The theory of everything. Civil Code of the Russian Federation (Civil Code of the Russian Federation) Article 152 of the Constitution

They are inseparable benefits of the individual. Citizens also have and business reputation... It is formed in the process of their implementation economic activity... Legal entities also have a business reputation. All these benefits are protected by law.

The concept of honor and dignity

An assessment is established for an individual in terms of social and ethical norms. A certain measure of a person's social and spiritual qualities is called honor. Moreover, each subject has its own idea of its value. It is called dignity. It is recognized by the state for all members of society equally. The concepts of dignity and honor determine the attitude to the subject as to highest value... These categories exist in close relationship. Dignity acts as a certain reflection of honor as an assessment of society in the mind of the subject. Together, these categories form an organic whole, an inalienable personality trait.

Business reputation

For people, it is determined by the level professional qualifications, and for a legal entity - according to indicators of production and other economic activity in accordance with its legal status within the framework of market relations. The content of the term "reputation" largely coincides with the definition of honor. However, the first reflects mainly professional, entrepreneurial qualities, and the second - more ethical.

Regulatory support

The above categories are closely related to legal provisions. Each subject has the right to protect honor, dignity, business reputation. The limitation or loss of these benefits leads to a decrease in the established status in relations with other subjects. In this regard, civil protection of honor, dignity, business reputation is the most important area of state social policy. Within the legal system, these categories are considered as intangible goods and as special subjective opportunities.

Legal personality

It determines, to one degree or another, the position of individuals in society, reflects their relationship with the state. Each subject is endowed with a certain set of non-property and property, political rights. They reflect it legal status... These rights act as elements of legal personality. It, in turn, is a specific property of each individual. The right to dignity, honor and others is recognized as absolute. This is due to the fact that its implementation is ensured by the obligation of an indefinite number of persons. It consists in refraining from any encroachment on the honor, reputation, dignity of the subject. This obligation is enshrined in constitutional provisions, as well as other legislative norms. In case of violation of the instructions, judicial protection of honor, dignity and business reputation is provided.

An important point

The right to honor, reputation, dignity, as well as other non-property benefits enshrined in the Constitution, are of practical importance for subjects not only in the event of their violation, but also irrespective of it. When endowing one or another individual or legal entity with opportunities, the state provides an appropriate system of guarantees. It forms the conditions in which the implementation and protection of rights is carried out.

Classification

The provision is fixed that inalienable freedoms and rights, intangible benefits are protected by legal norms, unless otherwise follows from their essence. At the same time, Art. 150 of the Civil Code defines a list of such categories and divides them into 2 groups. The norm establishes intangible benefits that are acquired by virtue of:

birth (for individuals) or creation (for legal entities);
law.

Legislation includes health, dignity, personal inviolability, life, good name, honor, family and personal secrets, business reputation to the first. These categories exist regardless of their legal regulation. The protection of the dignity, honor and business reputation of the subject, as well as other benefits listed above, is carried out only in case of encroachment on them. The second group includes the possibilities of choosing a place of residence and stay, freedom of movement, etc. They act as subjective rights in a specific respect. Accordingly, they are regulated by statutory provisions.

Specificity of protection of non-property goods

There is a specific rule, the provisions of which regulate the protection of honor, dignity and business reputation. The article in which they are contained defines general order implementation of state guarantees ensuring the protection of these benefits. For example, this concerns the dissemination of information that denigrates a person. According to Art. 152 of the Civil Code of the Russian Federation, the subject may demand its refutation. At the same time, the person who made the information public can avoid liability if he proves that the information is true. In fact, Art. 152 of the Civil Code of the Russian Federation, the possibility to demand a refutation takes place exclusively in relation to defamatory data. It should be said here that it arises regardless of the way the information is made public. At the request of interested subjects, refutation is possible even after the death of the person. Defamatory information should not harm not only the person himself, but also his relatives, as well as other participants in the relationship. The legislator provides for an indefinite range of admissible plaintiffs, using the expression "at the request of interested parties" in the norm.

Specificity of the rebuttal

Information that does not correspond to reality may be published in the media. Accordingly, they must be refuted in them. If such information is contained in any document, it must be withdrawn or replaced. Determination of the procedure for refuting information in other cases refers to the decisions of the courts. According to Art. 152 of the Civil Code of the Russian Federation, the subject, in respect of which the information was disseminated in the media that does not correspond to reality, has the opportunity to publish the answer. It should be noted here important point... This norm refers to information that denigrates the honor, dignity, reputation, and data that infringe on the rights and interests of the subject. In the first case, it is established that the refutation is published in the same media, and in the second, the person has the opportunity to make his answer public.

General rules

According to Art. 208 of the Civil Code does not apply to claims for the protection of intangible rights, with the exception of cases stipulated by law. If it is impossible to identify the person who disseminated the slanderous information, the victim may submit an application for recognition of it as untrue. If the obliged subject fails to comply with the decision made in favor of the victim, the court may impose a monetary penalty. The amount and procedure for collection is established in accordance with the Code of Civil Procedure. The legislation also stipulates the possibility of compensation for material and moral harm to the victim, which arose as a result of the dissemination of data that denigrates him.

conclusions

Thus, the protection of honor, dignity and citizenship can be carried out in several ways. First of all, he can make a demand to refute the slanderous information. It presupposes bringing to the persons among whom it was disseminated, data on the recognition of it as untrue. In addition, the protection of dignity, honor and business reputation is carried out through the recovery of moral and material damage from the culprit. The former is understood as the acknowledgment of emotional or physical suffering.

Characteristics of moral damage

In civil law, harm is understood as an adverse change in the good protected by law. Damage can be non-property and property. At the same time, the emergence of the latter does not mean that the suffering and worries of the victim do not appear. In this aspect, these categories are in a sense interdependent. As a result of the degradation of the dignity and honor, as well as the reputation of persons, moral damage occurs, and it is subject to compensation. This rule is established by Art. 151 GK. Moral damage presupposes, first of all, various emotional, moral experiences caused by a violation. This harm often makes you suffer more acutely than property harm. Without causing material damage, it entails heavy mental anguish. Moral harm is accompanied by a violation of mental well-being, emotional balance of the individual. It follows from this that it is accompanied by the undergoing of psychological or physical suffering, as well as a narrowing of the freedom of the individual and, therefore, cannot remain outside the legal sphere. Moral harm is mentioned in various legal provisions. For example, it is specified in Art. 1099-1101, 152, 12, 151 CC. The legal assessment of the essence of this harm is enshrined in Art. 151. Clarifications on this issue are also given in the resolution of the Plenum of the Armed Forces No. 10. In paragraph 2 of this document, in particular, it is said that moral damage should be considered physical or mental suffering arising from inaction / actions encroaching on the intangible benefits of persons by virtue of law or from birth or violating property or non-property (personal) rights. This condition can be due to various reasons. For example, suffering can be caused by the loss of relatives, the inability to continue Active participation in social life, loss of work, temporary restriction / deprivation of freedoms, disclosure of family), dissemination of information that does not correspond to reality.

Specificity of compensation

The offender's obligation to compensate for moral damage caused by his behavior acts as a measure of responsibility. It has a preventive (warning) value in the field of personal protection. Protection of dignity, honor and business reputation through the recovery of moral damage can be carried out in different ways. The legislation, in particular, provides for compensation:

For the dissemination of data that does not correspond to reality, denigrating a legal entity. This method is provided for in clause 7 of Art. 152.
For the dissemination of information that denigrates the subject, regardless of the fault of the tortfeasor.
In case of violation of the non-property rights of a citizen or in case of encroachment on the intangible benefits that he has, as well as in other cases established by law.

Recovery of non-pecuniary damage is made exclusively in money. The amount is established in accordance with the nature of the physical and psychological suffering that was caused to the person, as well as the degree of guilt of the offender in cases where it acts as a basis for application this method protection.

Nuances

Considering the peculiarities of protecting honor, dignity and business reputation, it should be noted that when determining the amount of compensation, the principles of justice and rationality, the level of emotional and physical suffering that are associated with the individual qualities of the subject being the victim should be taken into account. The inability to accurately establish the amount of monetary or other equivalent cannot act as an obstacle to making decisions on compensation for moral damage. In accordance with the norms, the victim independently assesses the severity of the harm caused to him, and indicates a specific amount in his claim.

Production excitement

The legislation proceeds from the inadmissibility of arbitrary intrusion into someone's private life, the need for the subjects to freely and unimpeded implementation of their legal capabilities, to ensure their restoration in case of violation. Protection of the rights of citizens acts as a fundamental principle and is guaranteed by the state. The legislation provides for certain measures of state coercion. They are aimed at protecting the freedoms and interests of the subjects, eliminating the negative consequences arising from their violation. These measures are implemented through civil proceedings. The norms establish the procedure in accordance with which the consideration of applications and complaints is carried out. To initiate proceedings, the injured person must file a claim. Protection of honor, dignity and business reputation acts as a constitutional subjective legal opportunity. It is implemented through a certain set of powers. In particular, it provides for an appeal to the court as a whole and to a specific instance, the ability to count on an objective consideration of the stated requirements, on the delivery of a well-grounded and legal decision. In addition, the protection of the rights of citizens is carried out in the order of appeal and cassation proceedings. Of no small importance is the obligation to comply with the decision.

Specificity of making claims

According to the law, the protection of dignity, honor and business reputation can be carried out by any subject, on whose intangible benefits an infringement has been committed. At the same time, it should be taken into account that the communication of defamatory information to the person whom it concerns will not act as the dissemination of this data. In such cases, the protection of dignity, honor and business reputation can be carried out according to the norms of criminal law. In particular, the subject may be guided by the provisions of Art. 130 of the Criminal Code. In this situation, there is an insult inflicted in the absence of the dissemination of information about the victim to third parties. For example, the perpetrator showed an indecent gesture, sent the victim a letter with obscene language, and so on. These actions belittle human dignity and give rise to the right not only to initiate proceedings, but also to compensation for moral damage.

Protection of intangible goods on the Internet

In the information space, it is very easy to spoil the reputation, harm the dignity and honor of the subject. For this, a variety of means are used. These are various forums, news feeds, message boards. Quite often on sites there are references to the dishonesty of certain organizations, low-quality services. As a result of discrediting, reputation is lost potential clients, arise financial losses... At present, the problems of protecting honor, dignity and business reputation on the Internet are quite acute. This is primarily due to the lack of a clear regulation relations in information sphere... The dissemination of information on the Internet is considered a relatively new way of disclosing certain data. Therefore, there is no sufficient practice to consider disputes arising in connection with the publication of inaccurate, defamatory information. In addition, specialists who provide legal assistance to subjects are often incompetent. For example, a civil lawyer has experience in advocating for a person's interests violated in traditional ways, but at the same time he may not have sufficient practice in proceedings related to the dissemination of defamatory data on the network. As a result, illegal actions remain virtually unpunished.

Regulatory gaps

Protection of dignity, honor and business reputation on the Internet must be effective and based on the norms of legislation. However, this is not enough to declare that the rules regarding the dissemination of information in traditional media also apply to electronic platforms... When considering disputes, it should be borne in mind that if defamatory information was published on a resource registered as a media outlet, you must follow the relevant rules. Namely, those provisions that regulate the activities of television and radio companies, printed publications... List of "traditional" means mass media specified in Art. 2 FZ "On Mass Media". Thus, in case of a one-time dissemination of data that does not have a sign of periodicity, the provisions of this Law are not applicable. The Federal Law "On Mass Media" binds the permanent name of the publication to belonging to the mass media. Changing it involves a fairly complex procedure. For an Internet site, everything is much simpler - the "traditional" rules do not apply here. If we talk about the form of providing information, then there are no strict requirements regarding this. In defining the media, the law specifies, in addition to traditional, and "other publications". This term can be called not only the electronic version paper edition, but also resources that do not have paper forms. The fact of their existence only in digital form does not exclude their being classified as mass media. From all that has been said, it follows that the aforementioned Law does not fully solve the problems arising with the dissemination of information in virtual publications.

Legal practice

It should be noted that instances of general jurisdiction, as well as arbitration tribunals, often experience difficulties in resolving disputes arising in connection with the dissemination of information on the Internet. Moreover, not every civil lawyer will undertake to provide assistance to the injured subject. Among the main difficulties, it is necessary to highlight the difficulty of identifying persons who can be held liable and will be obliged to compensate for the damage caused. In addition, there is the problem of fixing evidence, recognizing their reliability and admissibility. On the Internet, people have the opportunity to be anonymous. This significantly complicates the identification of authors, sources of discrediting information. To prove the fact of the dissemination of slanderous information, it is necessary to carry out a number of difficult procedures. As a result, it is very often impossible to identify the culprit. All these problems need to be addressed. This requires appropriate additions to the existing legal framework.

1. A citizen has the right to demand in court the refutation of information discrediting his honor, dignity or business reputation, unless the person who disseminated such information proves that it is true. The refutation must be done in the same way that information about the citizen was disseminated, or in another similar way.

On demand stakeholders protection of honor, dignity and business reputation of a citizen is allowed even after his death.

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

3. If information defaming the honor, dignity or business reputation of a citizen is contained in a document issued by the organization, such a document must be replaced or revoked.

4. In cases where information discrediting the honor, dignity or business reputation of a citizen has become widely known and in this connection it is impossible to bring a refutation to the public, the citizen has the right to demand the removal of the relevant information, as well as suppression or prohibition of further dissemination of this information by means of seizure and the destruction, without any compensation, of copies of material carriers containing the indicated information made for the purpose of putting into civil circulation, if the removal of the relevant information is impossible without the destruction of such copies of material carriers.

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

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

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

8. If it is impossible to establish the person who disseminated information discrediting the honor, dignity or business reputation of a citizen, the citizen in respect of whom such information is disseminated has the right to apply to the court with a statement that the disseminated information is not true.

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

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

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

Commentary on Article 152 of the Civil Code of the Russian Federation

1. Honor, dignity, business reputation are similar moral categories. Honor and dignity reflect the objective assessment of a citizen by those around him and his self-esteem. Business reputation is a score professional qualities citizen or legal entity.

The honor, dignity, business reputation of a citizen together determine the "good name", the inviolability of which is guaranteed by the Constitution (Article 23).

2. To protect the honor, dignity, business reputation of a citizen, a special method is provided: refutation of widespread discrediting information. This method can be used if there are a combination of three conditions.

First, the information must be defamatory. The assessment of information as defamatory is based not on a subjective, but on an objective sign. In the Resolution of the Plenum of the Armed Forces of the Russian Federation of August 18, 1992 N 11 "On some issues arising in the consideration of cases by courts on the protection of the honor and dignity of citizens, as well as the business reputation of citizens and legal entities" it is specially noted that "information that does not correspond to reality is discrediting, containing statements about a violation by a citizen or an organization of current legislation or moral principles (about committing a dishonest act, improper behavior in labor collective, everyday life and other information discrediting production, economic and social activities, business reputation, etc.), which belittle honor and dignity. "

Secondly, information must be disseminated. In the said Resolution of the Plenum of the RF Armed Forces, an explanation is also given about what should be understood by the dissemination of information: "The publication of such information in the press, broadcast on radio and television programs, demonstration in newsreel programs and other media characteristics, public speeches, statements addressed to officials, or communication in another, including oral, form to several or at least one person. " It was specially emphasized that the communication of information to the person whom they concern, in private, is not considered as dissemination.

Thirdly, the information should not correspond to reality. At the same time, the article being commented on enshrines the principle of the victim's presumption of innocence inherent in civil law: information is considered untrue until the person who disseminated it proves otherwise (see the Bulletin of the RF Armed Forces. 1995. N 7. P. 6).

3. For the protection of the honor, dignity and business reputation of the deceased, see the comment. to Art. 150 GK.

4. In clause 2 of the commented article, the procedure for refuting defamatory information that was disseminated in the media is specially highlighted. It is regulated in more detail in the Law of the Russian Federation of December 27, 1991 "On the Mass Media" (Vedomosti RF. 1992. N 7. Art. 300). In addition to the requirement that the refutation must be published in the same media in which the defamatory information was disseminated, the Law established that it must be typed in the same font, in the same place on the page. If a refutation is given by radio or television, it must be broadcast at the same time of day and, as a rule, in the same broadcast as the refuted message (Articles 43, 44 of the Law).

In the commented article, the procedure for refuting the information contained in the document is specially highlighted - such a document must be replaced. We can talk about replacing work book, in which a defamatory entry was made about the dismissal of an employee, characteristics, etc.

Although in all other cases the procedure for refutation is established by the court, it follows from the meaning of the commented article that it must be made in the same way in which the defamatory information was disseminated. This position is adhered to by judicial practice.

5. From clause 2 of the commented article it follows that in all cases of attacks on honor, dignity and business reputation, a citizen is provided with judicial protection. Therefore, the rule established by the Law on Mass Media, according to which the victim must first apply for a refutation to the media, cannot be considered as mandatory.

A special permission on this issue is contained in the Resolution of the Plenum of the Armed Forces of the Russian Federation of August 18, 1992 N 11. It notes that "paragraphs 1 and 7 of Art. 152 of the first part of the Civil Code Russian Federation it has been established that a citizen has the right to demand in court the refutation of information discrediting his honor, dignity or business reputation, and a legal entity - information discrediting his business reputation. At the same time, the law does not provide for a mandatory preliminary appeal with such a request to the defendant, including in the case when the claim is brought against the mass media that disseminated the above information. "

6. Clause 3 of the commented article establishes the procedure for protecting the honor, dignity and business reputation of a citizen in the event that information is disseminated in the media that is devoid of signs that give the right to refute it. We can talk, for example, about discrediting, but true to reality, or about non-discrediting information that does not correspond to reality, but at the same time, their dissemination to some extent infringes upon the rights and legitimate interests of a citizen, diminishes his business reputation. In these cases, the citizen has the right not to a refutation, but to a response, which must be published in the same media. Although such a method of protection as the publication of a response has been established only in relation to the media, it is possible that it can also be used when disseminating information in a different way.

Failure to comply with the named court decisions is punishable by a fine in accordance with Art. 406 Code of Civil Procedure and Art. 206 APC in the amount of up to 200 established by law minimum sizes wages.

7. Special methods of protection - giving a refutation or a response are applied regardless of the fault of the persons who allowed the dissemination of such information.

Paragraph 5 of the commented article confirms the possibility of using for the protection of honor, dignity and business reputation in addition to special and general methods of protection. At the same time, the most common ones were named: compensation for losses and compensation for moral damage. Property and non-property damage resulting from a violation of honor, dignity and business reputation is subject to compensation in accordance with the norms contained in Ch. 59 GK (obligation due to harm). In accordance with these norms, compensation for property damage (losses) is possible only with the culpable dissemination of information (Article 1064 of the Civil Code), and compensation for moral damage - regardless of the fault (Article 1100 of the Civil Code).

In addition to the above, any other general means of protection can be used (see the commentary to Article 12 of the Civil Code), in particular, the suppression of actions that violate the right or create a threat of its violation (seizure of circulation of a newspaper, magazine, book, prohibition of publication of the second edition etc.).

8. Clause 6 contains another special way to protect the honor, dignity and business reputation of citizens in the case of anonymous dissemination of information: the court's recognition of the disseminated information as untrue. The Code of Civil Procedure does not establish the procedure for considering such claims. Obviously, they should be considered in the order of a special procedure, provided for the establishment of facts of legal significance (chap. 26, 27 of the Code of Civil Procedure). The same procedure, obviously, can be used if there is no distributor (death of a citizen or liquidation of a legal entity).

Cases of anonymous dissemination of information do not include publications in the media without specifying their author. In these cases, there is always a distributor, and therefore, this media outlet is the responsible person.

9. In case of violation of the business reputation of a legal entity, it has the right to demand refutation of widespread defamatory information, replacement of the issued document, publication of a response in the media, establishment of the fact that the widespread information does not correspond to reality, etc. The legal entity has the right to demand compensation for losses. As for non-pecuniary damage, it is, in accordance with Art. 151 of the Civil Code is compensated only to citizens, since only they can endure moral and physical suffering.

The full text of Art. 152 of the Civil Code of the Russian Federation with comments. New current edition with additions for 2020. Legal advice on article 152 of the Civil Code of the Russian Federation.

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

3. If information defaming the honor, dignity or business reputation of a citizen is contained in a document issued by the organization, such a document must be replaced or revoked.

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

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

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

(Article as amended by Federal Law of July 2, 2013 N 142-FZ.

Commentary on Article 152 of the Civil Code of the Russian Federation

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

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

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

These intangible benefits are protected by current legislation (in particular, criminal liability for libel, i.e. the dissemination of deliberately false information discrediting the honor and dignity of another person or undermining his reputation, is provided for by Article 128.1 of the Criminal Code of the Russian Federation).

A manifestation of violation of honor, dignity, business reputation may be the dissemination of information discrediting the honor and dignity of citizens or the business reputation of citizens and legal entities.

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

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

Defamatory, in particular, is information containing allegations of a violation by a citizen or a legal entity of current legislation, committing an dishonest act, wrong, unethical behavior in personal, public or political life, dishonesty in the implementation of industrial, economic and entrepreneurial activities, violation business ethics or business customs that belittle the honor and dignity of a citizen or the business reputation of a citizen or legal entity.

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

When spreading untrue discrediting information about minors or incapacitated citizens, claims for the protection of their honor and dignity may be brought by their legal representatives (for example, parents). After the death of a citizen, the protection of his honor, dignity and business reputation may be initiated by his relatives and (or) heirs.

2. When satisfying the claim for the protection of honor and (or) dignity and (or) business reputation, the court in the operative part of the decision is obliged to indicate the method of refuting untrue discrediting information and, if necessary, set out the text of such a refutation, which should indicate exactly what information are untrue defamatory information, when and how they were disseminated, as well as determine the period within which the refutation must follow. A rebuttal disseminated in the media can be clothed in the form of a report on the court decision taken in this case, including the publication of the text of the court decision.

As a general rule, a court decision to refute information discrediting honor, dignity and business reputation must be executed voluntarily. Otherwise, after the entry into legal force of the court decision, the person has the right to apply to the court for the issuance of a writ of execution to apply to the bailiff service for the purpose of its subsequent compulsory execution. In cases of non-fulfillment by the debtor of the requirements contained in the enforcement document, within the time period established for voluntary execution, within 24 hours from the date of receipt of a copy of the bailiff's order to initiate enforcement proceedings, the bailiff-executor issues an order to collect the enforcement fee and sets a new deadline for the debtor for execution. And if the debtor fails to fulfill the requirements contained in the court order, without good reason in again fixed time the person may be, according to Part 2 of Art. 105 ФЗ dated 02.10.2007 N 229-ФЗ "On Enforcement Proceedings" brought to administrative responsibility under Art. 17.15 of the Administrative Code of the Russian Federation, and in case of further non-execution of the court decision - up to the criminal one (according to Art. 315 of the Criminal Code of the Russian Federation).

3. The proper defendants in claims for the protection of honor, dignity and business reputation are the authors of untrue discrediting information, as well as the persons who disseminated this information. If the disputed information has been disseminated in the mass media, then the author and the editorial staff of the relevant mass media are the proper defendants. If this information has been disseminated in the media with an indication of the person who is its source, then this person is also the proper respondent. When publishing or otherwise disseminating defamatory information that does not correspond to reality without indicating the name of the author (for example, in an editorial article), the appropriate defendant in the case is the editorial office of the relevant media outlet, that is, an organization, an individual or a group individuals engaged in the production and release of this media. If the editorial office of a mass media outlet is not a legal entity, the founder of this mass media may be involved in the case as a defendant.

4. Compensation for non-pecuniary damage is determined by the court when making a decision in monetary terms. When determining the amount of compensation for non-pecuniary damage, the courts should take into account all circumstances worthy of attention. If defamatory information that does not correspond to reality is disseminated in the media, the court, when determining the amount of compensation for moral damage, must take into account the nature and content of the publication, as well as the degree of dissemination of inaccurate information. At the same time, the amount of compensation for moral damage to be recovered should be proportionate to the harm caused and not lead to an infringement of the freedom of the media.

A claim for compensation for non-pecuniary damage can be made independently if, for example, the editorial staff of a mass media voluntarily published a refutation that satisfies the plaintiff. This circumstance must be taken into account by the court when determining the amount of compensation for non-pecuniary damage.

It should be borne in mind that moral damage, although it is determined by the court in a specific sum of money, is recognized by law as non-property harm and, therefore, the state fee should be levied in the amount in accordance with subparagraph 3 of paragraph 1 of Art. 333.19 of the Tax Code of the Russian Federation.

5. The general limitation period, i. E. the period during which a person has the right to go to court with a statement of claim to protect his violated or disputed rights, freedoms and legal interests is three years. At the same time, the requirements for the protection of honor, dignity and business reputation are requirements for the protection of non-property rights, in connection with which the statute of limitations does not apply to them, except for the case specified in paragraph 10 of the commented article, when the statute of limitations according to the requirements imposed in connection with the dissemination of false information in the media, is one year from the date of publication of such information in the relevant media.

6. Applicable law:
- the Criminal Code of the Russian Federation;
- Code of Civil Procedure of the Russian Federation,
- APC RF;
- Code of Administrative Offenses of the Russian Federation;
- ФЗ dated 02.10.2007 N 229-ФЗ "On enforcement proceedings"
- Law of the Russian Federation of December 27, 1991 N 2124-1 "On the Mass Media".

7. Arbitrage practice:
- information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 09.23.99 N 23;
- Resolution of the Plenum of the RF Armed Forces of February 24, 2005 N 3.

Consultations and comments of lawyers under Art 152 of the Civil Code of the Russian Federation

If you still have questions about Article 152 of the Civil Code of the Russian Federation and you want to be sure of the relevance of the information provided, you can consult the lawyers of our website.

You can ask a question by phone or on the website. Initial consultations are held free of charge from 9:00 to 21:00 daily Moscow time. Questions received from 21:00 to 9:00 will be processed the next day.

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

3. If information defaming the honor, dignity or business reputation of a citizen is contained in a document issued by the organization, such a document must be replaced or revoked.

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

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

1. There is no legal definition of honor, dignity and business reputation. Usually in doctrine, honor means social assessment qualities and abilities of a particular person, dignity - self-assessment of their qualities and abilities, reputation (Latin reputatio - thinking, thinking) - the prevailing opinion about a person based on an assessment of his socially significant qualities, including professional (in the latter case, it is customary to talk about business reputation). Moreover, the reputation as prevailing about the person public opinion personified, among other things, through the name (name) (any subject has the right to demand from everyone and everyone that only those actions and (or) events in which he participated are associated with his name (name)) and appearance... Therefore, the protection of reputation is often called the protection of a good name and is also associated with the protection of the image of a citizen (see the commentary to Art. 152.1 of the Civil Code).

Although all these benefits are recognized as independent, in content they are inextricably linked with each other, determining the status of the individual, her self-esteem, position in society and the basis of objective perception by others. In this sense, the protection of reputation coincides with the protection of honor and dignity in the form in which it is provided by law (see for more details: Sergeev A.P. The right to protect reputation. L., 1989, p. 4), and together they serve as a necessary restriction of abuse of freedom of speech and mass information (paragraph 4 of the preamble, paragraph 1 of the Resolution of the Supreme Court No. 3). Therefore, the protection of honor and dignity simultaneously takes place with the protection of the name and the inviolability of personal life (conditionally, this is called the protection of reputation in a broad sense).

2. According to paragraph 1 of Art. 152 the basis for the protection of honor, dignity, business reputation is the simultaneous presence of the following conditions: untrue information about facts of a defamatory nature is disseminated by a third party.

In theory, information about facts that do not correspond to reality is usually understood as factual judgments about the qualities and abilities of a person, his behavior, lifestyle, events that have occurred in life, to which the criteria of truth and falsity are applicable (i.e. there is a possibility of verification), for example, allegations that a person has committed an offense, has sadistic or masochistic inclinations, etc. Judicial practice has taken a position according to which the information contained in court decisions and sentences, decisions of the preliminary investigation bodies and other procedural or other official documents cannot be regarded as untrue information contained in can be refuted in accordance with Article 152 of the Civil Code of the information set forth in the order of dismissal, since such an order can only be challenged in the manner prescribed by the Labor Code) (paragraph 4, clause 7 of the Resolution of the Supreme Court No. 3).

It is necessary to distinguish value judgments from factual judgments, to which the criteria of truth (falsity) are inapplicable, since such judgments express only the private opinion of a third person, his attitude to the subject of thought as a whole or to individual signs (for example, the judgment that a person is friendly (militant ) view, etc.). Therefore, the expression of a value judgment cannot violate honor, dignity and business reputation. It is another matter if such a value judgment is expressed in an indecent form (by means of profanity, etc.), if there are signs of corpus delicti, honor and dignity can be protected by criminal prosecution for insult (Article 130 of the Criminal Code).

The doctrine distinguishes the so-called value judgments with factual reference, which contain statements in the form of an assessment (for example, an indication that a person is mean, unprincipled, etc.). It is impossible to answer unequivocally whether the dissemination of such information should be considered a belittling of honor, dignity and business reputation. From the point of view of content, it is quite difficult to distinguish between simple value judgments from value judgments with factual reference, since the connection with facts is somehow inherent in any assessment of the qualities of the subject. If the information is not neutral in nature from the point of view of ethics and at the same time can be checked for compliance with reality, then only taking into account the specific circumstances in each case, and also in conditions of taking into account the essence of the information, and not individual details, protection of honor, dignity and business reputation appear to be valid.

Defamatory information is considered to be information containing allegations of violation by an individual (legal entity) of the current legislation, committing an dishonest act, wrong, unethical behavior in personal, public or political life, dishonesty in the implementation of economic and entrepreneurial activities, violation of business ethics or business customs, which diminish honor and dignity of a citizen or business reputation of a citizen or legal entity (paragraph 5, clause 7 of the Resolution of the Supreme Court No. 3). Defamation is an estimate, so the above list is not exhaustive. Any information containing negative information of a legal or moral nature should be considered defamatory (see also: A.P. Sergeev, op. Cit. Pp. 24 - 25). However, the problem of qualifying information as defamatory also does not have a universal solution. It is necessary to take into account all the specific circumstances of the case, including those related to the personality of both the injured person and the person who disseminated the information.

The norms of Art. 152 do not apply to cases of so-called defamation, i.e. the dissemination of information that is true to reality, discrediting a person (for example, about the presence of a criminal record, venereal disease, etc.) or even not discrediting, but negatively characterizing, or simply unpleasant or undesirable for a particular person (in particular, the disclosure of family secrets, information about physical shortcomings, etc.). In such situations, the victim's legitimate interests are secured by the rules on the protection of privacy, etc. (This approach has been confirmed in judicial practice - see paragraphs 1, 2, paragraph 8 of the Resolution of the Supreme Court No. 3).

The dissemination of untrue and defamatory information is usually understood to mean the publication of such information in print, broadcast on radio and television, demonstration in newsreel programs and other media, on the Internet, as well as using other telecommunication means, presentation in service characteristics, public speeches, statements addressed to officials, or communication in one form or another, including oral, form to at least one person. The communication of such information to the person concerned cannot be recognized as its dissemination, if the person who provided the information has taken sufficient confidentiality measures (paragraph 2, clause 7 of the Resolution of the Supreme Court No. 3).

The issue of information dissemination is not always obvious. In particular, sometimes citizens apply to state (municipal) authorities with statements containing information (for example, about a committed or impending crime) that does not correspond to reality. In itself, such an appeal cannot serve as a basis for bringing the applicant to civil liability under Art. 152, unless it is established that the appeal to the authorities did not have any grounds and was dictated not by the intention to fulfill a civic duty, but solely by the desire to harm another person (paragraph 10 of the Resolution of the Supreme Court No. 3).

Finally, the distribution of the above information must be carried out by a third party. In particular, this means that the dissemination of any information by a person about himself cannot be considered a circumstance that violates the conditions for the objectivity of the formation of an opinion about the person in question, which not least depends on his own behavior. From the meaning of Art. 152 it follows that this rule has exceptions. So, if a person spreads defamatory information about himself as a result of physical and (or) mental violence, then there is a diminution of honor, dignity and business reputation as a result of the illegal actions of another person, who should act as an obligated party to the demand for the protection of honor, dignity and business reputation.

3. As follows from clauses 1, 7 of the commented article, the subjects of the right to defense are citizens and legal entities who believe that defamatory information that does not correspond to reality has been disseminated about them. The protection of the interests of minors or incapacitated persons is carried out by their legal representatives.

At the request of interested persons (for example, relatives, heirs, etc.), the protection of the honor, dignity and business reputation of a citizen is allowed even after his death. This rule is justified, since the preservation of a good memory of a person is socially significant. In addition, the protection of the interests of the deceased is inextricably linked with the protection of the interests of the living, in particular relatives and friends. Within the meaning of the law, the protection of the business reputation of a legal entity that has ceased to exist is allowed at the request of its successors.

In theory, it is rightly indicated that collectives not endowed with the rights of a legal entity can also act as subjects of the corresponding right to protection in the presence of organizational unity (see for more details: Sergeev A.P. Decree, op. Pp. 11 - 12). For example, a kind of collective can be called a family, any capable member of which can act in defense not only of himself personally, but also on behalf of the whole family as a whole (protection of family honor and reputation).

4. Persons who are the source of information (traditionally they are called authors, although the terminology is not entirely successful), and the persons who disseminated the relevant information are recognized as liable persons for claims for the protection of honor, dignity and business reputation.

For example, depending on the specific circumstances, these persons are: a) the author and editorial staff of the respective media outlet, if the disputed information has been disseminated in the media with an indication of the person who is its source; b) the editorial office of the mass media, i.e. an organization, an individual or a group of individuals engaged in the production and release of a specific mass media (clause 9 of article 2 of the Law on Mass Media), as well as a founder, if the editorial office does not have the status of a legal entity, if during publication or other distribution the defamatory information that corresponds to reality is not indicated by the name of the author (paragraphs 2, 3, paragraph 5 of the Resolution of the Supreme Court No. 3); c) a legal entity (Article 1068 of the Civil Code), whose employee disseminated discrediting and untrue information in connection with the implementation professional activity on behalf of the organization in which he works (for example, in the service profile) (paragraph 4, clause 5 of the Resolution of the Supreme Court No. 3).

5. When filing a claim for the protection of honor, dignity and business reputation, the burden of proof is distributed as follows. The victim must prove the fact of the dissemination of information by the person against whom the claim is made, and their defamatory nature. The defendant, on the contrary, is obliged to substantiate the validity of the disseminated information (paragraph 1 of clause 9 of the Resolution of the Supreme Court No. 3).

The law may establish cases of exemption from liability for the dissemination of inaccurate discrediting information. So, responsibility does not arise if this information is present in mandatory messages; received from news agencies; are contained in response to a request for information or in the materials of the press services of state (municipal) bodies, organizations, institutions, enterprises, bodies public associations; are literal reproduction of fragments of speeches of deputies, delegates to congresses, conferences, plenums of public associations, as well as official speeches officials state (municipal) bodies, organizations and public associations; are contained in works of authorship broadcasted without prior recording, or in texts that cannot be edited; are a verbatim reproduction of messages and materials or their fragments distributed by another mass media, which can be identified and held accountable for this violation(Article 57 of the Law on Mass Media). This list is of a closed nature and is not subject to broad interpretation. Therefore, for example, a reference to the fact that the publication is advertising material (paragraph 1, clause 12 of the Decree of the Supreme Court No. 3) cannot serve as a basis for exemption from liability.

According to clause 6 of the commented article, the protection of honor, dignity and business reputation is ensured by legislation even if it is impossible to identify the person who disseminated inaccurate information (for example, when sending anonymous letters to citizens and organizations or disseminating information on the Internet by a person who is impossible to identify). The victim has the right to apply to the court with a statement on the recognition of such information as untrue in a special procedure (paragraph 3, clause 2 of the Resolution of the Supreme Court No. 3).

6. A special way to protect honor, dignity and business reputation is refutation (clauses 2, 3 of the commented article). However, by its nature, it is a kind of such general way protection, as the suppression of illegal actions and restoration of the situation that existed before the violation, and can be implemented within the framework of: a) non-jurisdictional (for example, the right of a citizen to answer, reply, i.e. publication in the disseminating mass media of his response to publication) or b) the jurisdictional form of protection (in particular, by filing a claim with the court). When the claim is satisfied, the court in the operative part of the decision is obliged to indicate the method and procedure for refuting untrue discrediting information and, if necessary, set out the text of such a refutation, indicating which information is untrue and discrediting, when and how it was disseminated, and also to determine the period , during which it must follow (paragraphs. 1, 2, paragraph 17 of the Resolution of the Supreme Court No. 3).

If inaccurate discrediting information was disseminated in the media, they must be refuted in the same media or, when the release of the media in which the refuted information was disseminated, at the time of consideration of the dispute, is terminated, at the expense of the defendant, refuted in another media information (clause 13 of the Resolution of the Armed Forces N 3). If the specified information is contained in a document issued by the organization, such a document is subject to replacement or withdrawal.

An apology as a way of judicial protection of honor, dignity and business reputation of the Civil Code is not provided, therefore the court does not have the right to oblige the defendants in this category of cases to apologize to the plaintiffs in one form or another. However, the court has the right to approve an amicable agreement, according to which the parties, by mutual agreement, provided for the defendant to apologize in connection with the dissemination of untrue discrediting information regarding the plaintiff, since this does not violate the rights and legitimate interests of others and does not contradict the law (paragraph 2 , 3 p. 18 of the Resolution of the Armed Forces N 3).

Failure to comply with the court decision entails the imposition of a fine on the offender, which is collected as income of the Russian Federation. At the same time, the payment of the fine does not relieve the offender from the obligation to perform the refutation action provided for by the court decision (clause 4 of the commented article).

7. According to paragraph 5 of Art. 152, the refutation of unreliable defamatory information can be applied along with other methods of protection, in particular, compensation for damages (see the commentary to Article 15 of the Civil Code) and compensation for moral damage (see the commentary to Article 151 of the Civil Code), which can only be recovered in the benefit of the plaintiff, but not the persons indicated by him (paragraph 1 of clause 18 of the Resolution of the Supreme Court No. 3).

Currently judicial practice a rather controversial position has been taken on the possibility of compensation for moral damage to a legal entity in the event of a degradation of its business reputation. It is believed that since the rule on the possibility of demanding, along with the refutation of inaccurate discrediting information, losses and moral harm in terms of the business reputation of a citizen, respectively, applies to the protection of the business reputation of legal entities (paragraph 7 of the commented article), so far as this rule in full is also applied in cases of dissemination of such information in relation to a legal entity (paragraph 1 of clause 15 of the Resolution of the Supreme Court No. 3). This position is not consistent with the legal definition of moral harm as physical and mental suffering (paragraph 1 of article 151 of the Civil Code), which can only be experienced by an individual, but not a legal entity, since the latter is an artificially created (fictitious) subject of law.

Be that as it may, if we are to admit the possibility of compensating a legal entity for other (in addition to property) harm, it is necessary to talk about some other kind of non-property harm than moral harm. In particular, in accordance with par. 5 clause 2 of the Constitutional Court's definition of December 4, 2003 N 508-O "On refusal to accept for consideration the complaint of citizen V.A. N 3) 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 method of protecting the business reputation of legal entities does not deprive them of the right to file claims for compensation for losses, including non-material ones, caused by diminishing business reputation, or non-pecuniary damage that has its own content (other than 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.

The position of the Constitutional Court is quite reasonable and complies with the provisions of paragraph 2 of Art. 150 of the Civil Code, however, amendments to the current legislation are required to unequivocally solve this problem.

Judicial practice under article 152 of the Civil Code of the Russian Federation

Decision of the ECHR from 20.06.2017

15. In her statement of claim the applicant complained that the unlawful publication of a photograph of her son in a brochure calling for the adoption of children had defamed the honor, dignity and reputation of her and her son. In particular, the photo was published without her knowledge and consent. The booklet was sent to various organizations in the city of Usolye and the Usolsky District of the Perm Territory (to libraries, hospitals, police stations) and caused a negative attitude towards her and her son from colleagues, neighbors and relatives. The surrounding people decided that she left her son. The boy became the object of ridicule in kindergarten... In addition, the publication of the photo affected her honor and dignity and her reputation as a school teacher. With reference to the articles and the Civil Code of the Russian Federation (see the section "Relevant Legislation of the Russian Federation and Law Enforcement Practice" of this Resolution), she asked the court to award her compensation for moral damage and oblige the publishing house to apologize for publishing the photograph.

Decision of the ECHR of 25.04.2017

9.On 8 December 2004 the District Court considered and partially satisfied the claim, referring to Article of the Civil Code of the Russian Federation and the Resolution of the Plenum The Supreme Court Russian Federation No. 11. He gave the following reasoning:

"... controversial information:" ... [k] which obscenely quickly developed entrepreneurial activity, spitting on the charter of the partnership and a number of regional and federal laws“are subject to refutation [by the defendants] ... since during the trial by the court the defendants did not prove that T.'s actions were unlawful.

Decision of the ECHR of 13.06.2017

The assertion that a crime was committed must be considered in the manner provided for by the Code of Criminal Procedure, therefore N.'s statement cannot be recognized by the court as a value judgment or opinion, and [its reliability] must be proved by submitting to the court criminal procedural documents confirming that in the actions of L.K. there was corpus delicti. In violation of an article of the Civil Code, the defendant did not submit such documents to the court ...

Decision of the ECHR of 03.10.2017

The court cannot accept as grounds for dismissing the claim [for the protection of honor, dignity and business reputation] the arguments of the defendants, according to which the disputed information is opinions, value judgments, not subject to refutation in accordance with the article of the Civil Code, for the following reasons.

Determination of the Supreme Court of the Russian Federation of 09.01.2018 N 305-ES17-19519 in case N A40-211675 / 2016
Determination of the Supreme Court of the Russian Federation of 09.01.2018 N 303-ES17-19915 in case N A24-84 / 2017

According to the article of the Civil Code of the Russian Federation, a person has the right to demand in court a refutation of information discrediting his business reputation, if the person who disseminated such information does not prove that it is true; if information discrediting the business reputation of a legal entity is disseminated in the media, they must be refuted in the same media.

Determination of the Supreme Court of the Russian Federation of 23.01.2018 N 305-ES17-20889 in case N A40-166380 / 16
Determination of the Constitutional Court of the Russian Federation of 25.01.2018 N 62-О

ARTICLES OF THE CIVIL CODE OF THE RUSSIAN FEDERATION,

AND ALSO PART 1 OF ARTICLE 6 OF THE FEDERAL LAW "ON THE ORDER

CONSIDERATION OF APPEALS OF CITIZENS OF THE RUSSIAN FEDERATION "

The Constitutional Court of the Russian Federation, composed of Chairman V.D. Zorkin, judges K.V. Aranovsky, A.I. Boytsova, N.S. Bondar, G.A. Gadzhieva, Yu.M. Danilova, L.M. Zharkova, S.M. Kazantsev, S.D. Knyazeva, A.N. Kokotova, L.O. Krasavchikova, S.P. Mavrina, N.V. Melnikova, Yu.D. Rudkina, O.S. Khokhryakova, V.G. Yaroslavtsev,

Determination of the Supreme Court of the Russian Federation of 27.02.2018 N 309-ES17-23545 in case N A60-60916 / 2016

According to the article of the Civil Code of the Russian Federation, a legal entity has the right to demand in court a refutation of information discrediting its business reputation, if the person who disseminated such information does not prove that it is true; if information discrediting the business reputation of a legal entity is disseminated in the media, they must be refuted in the same media.

Determination of the Supreme Court of the Russian Federation dated 02.26.2018 N 309-ES17-23372 in case N A07-26792 / 2016

According to the article of the Civil Code of the Russian Federation, a person has the right to demand in court the refutation of information discrediting his business reputation, if the person who disseminated such information does not prove that they correspond to reality; if information defaming business reputation is disseminated in the media, they must be refuted in the same media.

Determination of the Supreme Court of the Russian Federation of 12.03.2018 N 304-ES18-71 in case N A27-13325 / 2016