Civil cases on business reputation protection claims
In accordance with article 18 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their honor and dignity.
According to article 20 of the Constitution of the Republic of Kazakhstan, everyone is guaranteed freedom of speech and creativity, as well as freedom of information in any way not prohibited by law.
By virtue of article 4 of the Constitution of the Republic of Kazakhstan, generally recognized principles and norms of international law and international treaties of the Republic of Kazakhstan are an integral part of its legal system.
In accordance with Article 143 of the Civil Code, if information discrediting the honor, dignity or business reputation of a citizen or a legal entity is disseminated in the media, it must be refuted free of charge in the same media.
A citizen or a legal entity in respect of whom information infringing on his rights or legitimate interests has been published by the mass media has the right to publish his response free of charge in the same mass media.
The demand of a citizen or a legal entity to publish a refutation or response in a mass media outlet is considered by the court if the media outlet has refused such publication or has not published it within a month, as well as in the event of its liquidation.
The legislation of the Republic of Kazakhstan, namely, parts of Article 143 of the Civil Code and Article 19 of the Law of the Republic of Kazakhstan "On Mass Media", obligatorily prescribe that the demand of a citizen or a legal entity to publish a rebuttal or response in a mass media outlet is considered by a court if the media body has refused such publication, or within has not made a publication for a month, as well as in the event of its liquidation.
According to paragraph 7 of the normative resolution of the Supreme Court of the Republic of December 18, 1992 No. 6 "On the application in judicial practice of legislation on the protection of honor, dignity and business reputation of individuals and legal entities", if the claim contains a requirement to refute information disseminated in the press, other mass media (radio, television, etc.), the author and the relevant mass media body are involved as the defendant, to whom, in accordance with paragraph 2 of Article 143 of the Civil Code, the court has the right to impose the obligation to refute information discrediting the plaintiff., recognized as untrue.
The proper defendants in lawsuits for the protection of honor, dignity and business reputation are the authors of false defamatory information, as well as the persons who disseminated this information.
If the disputed information has been disseminated in the mass media with an indication of the person who is its source, then this person is also the proper defendant.
When publishing or otherwise distributing defamatory information that does not correspond to reality without naming the author, the appropriate defendant in the case is the editorial office of the relevant mass media, that is, an organization, an individual, or a group of individuals engaged in the production and release of this mass media.
Often, both the parties to the case and the courts do not distinguish between the concepts of honor, dignity and business reputation, which are indicated collectively as one object of protection.
For example, it follows from the circumstances of the case that defamatory information affects only the honor of a person, but the claim is filed to protect both honor, dignity, and business reputation.
The operative part of the court's decision is formulated in a similar way. Meanwhile, in paragraph 1 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 18, 1992 No. 6 "On the application in judicial practice of legislation on the protection of honor, dignity and business reputation", each of these concepts is given independent definitions.
Honor is a public assessment of a person, a measure of his spiritual and social qualities.
Dignity is a person's internal self-assessment of their own qualities, abilities, worldview, and social importance.
Business reputation is a stable positive assessment of a person's business (industrial, professional) merits by public opinion.
Based on the meaning of the content of these definitions, a legal entity cannot possess honor (assessment of moral and other qualities of a person), and even more so dignity (self-esteem of a person, awareness of his qualities, abilities.
At the same time, both an individual entrepreneur and a commercial organization, as well as an individual who is not an entrepreneur and a non-profit organization, can have a business reputation.
In particular, information (provided that it does not correspond to reality) containing allegations of a violation by a person of the current legislation regulating a certain field of activity, improper behavior, dishonesty in carrying out professional (entrepreneurial) activities, violation of business ethics or business practices, etc. should be considered defamatory.
Such information harms a reputation if it inspires distrust, points to reprehensible properties, calls into question professional qualities, puts in an unfavorable light, compromises, discredits, denigrates, shames a particular person.
Commercial organizations file lawsuits in connection with the dissemination of defamatory information in the media.
Thus, Okzhetpes-T LLP appealed to the Temirtau City Court of the Karaganda region with a lawsuit to protect the business reputation of a legal entity against the editorial board of the Temirtau Worker newspaper and the newspaper's editor, O.I. Gusev, arguing that on June 15, 2016, the newspaper published an article containing information that was untrue and defamatory. the business reputation of a legal entity, namely information that the Partnership, which is a subject of a natural monopoly, bills consumers illegally, which is not true. The claim was not recognized by the defendants on the grounds that the article contains only assumptions and judgments about the legality of the Partnership's activities, but this information does not discredit the plaintiff's business reputation.
In the decision on the case, the court analyzed the norms of the current legislation governing the activities of the Partnership and concluded that there were no violations indicated in the published article.
In this regard, the claim regarding the requirement to oblige the defendants to refute the published information was satisfied. Regarding the public apology made by the newspaper's editor through the media, the claim was denied, since the author of the article exercised his right to express his opinions and judgments on the issues indicated in the article.
The Court of Appeal upheld this decision.
Sometimes legal entities mistakenly claim compensation for moral damage.
The director of Kyran 2009 LLP, Konakbayuli Yerik, initially appealed to the Kostanay City Court of the Kostanay region with a claim against the defendant, Ivan Andreevich Kriklivtsev, for the protection of the honor, dignity of the head and business reputation of a legal entity, citing this as follows. Kyran 2009 LLP is an organization engaged in security activities, including an agreement with PKST Tekstilshchik.
The newspaper "Nash Kostanay" No. 8 dated 28.01.2016 published an article "An unfortunate turn of the case", which cites the defendant's statements that the security services of PKST "Tekstilshchik" were imposed on summer residents, the majority of gardeners voted against hiring security guards, and the number of thefts after Kyran-2009 LLP began its work. responsibilities in the PKST "Tekstilshchik" have increased.
The plaintiff asked the court to recognize the information disseminated by the defendant in the article "An unfortunate turn of the case" No. 8 dated January 28, 2016, signed by Olga Gorai in the newspaper "Nash Kostanay" as unreliable and discrediting the honor, dignity and business reputation of Kyran 2009 LLP; to collect monetary compensation for moral damage in favor of Konakbayuli Yerik in the amount of 100,000 tenge from Ivan Andreevich Kriklivtsev; to recover monetary compensation for moral damage in favor of Kyran 2009 LLP from the defendant Ivan Andreevich Kriklivtsev in the amount of 250,000 tenge. The court's decision denied the claim.
At the same time, it is noted that the violation of the personal non-property rights of the plaintiffs has not been proven. In addition, it was clarified that a legal entity is not entitled to claim compensation for moral damage, this right belongs exclusively to an individual. The court's conclusion is based on the norm of paragraph 6 of Article 143 of the Civil Code, according to which a citizen, in respect of whom information discrediting his honor, dignity or business reputation has been disseminated, has the right, along with refuting such information, to demand compensation for losses and moral damage caused by its dissemination.
The rules of this article on the protection of a citizen's business reputation apply accordingly to the protection of the business reputation of a legal entity, with the exception of the claim for compensation for moral damage. The rules on compensation of losses are applied to the protection of the business reputation of a legal entity in accordance with the procedure established by the Civil Code.
Applying to the court for protection of business reputation by government agencies
The KSU "Center for the Adaptation of Minors of the Aktobe region" filed a lawsuit with the Aktobe city Court against the defendants Abdirova A.D., Klimonova O.P., Kanatov B., Nurbaev S.A. for the protection of honor, dignity and business reputation, arguing that on August 01, 2014, a group of the national preventive mechanism for the Aktobe region consisting of Kanatova B., Nurbayeva S.A., Abdirova A.D., Klimonova O.P. visited the municipal state institution "Center for Juvenile Adaptation of Aktobe region".
According to the results of the visit, the defendants compiled a report in which they disseminated information about the administration of the Central Bank that did not correspond to reality and discredited honor, dignity and business reputation.
By the court's decision, which was left unchanged by the court of appeal, the claim was satisfied, the information indicated was found to be untrue, and the defendants were required to provide a rebuttal by informing the general meeting of the labor collective of the KSU "Center for Juvenile Adaptation of Aktobe region" about the inconsistency of the information contained in the report with an apology.
Appellate and cassation instances
The higher authorities will lawfully clarify the circumstances of the dispute and amend or cancel the decisions of the courts of first instance if the conclusions of the court of first instance set out in the decision do not correspond to the circumstances of the case, violations or improper application of substantive or procedural law, etc.
According to paragraph 8 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 6 dated December 18, 1992 "On the application in judicial practice of legislation on the protection of honor, dignity and business reputation of individuals and legal entities", the plaintiff is obliged to prove only the fact of dissemination of defamatory information by the person against whom the claim is filed. In addition, in accordance with paragraph 2 of the regulatory resolution, if information discrediting honor and dignity is found to be untrue, the obligation to refute it lies with the defendant, regardless of whether he is guilty of spreading this information.
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