Commentary to article 143. Protection of honor, dignity and business reputation The Civil Code of the Republic of Kazakhstan
Honor is a public assessment of a citizen based on his moral, business, family and other qualities. Essentially related categories are the reputation and prestige of a person, as well as the common notion of a good name. Dignity is a person's awareness of their value, the significance of their qualities and abilities, i.e. self-esteem of a person. The dignity (self-esteem) of a person can be protected only within the limits of its coincidence with public assessment (honor). An excessively high opinion of a subject about himself is not protected by law. Therefore, in civil law, these concepts are used almost as equivalent. But if honor and dignity are used only in relation to a citizen, then the term "business reputation" applies to both a citizen and a legal entity.
The commented article sets out several conditions that together give rise to the concept of encroachment on the honor, dignity or business reputation of a citizen or a legal entity.
First, it is necessary that defamatory information be disseminated. The methods (oral, written, etc.) of distribution do not matter. It is only necessary that they be reported to a third party, and not to the victim himself. The Plenum of the Supreme Court of the Republic of Kazakhstan in Resolution No. 6 dated December 18, 1992 He determined that the dissemination of information discrediting the honor and dignity of a citizen should be understood as its publication in the press, a message on radio, television, using other mass media, presentation in official and other characteristics, public speeches, statements addressed to various organizations, officials, or a message in another, including verbally, in the form of several persons or at least one person.
Secondly, by its nature, the information disseminated must be defamatory. Defamatory information is information that detracts from the honor, dignity or business reputation of a citizen or a legal entity in public opinion or the opinion of individual citizens in terms of compliance with laws and moral norms of society. The dissemination of defamatory information is possible not only in the form of reports of specific facts, but also in the form of a general assessment of a person's behavior, moral character and business reputation (for example, Citizen M. is a morally dissolute person; Partnership "X" is an unreliable organization in business terms). Information is not defamatory if it contains value judgments that are not based on specific facts related to a person's activities: these assessments are a matter of each person's inner conviction. Such assessments may be about certain aspects of the organization's activities (the "Z" partnership has an unsuccessful work schedule), the social qualities of a person (a bad writer) or his natural shortcomings (a lame person).
Thirdly, it is necessary that defamatory information disseminated about someone does not correspond to reality (that is, it is fictitious, far-fetched, unrelated to this person or his actions, etc.). If the facts and assessments are stated correctly, then no matter how negative they may be, they cannot be considered defamatory. Such cases include critical remarks that, to one degree or another, damage the honor, dignity and business reputation of a person, but due to their objectivity (that is, their correspondence to reality) cannot be refuted.
The commented article defines, in relation to certain situations, a special procedure for refuting false defamatory information, which gives courts guidelines when making decisions.: the method of refutation must correspond to the method of dissemination of defamatory information. So, if defamatory information is disseminated by a media body, it must be refuted free of charge by the same body. Accordingly, it is subject to replacement, for example, a characteristic issued by the organization, etc.
Article 27 of the Law of the Kazakh SSR "On the Press and Other Mass Media" dated June 28, 1991 provides details of how defamatory information is refuted. A refutation or response from a citizen or organization in respect of which information infringing on their rights and legitimate interests has been published in the media is published in a special heading or on the same page and in the same font as the refuted message: in newspapers - no later than one month from the date of receipt of the request, in other periodicals - in the next issue being prepared. A rebuttal or response is read out by a radio or television announcer in the same program or program cycle and at the same time, no later than one month from the date of receipt of the request. The right to respond may also be granted to the citizen himself or a representative of the organization requesting the publication of the response. The editorial board is obliged to publish a response of up to one page of standard typewritten text, which is not allowed to be edited.
According to Article 28 of the Law, in case of refusal to publish a refutation or response, or violation by the media of the one-month deadline set for such publication, the concerned citizen or organization has the right to apply to the court within one year from the date of publication.
Paragraph 3 of the commented article contains an important rule that when information infringing on the rights or legitimate interests of a person is published in a media body, he has the right to publish his response in the same media body. This provision thus helps to protect the rights of citizens or legal entities, even in situations where the published information is true, giving them the opportunity to explain the circumstances surrounding the occurrence of such a situation.
If the restoration of honor and dignity itself occurs regardless of the guilt of the offender, then compensation for losses and moral damage is possible only according to the general rules of civil law, that is, as a rule, if the offender is guilty.
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The commentary was prepared within the framework of the scientific and practical research program of the Scientific Research Center of Private Law of the Kazakh State Law University.
Head of the working group on the preparation of the draft Civil Code of the Republic of Kazakhstan, Corresponding Member of the Academy of Sciences of the Republic of Kazakhstan, Professor Suleimenov M.K.
Deputy head Professor Basin Yu.G.
