you must take a screenshot of the site and print it.

It should be said that distribution is the communication of information to third parties. Therefore, if the information was received only by a legal entity and did not reach third parties, there is no subject of dispute.

The inconsistency with reality and falsity of information must also be confirmed. The plaintiff must provide a refutation, the reliability of which will be assessed by the court. If necessary, experts may be involved.

According to general rules, the defendant does not have to prove anything. However, in such cases he will have to provide evidence of his rightness, legality and validity of his actions.

As practice shows, most of these cases are resolved in favor of the plaintiffs.

Specifics of execution of the decision

The key purpose of going to court is to force the defendant to publish a refutation of information that discredits the plaintiff's reputation.

If the request is satisfied, the operative part of the decision will contain the text of the refutation and indicate the period within which the defendant must publish it. In addition, the court may determine the period during which the information must be in the relevant media.

It must be said that the refutation is published in the same place where the defamatory information was located. For example, if a newspaper article was on the front page, then a refutation should be placed there as well. A similar rule applies to online media.

Conclusion

Questions about protecting the reputation of legal entities are of particular relevance today. Business reputation is regarded as a specific intangible asset. It can have a direct impact on the performance of the organization.

A positive reputation helps to attract partners and clients, expand business, and increase economic profit. In market conditions, consumers and counterparties trust more those companies that have been able to establish themselves as successful and law-abiding participants in the turnover. A negative reputation has a negative impact on the company's status. Insurmountable barriers may arise between the legal entity and potential partners and clients.

It is worth saying that even after publishing a refutation of defamatory information, the organization will have to restore its customer base for some time. Some counterparties are of the opinion that no one will publish defamatory information without good reason. The injured organization can only continue to work, proving its integrity with specific activities.

We protect the company's business reputation

The company may face a situation where it will have to defend its business reputation in court. The very concept of “business reputation” has many complex scientific definitions. In general, we can say that this is the “good name” of the company. Let's consider ways to protect the good name of a company, as well as judicial practice on this issue.

Untrue and defamatory information

Information disseminated about a legal entity may either be untrue or discredit its good name.

Lev Lyalin,
honorary lawyer, member of the Presidium of the Moscow Regional Bar Association

Untrue information is statements about facts or events that did not take place in reality at the time to which the information relates. At the same time, from a legal point of view, information contained in court decisions, sentences, decisions of preliminary investigation bodies and other procedural or official documents is not considered untrue. A different legally established procedure is provided for their appeal and challenge. For example, in the appellate and cassation courts of courts of general jurisdiction and arbitration courts.

Defamatory, in particular, are false or unreliable information containing allegations about the company violating the current legislation, committing a dishonest act, displaying dishonesty in the conduct of production and economic activities, violating business ethics or business customs that detract from the business reputation of the company.

The dissemination of information that is untrue and discredits business reputation should be understood as its publication in the press, broadcast on radio and television, demonstration in newsreels and other media (hereinafter referred to as the media), as well as posting on the Internet, mention in public speeches and statements , addressed to officials, a message in one form or another (including orally) to at least one person. At the same time, it does not constitute dissemination of defamatory information if, when communicating to the person concerned, sufficient confidentiality measures were taken so that nothing became known to third parties.

Protection rules

Disputes regarding the protection of the business reputation of legal entities related to their economic activities are subject to the jurisdiction of arbitration courts. The company's claims regarding the protection of honor, dignity and business reputation of its employees are beyond the jurisdiction of the arbitration court.

The company’s business reputation is subject to protection according to the rules on the protection of a citizen’s business reputation, with the exception of provisions on compensation for moral damage. In practice, this means that the company cannot go to court for compensation for moral damage. She is only entitled to compensation for damages.

<...>9. As a result, the responsibility to prove the accuracy 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 defamatory nature of this information.<...>

Methods of protection

The company has the right to challenge the dissemination of any information that does not correspond to reality, and not just that which discredits its business reputation. According to the law, in order to limit the spread of false information, it is not necessary to prove that it adversely affected the reputation.

• refutation of false information;
• publishing your response in the same media;
• replacement or revocation of a document containing untrue information;
• removal of unreliable information that discredits a good name, as well as suppression or prohibition of further dissemination of false information by seizing and destroying, without any compensation, copies of material media containing the specified information made for the purpose of introducing into civil circulation;
• deleting relevant information, as well as refuting false information in a manner that ensures that the refutation is communicated to Internet users;
• compensation for losses.

In addition, if it is impossible to identify the person who disseminated false information, the company has the right to apply to the court under the rules of special proceedings with a statement to recognize the disseminated information as untrue.

When preparing a claim for the protection of business reputation, you must be guided by:

• – Civil Code;
• Law of the Russian Federation of December 27, 1991 No. 2124-1 "" (hereinafter referred to as the Law on Mass Media), in particular Articles 2, 43-46, 57;

If untrue or defamatory information was published in the media or on the Internet on an information resource registered as a media outlet, it is necessary to use the legislative norms related to this field of activity. When preparing claims, it is very important to check them for compliance with the list of cases in which the media are exempt from liability for the dissemination of false information. These are cases when such information:

<...>3. The Arbitration Procedural Code of the Russian Federation establishes special jurisdiction for arbitration courts in cases concerning the protection of business reputation in the field of business and other economic activities. Moreover, in accordance with Part 2 of this article, these cases are considered by arbitration courts, regardless of whether the parties to the legal relations from which the dispute or claim arose are legal entities, individual entrepreneurs or other organizations and citizens. Based on this, cases of protection of business reputation in the field of business and other economic activities are not within the jurisdiction of courts of general jurisdiction.<...>

I note that when a company files a claim, it must be prepared for the opposing party’s request to conduct a forensic linguistic examination in order to determine whether the controversial expressions in the context of the article are value judgments of the author and whether they are defamatory. It is advisable to have a corresponding expert opinion already at the time of filing claims in court. If it is not challenged by the opposing side, there is a good chance that the judges will consider it admissible evidence and refer to it in their decision.

If the dispute is won, a refutation of the information must be published in the same media that disseminated it. This applies to refutations both published on the basis of a judicial act and published voluntarily based on a corresponding request from an interested person.

A refusal to refute a claim may be appealed to a court within a year from the date of dissemination of information. If the management (editorial) of a media outlet refuses to voluntarily publish a company’s response, the refusal to publish it (as well as the refusal to rebuttal) can be challenged in court.

The “victim” party often asks the question: what is better, demanding a refutation or the right to reply? There is no universal recipe. I believe that a right of reply may be preferable (see sample drafting below). The fact is that, when refuting certain information, the court often takes it out of context and as a result, in the refutation published by the defendant, it is not always possible to understand what is being discussed, and the accompanying comments of the judicial act often nullify the refutation. The answer prepared by the “victim” of the attacks is, as a rule, more meaningful and logical in refuting the arguments of the opposite side.

The right to privacy and personal secrets is enshrined in the Constitution. This gives the citizen the legally guaranteed opportunity to control the dissemination of information about himself and to prevent the disclosure of personal information.

However, on the one hand, Article 29 of the Constitution of the Russian Federation guarantees citizens freedom of speech, thought and the right to disseminate information. On the other hand, according to Article 23 of the same Constitution, every citizen is given the right to protect his good name, honor and business reputation. Most claims for the protection of honor, dignity and business reputation arise as a result of the dissemination of false, untrue information about a person.

So, citizens (individuals) have such intangible benefits as honor, dignity and business reputation.

Honor is a positive reflection of the qualities of a citizen in the minds of others. Dignity can be defined as personal self-esteem based on evaluation by society.

There is no definition of reputation in civil law. It only mentions goodwill. And if reputation as such is understood as the established public opinion about a person, based on an assessment of his significant qualities, then business reputation should be understood as an assessment of his professional qualities.

Any entity carrying out any activity has a business reputation, and it can be harmed by the dissemination of untrue information that discredits it.

Information damaging to the business reputation of a legal entity can be disseminated by communicating it orally or in writing to one or more persons, including an indefinite number of persons. Moreover, the transfer of such information to persons whose interests it affects is not considered distribution.

Most often, defamatory information is disseminated en masse using the media. According to statistics, the media accounts for the majority of related claims. This category of cases is one of the most difficult, since it constantly raises the question of drawing a line between the personal opinions of journalists who allow certain statements, and the validity and severity of criticism of citizens, especially if they are public figures. Here, the cause of the conflict is often the lack of legal literacy of media management.

What are the ways of disseminating defamatory information? These include:

• publications in the press;
• radio and television messages;
• newsreel demonstration;
• posting text, audio and video materials on the Internet;
• distribution through other means of mass communications;
• presentation in job descriptions;
• statements during public speeches, as well as statements addressed to officials;
• communication in any form, including oral, to at least one person.

To recover compensation for moral damage, the plaintiff must prove the guilt of the causer and the intentionality of the latter’s actions with the aim of causing reputational damage.

The law does not require a mandatory pre-trial appeal to the perpetrator for a refutation of published information - such an action is carried out on a voluntary basis.

Typically, claims for the protection of honor, dignity and business reputation demand that the disseminated information be recognized as false, that a refutation be published, and that compensation be paid for moral damage caused. Sometimes, however, in the manner prescribed by Article 152 of the Civil Code of the Russian Federation, plaintiffs, without insisting on a refutation, demand in court only compensation for moral damage. However, in both cases the requirements for the evidence base are the same.

Proper defendants in claims for protection of honor, dignity and business reputation.

These include authors of false defamatory information and distributors. In cases of dissemination of controversial information by the media, according to paragraph 5 of the resolution of the Supreme Court of the Russian Federation No. 3, the authors and management of the relevant media are recognized as proper defendants.

Circumstances relevant in judicial consideration of claims for the protection of honor, dignity and business reputation:

• the fact that the defendant disseminated information about the plaintiff;
• the defamatory nature of such information;
• inconsistency with their reality.

Thus, by satisfying a claim for compensation for moral suffering, the court helps compensate for the harm caused to the moral health of the victim by the dissemination of information discrediting him.

In relation to legal entities, only the concept of business reputation is applied, on which the success of their activities depends. There can be no talk of any honor or dignity here.

As in cases of dissemination of information that damages the business reputation of a citizen, when disseminating such information about a legal entity, the same rules of challenge apply. Consequently, enterprises and organizations also have the right to receive compensation for moral damage caused to them. And in the event of damage to their business reputation, in accordance with Part 1 of Article 152 of the Civil Code of the Russian Federation, they have the right to demand from the distributor of false information a refutation if the latter cannot prove that he is right.

However, the provisions of Articles 151 and 152 of the Civil Code of the Russian Federation are in mutual contradiction. As stated in Article 151, moral harm can only be caused to an individual, since only living beings are capable of experiencing moral and physical suffering. There is a serious flaw on the part of legislators here. However, it is quite possible to cause indirect damage to the financial position of a legal entity by disseminating untrue information about it. Therefore, in matters of compensation for damage to the business reputation of enterprises and organizations, it is advisable to use the provision of Article 15 of the Civil Code of the Russian Federation and put forward a demand for compensation for lost profits.