Damage to the business reputation of the organization how to recover. The procedure for the protection of honor, dignity and business reputation. What is honor, dignity and business reputation

Protection of honor, dignity and business reputation — a procedure aimed at restoring a person's good name. Everyone has such a right in case of harm as a result of disclosure of defamatory information that does not correspond to reality. Read more about ways to protect honor and dignity in this article.

Protection of the honor and dignity of a citizen

Protection of honor and good name is the constitutional right of every Russian, regardless of age, gender, nationality, official position and other characteristics. This provision is enshrined in article 23 of the main law of the country and is duplicated by many regulatory legal acts. In particular, Article 152 of the Civil Code of the Russian Federation guarantees citizens judicial protection of honor, dignity and business reputation.

What is honor, dignity and business reputation?

honor - an assessment of a personality from the point of view of its perception by society, based on the social and spiritual qualities of a person;
dignity, on the contrary, means self-esteem, that is, a person's idea of himself as a person and an assessment of his own worth;
business reputation is a category applied mostly to legal entities, but it is also fair for citizens in terms of recognizing the professional and personal qualities of a person in aggregate.

How can harm to the honor and dignity of a citizen be expressed?

As follows from the provisions of Article 152 of the Civil Code of the Russian Federation, harm to honor, dignity or business reputation consists in the dissemination of defamatory information about a person. The way in which such information is disseminated does not matter.

The main condition for the emergence of the right to protect honor, dignity and business reputation is the discrepancy between the disclosed information and reality.

Important: it is the responsibility of the person who disseminated the information to prove the accuracy of the information. At the same time, in this case, the principle of the presumption of innocence is fully valid, that is, defamatory information is considered a priori false until the opposite is proven in a judicial or other procedure established by law.

A typical example is the disclosure of information that incriminates a person of committing a crime. In such a situation, despite the obviousness of the dissemination of information, without a court conviction that has entered into force, it is regarded as untrue.

Ways to protect honor, dignity and business reputation

Civil protection of honor (as well as dignity and business reputation) implies 2 types of consequences of its application:

public denial of defamatory information;
compensation for moral harm caused to a citizen as a result of spreading false information about him.

At the same time, one does not exclude the other, that is, the court, depending on the specific circumstances, has the right to apply both sanctions to the violator.

How to provide compensation for moral damage?

If, in order to achieve a refutation of defamatory information, it is enough to prove their falsity, then compensation for moral damage is allowed only on condition of causing physical or mental suffering to the victim.

In the case of encroachments on honor and dignity, we can only talk about moral suffering, which is very difficult to confirm and even more so to evaluate. The wording of the legislation in this regard is very vague and does not answer the question of how exactly the existence of suffering should be proved.

Don't know your rights?

In particular, Article 1101 of the Civil Code of the Russian Federation names as criteria for assessing moral damage:

the nature of moral suffering;
the degree of guilt of the person who caused them;
circumstances of violation of rights;
personality traits of the affected person.

A certain clarity is made by the resolution of the plenum of the RF Armed Forces "Some questions of the application of legislation on compensation for moral harm" No. 10 of 20.12.1994. The document indicates that moral harm may include, among other things, experiences associated with the loss of a job, the inability to continue the previous way of life, etc.

As the court practice shows, various circumstances can be regarded as the loss of the opportunity to continue the usual way of life, such as: exclusion from any public associations; refusal of the victim's environment to communicate with him, etc. - all this often takes place due to the dissemination of false and defamatory information.

As for the compensation itself, according to Article 151 of the Civil Code of the Russian Federation, it can be expressed exclusively in monetary form. The amount depends on the degree of harm caused and is determined by the court based on the requirements of the victim. There are no restrictions, as well as a unified position of the courts on this score.

In other words, the victim has the right to declare any amount in the claim, but this does not mean that the court will appoint it to be paid in full.

Important: you can go to court for the protection of honor, dignity and business reputation in terms of compensation for moral damage at any time: by virtue of Article 208 of the Civil Code of the Russian Federation, the statute of limitations does not apply to requirements relating to the protection of personal non-property rights.

Procedure for refuting false information

In accordance with article 151 of the Civil Code of the Russian Federation, the refutation of false information must be carried out in the same way in which it was disseminated. In addition, the norm contains several clarifying provisions:

in case of disclosure of defamatory information in the media, in addition to refutation, the victim has the right to demand the publication of his response or response there;
documents containing defamatory information are subject to revocation or cancellation (the provision applies to documents from specific organizations, for example, orders, orders, etc.);
if it is impossible to report the refutation to the general public due to the widespread dissemination of false information, the victim can count on its removal from all sources and blocking further dissemination by any means, including the destruction of material carriers;
when disseminating defamatory information on the Internet, at the request of the victim, they must be removed with the subsequent publication of a refutation.

Important: the inability to identify the person who disseminated false information does not deprive the victim of the right to defend his honor, dignity and business reputation. In such situations, he can apply to the court with a demand to recognize such information as untrue and to stop publishing refuting materials in the public domain.

In contrast to claims for compensation for harm, claims for the refutation of defamatory information are subject to the general limitation period, which is 3 years from the moment when the victim became aware of the violation of his rights.

The exceptions are claims related to the publication of false information in the media - here interested parties should hurry up, because the limitation period in this case is limited to 1 year from the date of publication of the defamatory information.

Other forms of protection of honor, dignity and business reputation

Protection of honor, dignity and business reputation, in addition to civil, is guaranteed by the norms of criminal and administrative law.

So, humiliation of the honor and dignity of a person, if these actions are expressed in an indecent form, are qualified as an insult and are punished in accordance with Article 5.61 of the Administrative Code of the Russian Federation.

The amount of fines stipulated by the norm varies from 1,000 to 5,000 rubles, depending on the circumstances of the insult.

The dissemination of defamatory information is completely subject to the Criminal Code - Article 128.1 of the Criminal Code of the Russian Federation establishes liability for libel. And although the culprit does not face imprisonment, the consequences are nevertheless very serious - a large (up to 5,000,000 rubles) fine or compulsory work for a long time.

If desired, the victim of defamation can use any method of protecting honor, dignity and business reputation, or apply them all at once. All that is needed for this is to appeal to the magistrate with a statement to bring the culprit to criminal responsibility. It is possible to obtain compensation for moral damage and refutation of false information within the framework of a criminal case - the judge will make an appropriate decision simultaneously with the sentencing.

Important: the protection of honor, dignity and business reputation is a right guaranteed not only during the life of a citizen, but also after his death. In this case, it can be realized by the relatives of the deceased victim or other interested persons. Some difficulties may arise only if the descendants wish to receive compensation for moral damage - it is allowed only in relation to persons who have directly suffered suffering.

Artem

Text: Alexandra Pavlovna Vasyukhnova, Alexandra Vyacheslavovna Mozgunova Source: magazine "Arbitration practice" No. 6, 2014

The counterparty spreads defamatory information about the company. How to build a line of defense in court

The rules for protecting the honor, dignity and business reputation of a citizen are established by Art. 152 of the Civil Code of the Russian Federation. These rules, with the exception of the provisions on compensation for non-pecuniary damage, apply to the protection of the business reputation of a legal entity. The applicability of a particular method of protecting violated civil rights to the protection of the business reputation of legal entities should be determined based on the nature of the legal entity. The absence of a direct indication in the law on the way to protect the business reputation of legal entities does not deprive them of the right to file claims for compensation for losses, including intangible ones, caused by diminishing business reputation, or intangible harm that has its own content (other than the content of moral harm inflicted on 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). This conclusion is based on the provision of Part 2 of Art. 45 of the Constitution of the Russian Federation, according to which everyone has the right to defend their rights and freedoms in all ways not prohibited by law (definition of the Constitutional Court of the Russian Federation of 04.12.2003 No. 508-О). The Supreme Court of the Russian Federation also spoke about disputes related to the protection of the business reputation of legal entities (Resolution of the Plenum 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" (hereinafter - Resolution No. 3) In particular, clause 1 of this resolution states that the business reputation of legal entities is one of the conditions for their successful activity.

Judicial practice in this category of disputes in general should be considered established. However, there are a few main aspects worth paying attention to.

Aspect one: a legal entity has the right to claim compensation for reputational damage

Bringing to civil liability is possible only under certain conditions: unlawful behavior; the presence of harm; a causal relationship between the unlawful behavior and the resulting harm. If the harm is caused by the dissemination of information discrediting the business reputation, then compensation for moral harm is carried out regardless of the fault of its perpetrator (Article 1100 of the Civil Code of the Russian Federation).

A legal entity whose right to a business reputation has been violated by actions to disseminate information discrediting such reputation has the right to demand compensation for intangible (reputational) harm. As follows from the decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 17, 2012 No. 17528/11, it can present such a demand if the general conditions of tort liability are proved, such as the presence of a wrongful act on the part of the defendant, the adverse consequences of these actions for the plaintiff, the causal relationship between the actions the defendant and the occurrence of adverse consequences on the side of the plaintiff. Exceptions are the terms of the defendant's fault. The current legislation does not classify guilt as a necessary condition of liability for harm caused by the dissemination of information discrediting business reputation.

With regard to the protection of the business reputation of a legal entity, the general conditions of civil liability will be as follows.

Illegal Conduct. It is expressed in the dissemination of information that does not correspond to reality.

Quote:

"A circumstance that is significant for this category of cases is the fact that the person against whom the claim is filed has disseminated information about the plaintiff and the defamatory nature of this information ..." (Resolution of the Federal Antimonopoly Service of the North-Western District of 10.10.2013 in case No. ...

The dissemination of defamatory information that does not correspond to reality should be distinguished from the expressed evaluative opinion.

So, in one of the cases, the society considered that the insurance company wrote a letter that contains information that does not correspond to reality and discredits its business reputation. The courts found that the disputed letter was a response to a request from the body controlling insurance activities. The disputed information did not contain statements of fact. They were the value judgment (opinion) of the insurance company about the reputation of the company in the insurance market. By sending a response to the insurance supervisory authority, the insurance company fulfilled its duty, which was entrusted to it by the current legislation and the authorized body (determination of the Supreme Arbitration Court of the Russian Federation of December 19, 2012 in case No. A40-105007 / 2011).

The conclusions of the courts on the relevance of the information are interesting. Two societies filed a lawsuit against the television company, as they considered the information presented in the television program to be untrue. On the air of the television company there was a story with the message that the products of the companies are unsafe, unhealthy and contain GMOs. However, the court of first instance dismissed the claim to the companies. He pointed out that neither the author nor the participants in the controversial plot named the names of the societies in the TV show and did not give any assessments of their activities. The appellate court also rejected the arguments of the companies that the communication about the quality characteristics of the goods, including the presence of GMOs in it, violates the business reputation. The dissemination of information about the goods of the societies among the viewers of the TV channel does not create a well-known fact about the relevance of the disseminated information to the plaintiffs (part 1 of article 69 of the Arbitration Procedure Code of the Russian Federation). Therefore, the fact of the presence or absence of GMOs in the products of societies cannot be defamatory for the trademark owner (ruling of the Ninth Arbitration Court of Appeal dated July 22, 2013 in case No. A40-171514 / 12-26-1480).

The panel of judges of the Supreme Arbitration Court of the Russian Federation, supporting the decisions of the lower courts, indicated the following: “When considering this case, the courts established that the disputed letter is a response to a request from the body that controls insurance activities, the contested information does not contain statements of fact, but is a value judgment (opinion) of the company” Ingosstrakh ”on the company's reputation in the insurance market. By sending a response to the insurance supervisory authority, Ingosstrakh company fulfilled its duty imposed on it by the current legislation and the authorized body ”(determination of 12/19/2012 in case No. А40-105007 / 2011).

The presence of harm. It consists in the loss of trust in the business reputation or in the presence of a real threat of loss of trust in the business reputation of a legal entity.

So, in one of the cases, the company sued a company that was engaged in control in the field of consumer protection. This company posted a message on its website that a rodent was found in the company's products. The court indicated that the publication of such information in the message may raise doubts about the good faith of the company in the implementation of production, economic and entrepreneurial activities. In addition, it indicates unlawful behavior on the part of society and thereby tarnishes its business reputation. The defamatory nature of the information is also confirmed by the expert opinion submitted to the court. It follows from this conclusion that in the analyzed text, through the system of negative information, a negative assessment of the company's activities is presented (resolution of the Federal Antimonopoly Service of the Moscow District of 04.07.2012 in case No. A40-77239 / 10-27-688).

Keeping in force the acts of the lower courts, the FAS of the North-Western District in its decision of 10.10.2013 in case No. requests from counterparties, increasing the interest rate on loans received by the company. In another case, the court noted that the publication of the information given by the defendant may raise doubts about the plaintiff's good faith in his industrial, economic and entrepreneurial activities, and also indicates the plaintiff's unlawful behavior, thereby discrediting the business reputation of the latter. The defamatory nature of the information presented is also confirmed by the expert's opinion submitted to the court dated 05.10.2010. It follows from this conclusion that the analyzed text through the system of negative information presents a negative assessment of the plaintiff's activities (resolution of the Ninth Arbitration Court of Appeal of 20.03.2012 in case No. A40-77239 / 2010).

Causal relationship. It manifests itself in the loss of confidence in the business reputation of a legal entity as a result of the actions of the person who disseminated false information.

Refusing to satisfy part of the requirements, the FAS of the North-West District in its decision of 13.09.2013 in case No. A67-4342 / 2012 indicated the following.

Quote:

“The plaintiff's reference to the fact that many clients lost confidence in the plaintiff's reputation and terminated contracts with him precisely on the basis of the publication is unconvincing, since buyers' refusals from contracts were announced in July 2009, while the publication was posted on the Internet since February 2008. The plaintiff's argument that the contracts were terminated only in July 2009 only because the plaintiff was trying to restore his reputation through meetings, negotiations was not documented. "

In addition, the Presidium of the Supreme Arbitration Court of the Russian Federation drew the attention of the courts to the following: "When identifying a causal relationship between the actions of the defendant and the occurrence of adverse consequences on the side of the plaintiff, the courts should take into account the existence of a real possibility of the influence of the actions of the defendant on the formation of an opinion about the plaintiff among third parties" (decision from 17.07.2012 No. 17528/11).

Aspect two: the business reputation of persons must be formed, and the fact of loss of trust in a person must be confirmed

The Presidium of the Supreme Arbitration Court of the Russian Federation, in its resolution of 17.07.2012 No. 17528/11, indicated that in order to confirm the occurrence of adverse consequences in the form of intangible harm to the business reputation of the plaintiff, it is necessary to establish the fact of the formed business reputation of the plaintiff, as well as the fact of loss of confidence in his reputation, which may result in a reduction number of customers and loss of competitiveness.

This resolution of the Supreme Arbitration Court of the Russian Federation has a clause on the possibility of reviewing cases with similar factual circumstances.

Arbitration courts had a similar position earlier.

Thus, in one of the cases, the court rejected the arguments of the defendants, stating that in confirmation of the occurrence of unfavorable consequences as a result of the actions of the defendants, the plaintiff presented the relevant evidence in the case materials. As such evidence was the refusal of the counterparty to conclude a civil contract with the plaintiff, testifying to the loss of confidence in his reputation (resolution of the Federal Antimonopoly Service of the Moscow District of June 24, 2013 in case No. A40-109987 / 2012).

The specificity of such cases also lies in the fact that the unlawful nature of the actions of persons should be expressed in the dissemination of defamatory information through publications, public appearances in the media, the Internet, as well as using other means of telecommunications. They are aimed at forming a negative public opinion about the business qualities of a person and do not correspond to reality. Information that does not correspond to reality is statements about facts or events that did not actually occur at the time of the disputed events. In particular, defamatory information is information that contains allegations of violation by a legal entity of the current legislation, business ethics or business customs, its bad faith in the implementation of production, economic and entrepreneurial activities. The responsibility of proving the validity of the disseminated information lies with the respondent. The plaintiff, however, in the trial is obliged to prove the fact of dissemination of such information by the person against whom the claim is brought, as well as their defamatory nature.

Aspect three: government agencies are liable for violation of business reputation on an equal basis with everyone

An important aspect is the peculiarities of the type of activity carried out by a person and / or the specifics of the interaction of such a person with government agencies.

Information contained in court decisions and sentences, decisions of the preliminary investigation authorities and other procedural or other official documents cannot be considered as untrue (paragraph 7 of Resolution No. 3). For their appeal and challenge, a different judicial procedure is envisaged.

At the same time, for the dissemination of information discrediting a person's business reputation, public authorities are liable on an equal basis with other entities.

It should be assumed that the dissemination of information that in one way or another affects the reputation of a person should go beyond the powers of a state body or be carried out in violation of such powers.

If a public authority or another entity has unlawfully interfered with a person's entrepreneurial activities and as a result of the interference, the business reputation of this person has been damaged, then it should be able to receive fair monetary compensation for the non-material damage caused to him in accordance with the current legislation (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 17.07.2012 in case No. A45-22134 / 2010).

It should also be borne in mind that the mere exercise by one or another state body of its supervisory powers established by law cannot be a basis for bringing it to justice. In this case, the relationship between the person and the state body will not be civil law, but administrative-legal, since it is based on the power subordination of one party to the other.

If the information contained in the document emanating from the state body, in the opinion of the person, discredits his business reputation, then the actions of the state body are subject to consideration in the order of Ch. 24 APC RF.

So, in one of the cases, the panel of judges refused the publishing house to transfer the case to the Presidium of the Supreme Arbitration Court of the Russian Federation and indicated the following:

Quote:

“The information contained in the letter of the Ministry of Education and Science of the Russian Federation cannot be refuted in accordance with Art. 152 of the Civil Code of the Russian Federation, since, within the framework of its powers, the Higher Attestation Commission of the Ministry of Education and Science of the Russian Federation, being a state body, forms the List of leading peer-reviewed scientific journals and publications ... is an official document, for the appeal of which a special procedure is provided ”(ruling of the Supreme Arbitration Court of the Russian Federation of 06.11.2012 in case No. A40-100148 / 2011).

Nevertheless, the respondent state body must prove the validity of the information disseminated by it and disputed by the plaintiff (resolution of the Federal Antimonopoly Service of the Moscow District of June 24, 2013 in case No. A40-109987 / 2012).

Thus, a person who goes to court to protect his business reputation should take into account the following.

First, the evidence base in relation to the existence of each of the general conditions of tort liability must be sufficiently weighty.

Secondly, when forming your own arguments, it is necessary to take into account the legal position of the Supreme Arbitration Court of the Russian Federation, set forth in the Resolution of the Presidium of 17.07.2012 No. 17528/11.

Photo by Pravo.Ru

On October 1, 2013, amendments to the Civil Code entered into force, which prohibited legal entities from recovering compensation for moral damage. In March this year, the Presidium of the Armed Forces said that legal entities can protect their reputation by refuting published information and recovering damages. But the St. Petersburg university decided that it still had the right to a million-dollar compensation for the damage caused to the business reputation of the university from an incriminating article in an online edition. The case reached the Armed Forces, which explained why the prohibition of legal entities to recover compensation for moral damage does not prevent them from claiming compensation for the damage that has been 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 article 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 the publication, the University applied to the Arbitration Court of St. Petersburg and the Leningrad Region with a claim to protect the business reputation against the editorial board of the site and its founder (case No. А56-58502 / 2015). The applicant demanded to recognize the following information as untrue and discrediting the business reputation of the university: "The administration of the St. Petersburg Humanitarian University of Trade Unions (SPbGUP) and the rector Alexander Zapesotsky violate the 29th article of the Constitution, which guarantees citizens freedom of speech"... It was these words of the representatives of the "Vesna" movement that were quoted by the publication.

In addition, the plaintiff asked to oblige the defendant to remove the article from the publication's website, post a refutation and collect RUB 1 million from the media. as compensation for harm caused to the business reputation of the university.

The first instance acknowledged that the material defamed the business reputation of the university, but refused to recover the millionth compensation. According to the court, the plaintiff did not provide evidence that would confirm the real negative consequences of the published article on the reputation of the university. Judge Svetlana Astritskaya ruled only 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 instance referred to the fact that not only the authors of the statements, but also those who disseminated this information (paragraph 5 of the Resolution of the Plenum of the Supreme Court of 24 February 2005 No. 3 "On judicial practice in cases of protection of honor and dignity of citizens, as well as the business reputation of citizens and legal entities "). The Arbitration Court of the Northwestern District overturned the appeal decision and upheld the act of first instance.

VS: "Legal entities can compensate for reputational damage"

The university disagreed with the district court's decision and appealed it to the Supreme Court to obtain an uphold of the appeal. Lawyer Alexander Makarov from JSB "Reznik, Gagarin and Partners", representing the interests of the plaintiff, at the hearing assured that in the process there was a substitution of concepts: "The courts indicated that the plaintiff has no right to compensation for moral damage, but the applicant asked for something else - to compensate for the reputational damage, the content of which is different 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 non-material damage in favor of a legal entity. The VS then refused the applicant, leaving in force the acts of the first instance and the district court. Thus, the media will not have to pay a million compensation (see).

In its act, the Supreme Court points out that the prohibition of legal entities to recover compensation for moral damage does not prevent them from claiming compensation for damage that has been 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 dated December 4, 2003 No. 508-О: "The absence of a direct indication in the law on the way to protect the business reputation of legal entities does not deprive them of the right to claim compensation for losses, including intangible ones, caused by diminishing business reputation, or intangible damage that has its own content.".

The Judicial Collegium for Economic Disputes of the Armed Forces explains why it refused to satisfy the requirements of the university: the plaintiff did not prove a certain level of his business reputation and its belittling.

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

Dmitry Seregin, Counsel at the Law Firm "YUST", explains that in the Civil Code, moral harm means mainly physical and mental suffering: "In this sense, moral harm cannot really be inflicted on a legal entity." However, moral harm should be distinguished from harm to business reputation, for example, a decrease in confidence in a legal entity due to the dissemination of defamatory information, emphasizes Seregin: undermining their reputation and justifying the size. "

Anatoly Semenov, the public ombudsman for the protection of the rights of entrepreneurs in the field of intellectual property, considers the link of the Supreme Court to the decision of the Constitutional Court controversial. In his opinion, the Constitutional Court in its ruling 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 "recovery", the lawyer believes. Semenov doubts that the position of the Constitutional Court in this case can overcome the direct indication of the law and create a new category of "intangible losses".

Pavel Khlyustov, Attorney-at-law, partner of the KA "Barshchevsky & Partners", I am sure that on the merits the dispute was resolved correctly, but the legal justification for the claimed claim as non-pecuniary damage is incorrect. Any allegations that, by its legal nature, compensation for moral damage to a legal entity refers to some kind of "non-material losses", the expert considers doubtful, given the absence of a corresponding norm in the current legislation. In addition, one should not forget that the recovery of non-pecuniary damage or non-pecuniary damage by its legal nature is a measure of legal responsibility, explains Khlyustov: “The latter can only occur for those acts that are recognized as offenses by the law in force at the time of their commission (Art. 54 Constitution) ". The speaker recalls that a legal entity can claim the recovery of damage that has been caused to its business reputation using the rules on recovery of damages: "And not the provisions that regulate compensation for moral damage, or" intangible damages "that cut the ears of every lawyer.

R.A. SABITOV,
Doctor of Law, Professor of the Department of Criminal Law and Criminology of the Chelyabinsk Law Institute of the Ministry of Internal Affairs of Russia, Honored Lawyer of the Russian Federation,
A.Yu. LITVINENKO,
Lecturer at the Department of Criminal Law and Criminology, Chelyabinsk Law Institute of the Ministry of Internal Affairs of Russia

The article discusses the concepts of "business reputation", "moral harm", theoretical and practical problems associated with the protection of the business reputation of a legal entity; attention is focused on the lack of criminal law protection of the business reputation of a legal entity in cases of defamation, in connection with which it was proposed to supplement the Criminal Code of the Russian Federation with article 178.1 "Defamation against a legal entity".

Concepts “business reputation”, “moral injury”, the theoretical and practical problems connected to protection of business reputation of the juridical person are considered in the article. In the article it is paid attention to absence of a criminal-right protection of business reputation of the juridical person in cases of slander, in this connection it is offered to fix in Criminal Code of the Russian Federation cl. 178.1 “Slander concerning the juridical person”.
Keywords: business reputation, moral injury, suffering, injured person, individual person, juridical person.

In criminal law, a victim of a crime, undoubtedly, is a natural person who has suffered physical, property, moral harm by a crime. In theory, the issue of recognizing a legal entity as a victim of a crime is ambiguous. Thus, some textbooks on criminal law categorically state that the victim of a crime is a person against whom a crime has been committed; only an individual can be considered a victim in the criminal legal sense, and a legal entity is a subject of civil law relations. Many authors limit themselves to pointing out that the victim of a crime is a natural person, and do not touch upon the issue of recognizing a legal entity as such.
In investigative practice, the issue of recognizing a legal entity as a victim, to whom this or that harm was caused by a crime, is also resolved ambiguously. So, V.V. Afisov, having studied 450 criminal cases of this kind of crimes, found that only 37% of them recognized a legal entity as a victim, while in other cases, inquirers and investigators recognized a representative of a legal entity as a victim.
In our opinion, victims of crimes in the criminal-legal sense can be not only individuals, but also legal entities. This opinion was shared by some pre-revolutionary and Soviet scientists. For example, N.S. Tagantsev believed that “the victim of a criminal act is, first of all, the owner of that law-enforced interest that has been directly damaged or put at risk by the offender, it does not matter whether such an owner is a single person, a set of persons that or does not constitute a legal entity, including here and the state itself. " P.S. Dagel singled out an individual or legal entity as a sign of the victim. Among modern scientists who share this point of view, one can note E.L. Sidorenko and A.V. Sumachev, who published works on the victim in criminal law 3.
In favor of recognizing a legal entity as a victim of a crime, we present the following arguments.
First, according to Art. 42 of the Code of Criminal Procedure of the Russian Federation, a legal entity is recognized as a victim if a crime causes damage to its property and business reputation. In this case, the rights of the victim are exercised by the representative of the legal entity. Here we agree with those lawyers who believe that the substantive concept of the victim should be enshrined in the criminal law. Until it is included in the Criminal Code of the Russian Federation, one should be guided by the criminal procedural concept of the victim.
The Criminal Procedure Law refers only to individuals and legal entities as victims. A legal entity is an organization that owns, economically or operatively manages separate property and is liable for its obligations with this property, can acquire and exercise property and personal non-property rights on its own behalf, bear obligations, be a plaintiff and defendant in court (cl. 1 article 48 of the Civil Code of the Russian Federation). This concept of a legal entity does not cover the Russian Federation, constituent entities of the Russian Federation, urban, rural settlements and other municipalities (Articles 124-127 of the Civil Code of the Russian Federation). However, the listed subjects of law may be harmed by a criminal act, and they should be recognized as victims of crimes on an equal basis with individuals and legal entities.
Secondly, the task of the criminal law is to protect not only the rights and freedoms of man and citizen, but also public relations in the economic sphere, ensuring state and municipal administration in which legal entities, state bodies and local self-government bodies operate.
Thirdly, according to administrative law, a victim is both an individual and a legal entity, to whom property or moral damage has been caused by an administrative offense (Article 25.2 of the Code of Administrative Offenses of the Russian Federation).
Fourthly, the articles of the Special Part of the Criminal Code of the Russian Federation often talk about causing damage or significant violation of the legally protected interests of not only citizens, but also organizations, society or the state (Articles 171-173, 185, 201, 202, 285-286, 288 Of the Criminal Code of the Russian Federation, etc.). The infliction of harm to organizations or the state by a crime should entail recognition of them as victims.
The victim of a crime is a legal entity in the event of damage to its property or business reputation, and not a representative of a legal entity and not the head of its representative office or branch. That is why in part 9 of Art. 42 of the Code of Criminal Procedure of the Russian Federation states that if a legal entity is recognized as a victim, its rights are exercised by a representative.
Despite the fact that the rules of the Civil Code of the Russian Federation apply to the entrepreneurial activities of citizens carried out without the formation of a legal entity, an individual entrepreneur is not a legal entity. We cannot agree with the statement of V.V. Afisov that, taking into account the provisions of civil legislation, individual entrepreneurs should be classified as legal entities if the crime has caused (or could have caused) damage to their economic activities. Chapter 3 of the Civil Code of the Russian Federation, on the contrary, includes individual entrepreneurs among individuals, by virtue of which they should be recognized as victims as individuals.
What types of harm can be caused to individuals? NS. Tagantsev wrote that the harm caused to the victims of various groups can be material, property or ideal, not finding tangible expression. Undoubtedly, a legal entity may suffer property damage, which consists in violating the powers of the owner (owner) of the property by illegal seizure, damage, destruction or failure to provide him with property. In Art. 42 of the Code of Criminal Procedure of the Russian Federation states that the victim is a legal entity in the event of damage to its property by a crime. Physical harm to a legal entity cannot be caused, since physical harm is understood as damage to a person's life or health.
The question of the possibility of causing moral harm to a legal entity remains highly controversial. Some civil scientists argue that a legal entity can suffer moral harm. Such harm has an objective content and consists in a negative assessment by third parties of the qualities of a legal entity and its products. Moral harm can be expressed in discrimination, undermining the authority of any legal entity. In paragraph 7 of Art. 152 of the Civil Code of the Russian Federation states that the rules of this article on the protection of the business reputation of a citizen are accordingly applied to the protection of the business reputation of a legal entity. In Art. 17 of the Model Civil Code, adopted on October 29, 1994 at the fifth plenary session of the Interparliamentary Assembly of the CIS Member States, it is explicitly stated that "in the cases provided for by this Code and other laws, moral damage may be compensated to a legal entity."
However, many lawyers reasonably believe that moral harm cannot be caused to a legal entity.
Clause 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 20.12.1994 No. 10 "Some Issues of the Application of Legislation on Compensation for Moral Damage" refers to the infliction of moral or physical suffering by actions (inaction) encroaching on the intangible goods belonging to the citizen or violating his personal non-property rights, or violating the property rights of a citizen. In this concept, the decree associates the infliction of moral harm only with a citizen. A legal entity, unlike an individual, cannot experience moral or physical suffering, since it is an artificial legal structure that does not have a bodily shell, does not possess either consciousness or psyche, and is not capable of emotions and experiences. Suffering means physical or mental pain that a legal entity is unable to endure.
However, the business reputation of the legal entity may be damaged. There is no concept of business reputation in the legislation. It is also absent in the resolution 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 some publications, an attempt is made to define the concept under consideration as a definite opinion about an individual or legal entity, an assessment of his activities. For example, A.L. Anisimov believes that a citizen's business reputation is determined by the level of his qualifications and characteristics of professional activity, and a legal entity - by the assessment of production or other activities in accordance with its legal status in the context of business and market relations. A.M. Erdelevsky defines the business reputation of an individual and legal entity as related to the socially significant activity of a person, its assessment by society, the opinion of society about the qualities, advantages and disadvantages of this person.
T. Shulepova, judge of the Arbitration Court of the Sverdlovsk Region, explains that the concept of "business reputation" is defined by the court as the prevailing opinion about an individual or legal entity as a participant in commercial turnover.
The above concepts of a legal entity are based on its linguistic interpretation. For example, in one of the dictionaries, reputation (from French reputation and Latin reputation - deliberation, reflection) is defined as the prevailing general opinion about the merits or demerits of someone, something, public assessment. According to the dictionary of S.I. Ozhegova and N.Yu. A Swedish reputation is a public assessment acquired by someone, something, a general opinion about the qualities, merits and demerits of someone, something.
Civilists associate the business reputation of a legal entity with entrepreneurial relations, commercial, business turnover. In our opinion, the concept of business reputation should be interpreted in such a way that it would be possible to protect not only a legal entity carrying out business activities, but also non-profit organizations (public and religious organizations, foundations, institutions, associations and unions) from reputational harm. The word "business" means "related to work", social, service activities. It is won by the deeds of the organization. From this point of view, a business reputation can be possessed, for example, by political parties, educational institutions, health care institutions, and cultures that do not carry out entrepreneurial activities.
Business reputation can be positive (good) or negative (bad). A positive business reputation is subject to legal protection. Apparently, it is impossible to exclude the protection of the organization's reputation even if it has deteriorated further as a result of the dissemination of defamatory information or other illegal actions. Harm to a legal entity can be caused not only by losing a positive reputation, but also by diminishing it.
Thus, the business reputation of a legal entity is a positive or negative public (possibly state) assessment of its activities, advantages, disadvantages and qualities acquired by a legal entity.
Harm to the business reputation of a legal entity is not a form of moral harm, since an organization cannot experience physical and mental suffering as a result of a crime. That is why in Part 1 of Art. 42 of the Code of Criminal Procedure of the Russian Federation, it is singled out as an independent type of harm.
Reputation is a sign of libel, provided for in Art. 129 of the Criminal Code of the Russian Federation. However, this article does not apply to a legal entity, since the object of this crime is a person. Moreover, not a single article of the Special Part of the Criminal Code of the Russian Federation contains harm to the business reputation of a legal entity as a sign of corpus delicti. Nevertheless, such harm can be caused as a result of the commission of economic, environmental, official and other crimes both by the employees of the organization (from within) and by outsiders (from the outside). At the same time, the business reputation of a legal entity acts as an additional object of encroachment.
Damage to business reputation can be caused, for example, as a result of illegal use of a trademark (Article 180 of the Criminal Code of the Russian Federation), receipt and disclosure of information constituting commercial, tax or banking secrets (Article 183 of the Criminal Code of the Russian Federation), fictitious bankruptcy of Art. 197 of the Criminal Code of the Russian Federation), commercial bribery (Article 204 of the Criminal Code of the Russian Federation) and the commission of other crimes. For example, the use of someone else's trademark negatively affects, directly or indirectly, the reputation of the quality of the product, the business reputation of its manufacturer and the financial position of the enterprise. Reputational harm is a kind of the consequences of crimes that are expressed in causing significant harm to the rights and interests of the organization (Articles 201, 285, 286, 288, 292, 293, 330 of the Criminal Code of the Russian Federation).
Often there is such a way of causing harm to the business reputation of a legal entity as spreading false defamatory information about it. The dissemination of such information means its publication in the press, broadcast on radio and television, distribution on the Internet, presentation in a public speech or communication in one form or another to at least one person. Defamatory, in particular, is information containing allegations of a violation by a legal entity of current legislation, bad faith in the implementation of production, economic and entrepreneurial activities, violation of business ethics or business customs, incorrect, unethical behavior of a representative of a legal entity, which diminish its business reputation (p. 7 Resolutions 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").
Independent criminal liability for the dissemination of deliberately false information discrediting a legal entity is not provided for by the criminal law. In our opinion, it should be established, since this act is capable of causing significant property damage and harm of an intangible nature.
Dissemination of knowingly false information discrediting an organization can be one of the ways to prepare for its raider takeover. The invading company organizes publications in the press, “commissioned” appearances on television, sending defamatory letters to competing companies in order to discredit the owners, executives, managers or major shareholders of the target company. Incriminating articles, speeches and letters may relate to poor business management, non-compliance with contractual obligations, violation of the rights of employees and shareholders, alleged bankruptcy, ineffective use of property, etc.
Undermining the business reputation of a legal entity can be a way to eliminate competing economic entities from the market. In the context of the financial crisis, the antimonopoly services have noted an increase in the number of complaints about unfair competition. Some companies resort to discrediting competitors by publishing in print media, distributing leaflets, and sending letters to the company's customers. For example, one of the Yekaterinburg management companies pasted leaflets in the entrances of houses, in which it denigrated the organization that provided public services to their residents. Another company sent e-mails to a competing firm's customers telling them that the firm did not deliver the goods on time, that the actual prices did not match those stated in the online catalog. Because of this, the company lost dozens of orders.
In our opinion, there is a gap in the criminal legislation, that is, there is no criminal law protection of the business reputation of legal entities. To eliminate it, we propose to supplement Chapter 22 "Crimes in the Sphere of Economic Activity" of the Criminal Code of the Russian Federation with Article 178.1 "Libel against a legal entity" as follows:
1. Dissemination of knowingly false information that undermines the reputation of a legal entity shall be punished ...
2. The same act committed in a public speech, a publicly displayed work or in the mass media shall be punished ...

Bibliography
1 See: Criminal Law of Russia. Part General: Textbook. for universities / Otv. ed. L.L. Kruglikov. - M., 1999.S. 132.
2 See: Criminal Law of Russia. Part General: Textbook. for universities / Under. ed. F.R. Sundurova. - Kazan, 2007.S. 200.
3 See, for example: V.E. Kvashis. Fundamentals of Victimology. Problems of protecting the rights of victims of crimes. - M., 1999.S. 129, 142; Russian criminal law: Textbook: In 2 volumes. Vol. 1: General part / Ed. L.V. Inogamova-Khegai, V.S. Komisarova, A.I. Rarog. - M., 2008.S. 121-122.
4 See: V.V. Afisov. Procedural position of a legal entity as a victim in criminal proceedings in Russia: Author's abstract. dis. ... Cand. jurid. sciences. - Tyumen, 2008.S. 11.
5 Tagantsev N.S. Russian criminal law: Lectures. Part General: In 2 volumes.T 2. - M., 1994.S. 13.
6 See: Dagel P.S. Victim in Soviet criminal law // Victim of a crime: a thematic collection. - Vladivostok, 1974.S. 18.
7 See: E.L. Sidorenko. Negative victim behavior and criminal law. - SPb., 2003.S. 15; Sumachev A.V. Victim in criminal law (analysis of the main problems). - Nizhnevartovsk, 2005.S. 65.
8 See: Yani P. Legislative definition of a victim of a crime // Russian Justice. 1995. No. 4. P. 41; Sidorenko E.L. Decree. op. P. 13; Sumachev A.V. Decree. op. P. 47.
9 See: V.V. Afisov. Decree. slave. P. 11.
10 See: N.S. Tagantsev. Decree. op. P. 13.
11 See: V.B. Malinin, A.F. Parfenov. The objective side of the crime. - SPb., 2004.S. 88.
12 See: I.V. Afanasyeva, D.A. Belova. Compensation for moral damage to a legal entity // Lawyer. 2002. No. 8. S. 29-32.
13 See: V. Plotnikov Business reputation as an object of civil protection // Economy and law. 1995. No. 11.
S. 17-19.
14 See: Criminal Procedure Law of the Russian Federation: Textbook. / Resp. ed. P.A. Lupinskaya. - M., 2001 S. 103.
15 Information bulletin of the Interparliamentary Assembly of the CIS Member States. 1995. June.
16 See, for example: O.V. Bagdanov. Compensation for moral damage: Textbook. allowance. - Saratov, 2005.S. 27-28; Erdelevsky A.M. Compensation for Moral Damage: Analysis and Commentary on Legislation and Judicial Practice. - M., 2004.
S. 122-123; V.V. Afisov Decree. op. S. 12-13; Bonner A. Is it possible to cause moral harm to a legal entity? // Russian justice. 1999. No. 7.P. 15.
17 Bulletin of the RF Armed Forces. 1995. No. 3. S. 16-17.
18 See: A.M. Erdelevsky. Decree. op. P. 123.
19 See: S.I. Ozhegov, N.Yu. Shvedova. Explanatory dictionary of the Russian language. - M., 1999.S. 771.
20 Russian newspaper. 2005.15 March.
21 See: A.L. Anisimov. Honor, dignity and business reputation are protected by law. - M., 2004.S. 3.
22 See: A.M. Erdelevsky. Decree. op. P. 116.
23 See: T. Shulepova, Honest Name of Business // Rossiyskaya Gazeta. 2007.3 apr.
24 See: Modern Dictionary of Foreign Words. - SPb., 1994.S. 528.
25 See: S.I. Ozhegov, N.Yu. Shvedova. Decree. op. P. 677.
26 Ibid. P. 159.
27 See: Anisimov S.N. Raiding in Russia. Features of the national seizure. - SPb., 2007.S. 190-193; Faenson M.I., Pimanova A.A. Raiding (unfriendly takeover of enterprises): the practice of modern Russia. - M., 2007.S. 34,
39-40.
28 See: U. Vylegzhanina, Black Banner. Cases of unfair competition have become more frequent // Rossiyskaya Gazeta. 2009.9 July.