On the Protection of Honor, Dignity, and Business Reputation of Individuals and Legal Entities

According to the requirements of the Law on Mass Media, consent of the person depicted is not required for the distribution of mass media products if the use of the person’s image is carried out for the purposes of protecting the constitutional order, safeguarding public order, human rights and freedoms, and public health and morals.

N. filed a lawsuit against an LLP seeking recognition of the dissemination of images (information) without the person’s consent as defamatory to honor and dignity, and compensation for moral damages. The plaintiff argued that on October 24, 2013, the defendant unlawfully published his image on the website www.azh.kz without his consent. He believes that the defendant arbitrarily and unlawfully interfered in his private life and violated his personal non-property rights and interests, including the inalienable right to his own image. In addition, he claims that the defamatory publication caused him moral harm, as he experienced humiliation and shame as a result of the defendant’s unlawful actions.

By the decision of the Atyrau City Court dated July 18, 2024, the claim was partially satisfied. The court recognized the dissemination of images (information) without consent on the website www.azh.kz by the LLP as defamatory to the honor and dignity of N. The court ordered the LLP to pay N. moral damages in the amount of 30,000 tenge.

By the ruling of the Judicial Collegium for Civil Cases of the Atyrau Regional Court dated November 6, 2024, the decision of the court of first instance in the satisfied part was reversed, and a new decision was issued rejecting the claim in that part.

It was established that on October 24, 2013, an article titled “Suspect in the murder of a schoolgirl filmed porn” with a photo of the plaintiff was published on the defendant’s website www.azh.kz. At the time of consideration of the case, the published article with the plaintiff’s photo had been removed.

The right of everyone to protect their honor and dignity, the right to freely disseminate information by any means not prohibited by law, and the right to freedom of speech are constitutional rights. According to Article 143 of the Civil Code, a citizen has the right to demand in court a refutation of information that defames their honor, dignity, or business reputation.

In accordance with paragraph 3 of Article 141 of the Civil Code, a person filing a protection claim must prove the fact of violation of their personal non-property right. However, such facts were not provided by the plaintiff.

As noted above, defamatory information is considered to be information that lowers public assessment of a person, harms their honor and dignity, damages business reputation, or is knowingly false.

According to the law, the burden of proving the falsity of information lies with the defendant (i.e., the person who disseminated the information).

Thus, according to paragraph 8 of the Regulatory Resolution on the Protection of Honor, Dignity, and Business Reputation, under paragraph 3 of Article 141 and paragraph 1 of Article 143 of the Civil Code, the obligation to prove that the disseminated information corresponds to reality lies with the defendant. The plaintiff must only prove the fact of dissemination of defamatory information by the defendant, while also having the right to present evidence of its falsity.

By a final verdict of the Specialized Interdistrict Criminal Court dated February 6, 2014, N. was convicted under several articles of the Criminal Code of the Republic of Kazakhstan and sentenced to life imprisonment in a maximum-security penal institution.

Therefore, the statements concern specific facts confirmed by judicial acts.

In addition, under subparagraph 3) of paragraph 1-1 of Article 14 of the Law on Mass Media (in force at the time of publication), consent of the depicted person is not required if the use of the image is carried out for the protection of the constitutional order, public order, rights and freedoms of individuals, health, and morals.

Under these circumstances, the appellate court’s decision to dismiss the claim appears justified.

Another Example

K. filed a lawsuit against P. and a Ministry seeking a ban on further publication and dissemination of a photograph of the plaintiff, as well as compensation for moral damages.

The claim was based on the fact that on June 19, 2023, on the Instagram account “poleznyi_ekibastuzets” created by the defendant, a photograph of the plaintiff was published. As a result, other people began stopping K. and asking whether he was the person shown in the image, causing him shame, anger, despair, and discomfort.

By the decision of the Ekibastuz City Court of Pavlodar Region dated September 20, 2023, the claim was partially satisfied: P. was ordered to pay K. moral compensation in the amount of 100,000 tenge.

Justifying the partial satisfaction of the claim, the court of first instance stated that under paragraphs 1 and 2 of Article 145 of the Civil Code, no one has the right to use a person’s image without their consent; publication and distribution of an image (painting, photograph, film, etc.) is allowed only with consent, except in cases provided by law or when the person posed for payment; the fact of publication and distribution of the plaintiff’s photograph without consent was proven; and the image was publicly accessible and led to numerous comments and moral harm.

At the time of consideration of the case, the photograph had been removed, therefore the claim regarding its removal was rejected, while moral damages were awarded partially.

The court also established that the photograph had previously been posted by the plaintiff on his own Instagram page with unrestricted public access, and that the defendant could have copied it from there for further use.

According to subparagraph 4) of Article 1 of the Law of the Republic of Kazakhstan “On Informatization,” information objects include electronic resources, software, internet resources, and ICT infrastructure. Under the Law on Mass Media, an internet resource is also considered a mass media outlet. Instagram, as an internet resource, falls under this definition.

According to subparagraph 2) of paragraph 1-1 of the Law on Mass Media, consent is not required if the image was published by the person themselves on an open-access source.

In this case, the plaintiff had publicly posted the photograph on Instagram without restricting access.

Therefore, no special permission was required to use the photograph, and there were no grounds for awarding moral damages.

Moreover, the court found that the plaintiff had not provided sufficient, admissible, and reliable evidence supporting his claims.

Thus, the appellate court amended the decision and rejected the claim.

Jurisdiction (Venue)

Jurisdiction for this category of disputes is determined under general rules established by Article 29 of the Civil Procedure Code (claims are filed at the defendant’s place of residence or location).

Under Part 12 of Article 30 of the CPC, claims against multiple defendants may be filed at the location of one of them, at the plaintiff’s choice.

Cases on protection of honor, dignity, and business reputation are heard by courts of general jurisdiction. Claims involving legal entities are also under the jurisdiction of district (city) courts. If parties include legal entities or individual entrepreneurs, the case is heard by commercial courts.

Cases involving the protection of rights and interests of minors fall under exclusive jurisdiction and are heard by specialized interdistrict juvenile courts.

The analysis showed that courts generally comply with jurisdiction rules; however, there are some violations.

For example, by order of the Mughalzhar District Court of Aktobe Region dated April 30, 2024, in a case concerning a claim by Ш. against С. for public apology on social media, a mediation agreement was approved.

The plaintiff acted in the interests of a minor child whose photos and videos containing false and defamatory information were published by the defendant.

Since the case involved the interests of a minor child, it should have been heard by a specialized juvenile court, but this was not done.

Under Article 32 of the CPC (as amended by Law No. 84-VII), parties may agree on territorial jurisdiction (forum selection), which is binding on both parties and the court if made in writing.

State duty

In accordance with subparagraph 7) of Article 610 of the Tax Code, a state duty in the amount of 0.5 monthly calculation index (hereinafter referred to as MCI) is levied on claims of a non–property nature.

According to subparagraph 14) of Article 610 of the Tax Code, 1% of the amount of the claim is charged from individual claims for monetary compensation for moral damage caused by the dissemination of information discrediting honor, dignity and business reputation.

The analysis showed that the courts in most cases correctly calculate the state fee when filing a claim.

But there are some disadvantages.

By virtue of paragraph 7 of the Regulatory Decree on Court Costs, a statement of claim that does not include a document confirming payment of the state fee, or payment was not made in full or according to inappropriate details (beneficiary, code, CBC, etc.) in accordance with Article 152 of the CPC is subject to refund, since non-payment of the state fee prevents the initiation of civil proceedings. business.

Thus, in some courts there is a practice of charging a state fee in the amount of one MCI for a claim to protect honor, dignity and business reputation, which is incorrect.

Thus, according to the requirements of the Tax Code, when filing a claim, in the case of a claim for the protection of honor, dignity and business reputation only, a state fee of 0.5 MCI is charged. In the case of a claim for compensation for moral damage, a state fee of 1% of the claimed amount must be paid.

Simplified production

Article 267-2 of the CPC provides for a list of cases that can be considered in a simplified (written) procedure.

The generalization showed that all cases are considered by the courts according to the rules of claim proceedings.

At the same time, there is one case that has been considered in a simplified (written) procedure.

Sh. and A. filed a lawsuit against T. for the protection of honor, dignity and business reputation and compensation for moral damage.

By a ruling of the Kyzylorda City Court dated December 06, 2024, it was decided to consider the case in a simplified procedure.

By the decision of the same court dated December 30, 2024, the claim was satisfied. Moral damage in the amount of 1,000,000 tenge was recovered from the defendants.

By a court ruling dated January 20, 2025, the court's decision was overturned.

The claim was denied by a court decision that entered into force on April 14, 2025.

Cases on the protection of honor, dignity and business reputation belong to the category of non-material disputes.

This category of cases should be considered by the courts according to the rules of claim proceedings, since it is related to the protection of intangible rights, requires a detailed examination of evidence, an assessment of the content of disputed information, and often the appointment of linguistic and other expertise.

To clarify all the circumstances in such cases, a number of evidence should be examined or additionally claimed, therefore, we recommend that the courts use the provisions of subitems 5), 6) of part 3 of Article 267-1 of the CPC.

Claim refund

Article 152 of the CPC provides for an exhaustive list of grounds for returning a claim.

In practice, there are cases of claims for recognition of information disseminated on YouTube, Telegram channels and Facebook as untrue and discrediting the honor, dignity and business reputation of the plaintiff.

Some courts return such claims with reference to paragraph 3 of Article 143 of the Civil Code, which provides for a mandatory pre-trial procedure in cases where the demands of a citizen or a legal entity for the protection of honor and dignity are related to the publication of a rebuttal (response) in the media.

Thus, by a ruling of the Taraz City Court dated July 25, 2024, the claim of E. to D. and others for recognition of the publication as untrue and defamatory of business reputation was returned with reference to subparagraph

1) part 1 of Article 152 of the CPC due to non-compliance with the pre-trial dispute settlement procedure.

According to Article 143 of the Civil Code, if information discrediting the honor, dignity or business reputation of a citizen or a legal entity,

If they are disseminated in the media, they 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.

In this case, publications were posted by the defendants on the YouTube social network and the Basho Telegram channel, accessible to any user. In this regard, social networks are not responsible for the publication of users.

In these circumstances, the court's conclusions about the need for the plaintiff to send a request to the defendants to refute the publications in the pre-trial settlement of the dispute do not seem to be correct.

Another example: by the ruling of the court of the G.Musrepov district of the North Kazakhstan region dated July 28, 2023, on the same basis, the claim of S. against B. and others for recognition of information that does not correspond to reality, discrediting honor, dignity and business reputation was returned.

The judge pointed out that the plaintiff had submitted an online resource to the YouTube partner program, an online publication.

"Agroblog.kz "I did not contact YouTube about the refutation of the distributed video material, and I did not provide the court with a refusal to publish the refutation.

Judicial Board for Civil Cases  The North Kazakhstan Regional Court legitimately considered that the refund was unjustified, since the plaintiff had not filed any claims against the media, and there were no demands for publication of a refutation in the claim.

The plaintiff's claims for recognition of information as untrue, discrediting honor, dignity and business reputation were filed against three individuals without demands for their refutation, therefore there were no grounds for returning the claim.

Leaving a claim without consideration

The grounds for leaving a claim without consideration are regulated by the norms of Article 279 of the CPC.

The generalization showed that this norm of the procedural law is generally respected by the courts.

At the same time, there are examples when courts return a claim on grounds not provided for by law.

Thus, by the ruling of the Kokshetau City Court of June 4, 2024, B.'s claim against O. for the protection of honor and dignity and the recovery of the amount was returned on the grounds that the plaintiff had not clarified the requirements.

At the same time, the procedural law does not provide for such grounds for leaving a claim without consideration.

The Judicial Board for Civil Cases of the Akmola Regional Court of August 14, 2024 canceled the court's ruling with the referral of the case for a new judicial review, which led to red tape during the consideration of the case.

The claim was filed in court on March 27, 2024 and considered on its merits only on October 31, 2024.

Thus, the case, which is not particularly complicated, did not find its final resolution for seven months.

Termination of cases in connection with the conclusion of amicable agreements

The idea of introducing conciliation procedures as one of the priorities for improving the judicial system has found its way into the Law on Mediation, which laid the foundation for the development of mediation as a conciliation procedure in various fields.

The judge takes measures to reconcile the parties, assists them in settling the dispute at all stages of the process, sending an invitation to the parties to participate in the conciliation procedure.

Current legislation allows for the possibility of concluding an agreement only between the parties in cases of the generalized category. The agreement must contain the terms agreed upon by the parties, indicating the time and procedure for its execution.

Judicial practice of considering cases

Judicial statistics indicate a slight increase in the number of cases in this category, which is facilitated by the development and accessibility of social networks, information, increased legal literacy of the population, a more active position of citizens, etc.

Basically, the parties to the cases of this category are individuals, and the subject of their dispute is information disseminated by the defendants, including through the media, which is defamatory and untrue.

The methods of protecting one's rights are mainly compensation for moral damage or compensation for losses caused by the dissemination of defamatory information and such special ways of protecting honor, dignity and business reputation as refuting defamatory information disseminated in the media, publishing one's response, and deleting relevant information from the Internet.

Article 18 of the Constitution stipulates that everyone has the right to privacy, personal and family secrets, and the protection of their honor and dignity.

In accordance with Part 1 of Article 8 of the CPC, everyone has the right, in accordance with the procedure established by this Code, to apply to the court for protection of violated or disputed rights, freedoms or legitimate interests.

By virtue of Article 141 of the Civil Code, personal non-property rights are subject to protection regardless of the guilt of the person who violated the right, unless otherwise provided by this Code. The person who has submitted a claim for protection must prove that his personal non-property right has been violated.

In accordance with paragraphs 1,2 of Article 143 of the Civil Code, a citizen has the right to demand in court a refutation of information discrediting his honor, dignity or business reputation. 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.

The decision to satisfy a claim for the protection of honor, dignity and business reputation is made by the court if a combination of three conditions is established: the information must be defamatory, be disseminated and not correspond to reality. When resolving cases in this category, the applicant must prove the fact of dissemination of information by the person against whom the claim is filed and the defamatory nature of this information. The responsibility to prove that the information disseminated by him is true lies with the defendant.

According to paragraph 1 of the Regulatory Decree on the Protection of Honor, Dignity and Business Reputation, defamatory information is such untrue information that detracts from the honor and dignity of a citizen in public opinion or the opinion of individual citizens in terms of compliance with laws and moral principles of society.

To satisfy a claim in such disputes, it is necessary to establish the simultaneous existence of the following circumstances::

- the fact of dissemination of information by the defendant;

- the defamatory nature of this information:

- inconsistency of their reality.

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.

The absence of at least one circumstance from the mandatory set of conditions for the satisfaction of the claim (the information must be defamatory, be disseminated and not correspond to reality) is the basis for refusing to satisfy the stated claims.

The main regulatory legal acts are:

The Constitution of the Republic of Kazakhstan dated August 30, 1995 (hereinafter referred to as the Constitution);

The Civil Code of the Republic of Kazakhstan (General Part), adopted by the Supreme Council of the Republic of Kazakhstan on December 27, 1994; the Civil Code of the Republic of Kazakhstan (Special Part), adopted by the Parliament of the Republic of Kazakhstan on July 1, 1999 (hereinafter - the Civil Code);

The Civil Procedure Code of the Republic of Kazakhstan dated November 3, 2015 (hereinafter - CPC);

The Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" dated December 25, 2017 (hereinafter referred to as the Tax Code);

Regulatory resolution of the Supreme Court of the Republic of Kazakhstan

No. 6 of December 18, 1992 "On certain issues of the Application by Courts of Legislation on the Protection of Honor, Dignity and Business Reputation of Individuals and Legal Entities" (hereinafter referred to as the Regulatory Decree on the Protection of Honor, Dignity and Business Reputation);

Regulatory resolution of the Supreme Court of the Republic of Kazakhstan

No. 7 dated November 27, 2015 "On the Application by Courts of Legislation on Compensation for Moral Damage" (hereinafter referred to as the Regulatory Resolution on Compensation for Moral Damage);

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 5 dated July 11, 2003 "On judicial decision in civil cases";

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 9 dated December 25, 2006 "On the Application by the Courts of the Republic of Kazakhstan of Legislation on court costs in civil cases" (hereinafter referred to as the Regulatory Resolution on Court Costs);

- The Law of the Republic of Kazakhstan dated July 23, 1999 "On Mass Media" (hereinafter – the Law on Mass Media);

- The Law of the Republic of Kazakhstan dated June 19, 2024 "On Mass Media";

- The Law of the Republic of Kazakhstan dated January 28, 2011 "On Mediation" (hereinafter – the Law on Mediation).

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