On the application in judicial practice of legislation on the protection of honor, dignity and business reputation of individuals and legal entities
Normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 18, 1992 No. 6.
The footnote. The name of the resolution is in the wording of the resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated May 15, 1998 N 5 P98005s. The name and the preamble were amended by the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 10.
The footnote. Throughout the text, the words "RK" are excluded by the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 22.12.2008 N 4 (for the procedure of entry into force, see paragraph 2)
The measures provided for by the legislation aimed at preventing the dissemination of untrue information that detracts from the honor, dignity, and business reputation of individuals and legal entities are an effective means of protecting personal non-property rights and benefits.
For the purposes of uniform application of legislation on the protection of honor, dignity, and business reputation of individuals and legal entities, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
Courts should keep in mind that the dissemination of information discrediting the honor and dignity of a citizen or an organization means publishing it in the press, broadcasting it on radio, television, using other mass media, presenting characteristics, public speeches, statements addressed to various organizations, officials, or otherwise, including verbally to several persons or at least one person. The communication of such information to only one person concerned cannot be recognized as its dissemination.
Defamatory information is such untrue information that detracts from the honor and dignity of a citizen or organization in public opinion or the opinion of individual citizens from the point of view of compliance with laws, moral principles of society (for example, information about committing dishonest acts, misconduct in the workforce, in the family; information discrediting industrial and economic activities, reputation, etc. etc.). At the same time, demands for refutation of information containing relevant criticism of shortcomings in work, in a public place, in a team, or in everyday life cannot be considered justified.
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.
The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
When considering civil cases initiated on the grounds and in accordance with the procedure provided for in Articles 141, 143 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), Articles 23 and 150 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the courts must fully clarify whether information has been disseminated, the refutation of which is sued, discredits whether they represent the honor and dignity of a citizen, the reputation of an organization, and whether this information is true.
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. <*>
The footnote. Paragraph 2 as amended by the regulatory resolutions of the Supreme Court of the Republic of Kazakhstan dated 06/18/2004 No. 10; dated 03/31/2017 No. 2 (effective from the date of the first official publication).
In accordance with the procedure provided for in Article 23 of the CPC and Article 143 of the Civil Code, demands for refutation of information contained in court decisions and verdicts, decisions of law enforcement agencies and other official documents, for which a different procedure is provided by law, cannot be considered. <*>
The footnote. Paragraph 3 as amended by the regulatory resolutions of the Supreme Court of the Republic of Kazakhstan dated 06/18/2004 No. 10; dated 03/31/2017 No. 2 (effective from the date of the first official publication).
In accordance with Article 8 of the CPC, an interested person has the right to judicial protection of honor and dignity if the publication does not specify the names of specific persons, but it is clear from the text who they are talking about, as well as in the case when defamatory information is disseminated regarding a deceased member of his family or another close relative included in the circle. heirs according to the law. <*>
The footnote. Paragraph 4 was amended by the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 10.
If defamatory information is disseminated about a minor or a person recognized as legally incompetent, legal representatives (for example, guardians, trustees) or a prosecutor may file a claim for the protection of his honor and dignity in accordance with the procedure provided for in part three of Article 54, Article 55, part four of Article 148 of the CPC. <*>
The footnote. Paragraph 5 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/18/2004 No. 10; dated 03/31/2017 No. 2 (effective from the date of the first official publication).
Based on the meaning of Articles 9 and 143 of the Civil Code, in the event that the actions of a person who has spread fabrications discrediting another person contain signs of a crime under Article 130 or Article 131 of the Criminal Code of the Republic of Kazakhstan, the victim has the right to apply to the court in criminal proceedings (Article 408 of the Criminal Procedure Code of the Republic of Kazakhstan) to involve the perpetrator to be criminally liable and to file a claim for the protection of honor and dignity in civil proceedings.
The refusal of a court to institute criminal proceedings, the imposition of an indictment and acquittal, or the termination of criminal proceedings against a person who disseminated defamatory information do not prevent the initiation of civil proceedings. <*>
The footnote. Item 6 as amended by Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated 05/15/1998 No. 5 P98005s_; regulatory resolutions of the Supreme Court of the Republic of Kazakhstan dated 06/18/2004 No. 10; dated 03/31/2017 No. 2 (effective from the date of the first official publication).
If the claim contains a requirement to refute information disseminated in the press, other mass media (radio, television, etc.), the author and the relevant media body (editorial office, publishing house, etc.) 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 defamatory statements. the plaintiff has information that is found to be untrue. When publishing or otherwise distributing such information without naming the author (for example, in an editorial), the defendant in the case is the relevant media body.
In cases of claims for refutation of defamatory information contained in official, household and other types of characteristics, the persons who signed them and the enterprise, institution, organization on whose behalf the characteristic was issued are recognized as the defendants. <*>
The footnote. Paragraph 7 was amended by Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated May 15, 1998 No. 5 P98005s_; Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 10 .
According to paragraph 3 of Article 141 and paragraph 1 of Article 143 of the Civil Code, the obligation to prove that the disseminated information is true lies with the defendant. The plaintiff is obliged to prove only the fact of dissemination of information discrediting him by the person against whom the claim is filed, while he also has the right to provide evidence of inconsistency with the reality of information discrediting his honor and dignity. If the evidence is insufficient, the court has the right to invite the parties to provide additional evidence or to demand it on its own initiative. <*>
The footnote. Paragraph 8 was amended by Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated May 15, 1998 No. 5 P98005s_; Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 10 .
If the information disputed by the plaintiff was reproduced by the mass media from official reports, speeches at meetings, or author's speeches broadcast, or received from news agencies, then, in accordance with articles 49 and 50 of the CPC, the courts may involve in the case as a defendant, along with the editorial office of the media, the body or the person who was the source of such information. In this case, the obligation to prove that the disseminated information is true lies with the specified authority and person.
In accordance with Article 143 of the Civil Code, publication in the press or other communication (on radio, television, etc.) about a court decision that recognized the disseminated information as discrediting the honor and dignity of a person and not corresponding to reality is carried out by the same mass media that disseminated this information. Comments by the respondent media in the case that contradict the court's conclusion are unacceptable. If such comments are allowed, the court's decision is considered unfulfilled.
A citizen or an organization has the right to file a lawsuit against several mass media bodies and other bodies and persons who have disseminated information discrediting his honor and dignity and not corresponding to reality (Article 49 of the CPC). <*>
The footnote. Item 9 as amended by Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated 05/15/1998 No. 5 P98005s_; regulatory resolutions of the Supreme Court of the Republic of Kazakhstan dated 06/18/2004 No. 10; dated 03/31/2017 No. 2 (effective from the date of the first official publication).
By virtue of Article 187 of the Civil Code, the statute of limitations does not apply to demands for refutation of information discrediting the honor and dignity of the plaintiff, except in cases provided for by law. <*>
The footnote. Paragraph 10 as amended by Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated 05/15/1998 No. 5 P98005s_; regulatory resolutions of the Supreme Court of the Republic of Kazakhstan dated 06/18/2004 No. 10; dated 03/31/2017 No. 2 (effective from the date of the first official publication).
If the information discrediting the plaintiff is recognized by the court to be true, as well as if the disseminated information is not defamatory, the demands for their refutation are not subject to satisfaction.
When satisfying a claim, the court is obliged to indicate in the operative part of the decision which specific defamatory information is found to be untrue and in what way they should be refuted.
A rebuttal is defined as a public announcement that widespread information that discredits the honor, dignity, or business reputation of a citizen or a legal entity is untrue.
The procedure for refuting defamatory information disseminated in the media and in documents originating from organizations is defined by paragraph 2 of Article 143 of the Civil Code.
In other cases, the procedure for refutation is established by the court.
In determining the procedure for refutation, the court is obliged to ensure that in all cases defamatory information is publicly declared to be untrue (the announcement of the decision in the press, on radio, television, etc.).
The footnote. Paragraph 12 as amended by Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated 05/15/1998 N 5 P98005s_; as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 2 (effective from the date of the first official publication).
The plaintiff, simultaneously with the claim for the protection of honor and dignity, has the right to file a claim for compensation for material damage caused by the dissemination of defamatory information.
Along with the claim for the protection of honor and dignity, the court has the right to consider the claim of a citizen or a legal entity for compensation for moral (non-material) damage caused to him as a result of the dissemination by the defendant of untrue information discrediting his honor and dignity, or causing other non-material damage. The amount of compensation for moral (non-material) harm is determined in monetary terms when making a decision, depending on the nature of the information (accusation of criminal acts, administrative and civil offenses, immoral acts, etc.), the limits of their dissemination, the form of guilt of the defendant, his financial situation and other circumstances worthy of attention.
The limitation period does not apply to claims for compensation for moral (non-material) damage (Article 187 of the Civil Code). <*>
The footnote. Paragraph 13 as amended by Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated 05/15/1998 N 5 P98005s_; regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 2 (effective from the date of the first official publication).
In order to eliminate and prevent the facts of humiliation of the honor and dignity of citizens and organizations, the courts should discuss the issue of making private rulings against individuals or organizations that have disseminated defamatory information that does not correspond to reality.
If a decision to refute information discrediting the honor, dignity and business reputation of an individual or a legal entity is not executed or improperly executed within the prescribed period, the defendant may be held administratively or criminally liable in accordance with the procedure provided for by legislative acts.
The payment of a fine does not release the violator from the obligation to comply with the decision to refute the information disseminated discrediting the plaintiff. <*>
The footnote. Paragraph 15 was amended by the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 10.
In connection with the adoption of this resolution, the resolution of the Plenum of the Supreme Court of the USSR of March 2, 1989 No. 2 "On the application in judicial practice of Article 7 of the Fundamentals of Civil Legislation of the USSR and the Union Republics on the protection of the honor and dignity of citizens and organizations" with subsequent additions and amendments is not valid in the Republic of Kazakhstan.
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.
The footnote. The regulatory resolution was supplemented by paragraph 17 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
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