Protection of honor dignity and business reputation in the media
According to article 19 of the Universal Declaration of Human Rights, adopted by resolution No. 217 A (III) of the United Nations General Assembly on December 10, 1948, everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without hindrance and freedom to seek, receive and impart information and ideas by any means. and regardless of state borders.
By virtue of paragraph 1 of article 14 of the International Covenant on Civil and Political Rights dated December 16, 1966, ratified by the Law of the Republic of Kazakhstan dated November 28, 2005 and entered into force on April 24, 2006, all persons are equal before the courts and everyone has the right, when determining his rights and obligations in any civil process, to a fair and public hearing by a competent, independent and impartial court established by law.
According to Part 3 of Article 2 of the CPC, international treaties ratified by the Republic of Kazakhstan have priority over the Code of Civil Procedure and are applied directly, except in cases where it follows from an international treaty that its application requires the issuance of a law.
According to article 18 of the Constitution, everyone has the right to defend their honor and dignity. According to article 20 of the Constitution, everyone is guaranteed freedom of speech and creativity, as well as freedom of information in any way not prohibited by law.
According to article 4 of the Constitution, the generally recognized principles and norms of international law and international treaties of the Republic of Kazakhstan are an integral part of its legal system. According to Article 143 of the Civil Code, if information discrediting the honor, dignity and (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 paragraph 4 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.
Establishing a circle of respondents
According to paragraph 7 of the Normative Resolution of the Supreme Court No. 6 of 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", 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. In case of publication or other dissemination of 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.
According to part 1 of Article 50 of the CPC, replacement of the defendant is allowed before the start of consideration of the case on the merits in the court of first instance. The court, having established that the claim was brought against the wrong person who should be responsible for the claim, may, at the request of the plaintiff, without terminating the case, allow the replacement of the improper defendant with the proper one.
In accordance with subparagraph 7) of Article 165 of the CPC, in order to prepare a case for trial, taking into account the circumstances of the case, the judge resolves the issue of the composition of the persons involved in the case, including the entry of third parties into the case, and also decides on the replacement of an improper defendant.
By the decision of the Kostanay City Court of the Kostanay region dated July 13, 2016, the claim of Pronin Viktor Serafimovich against Kostanay News LLP, Bashkatova Tatyana Anatolyevna for the protection of honor, dignity and business reputation and compensation for moral damage was dismissed. This decision was upheld by the decision of the appellate instance dated September 28, 2016 and entered into force.
Pronin V.S. filed a lawsuit against Kostanay News LLP, Bashkatova T.A., Medvedeva N.M., Timchenko R.N., stating the following requirements: oblige Kostanay News LLP to publicly refute the article by journalist Bashkatova T.A. "Summer residents dig deep", published in the newspaper Kostanay News in the issue No. 32 dated March 25, 2016, to recover compensation from Bashkatova T.A. and Timchenko R.N. for moral damage caused. During the trial, the plaintiff waived the claims against Medvedeva N.M. and Timchenko R.N. By a court ruling dated July 13, 2016, the plaintiff's waiver of the claim in this part was accepted with the termination of proceedings against these defendants.
The plaintiff asked to refute the information contained in the article published in the newspaper "Kostanay News", the author of which is the correspondent of the newspaper Bashkatova T.A. The court found that the information contained in the article was provided to the correspondent of the newspaper Bashkatova T.A. by the former chairman of the audit commission Medvedeva N.M., which Medvedeva N.M. confirmed in court the meeting. In addition, the correspondent used the data contained in the provided act of the audit Commission on the results of the audit for 2012, regarding account 5010 (preferred shares) in the amount of 9159863 tenge. By the decision of the Kostanay District Court of December 2, 2014, the decision of the Board of the consumer cooperative "Horticultural Association "Avtomobilist" of June 1, 2013 on the storage of funds of the PKST "Avtomobilist" on the personal deposit of Chairman Pronin V.S. was declared illegal. After examining the circumstances of the dispute, the court concluded that the author of the publication, correspondent Bashkatova T.A., stated in the article the information provided to her by the members of the cooperative, N.M. Medvedeva as chairman of the audit commission, that is, she did not state the circumstances on her behalf.
The court took into account that the plaintiff, having filed claims against Medvedeva N.M. and Timchenko R.N. as the persons who reported the information disputed by the claim to correspondent Bashkatova T.A., waived the claims against them. Whereas according to the stated claim, according to the stated provision of the Regulatory Decree of the Supreme Court of the Republic of Kazakhstan, it is the duty of these persons to prove the validity of the information provided by them to the journalist.
The article does not contain specific information about the actions of the plaintiff as unlawful, conclusions regarding the plaintiff as violating the requirements of the law. The court recognized as noteworthy the arguments of the defendants that the article identifies the situation in the dacha cooperative as problematic, which must be dealt with.
Another example: By the decision of the court No. 2 of the city of Uralsk, West Kazakhstan region, dated October 19, 2016, Rakishevadaniyar Kharovich's claim to Journalistic Initiative LLP and editor-in-chief Yeslyamova Tamara Alipkalievna for recognition of information published in the Uralskaya Nedelya newspaper as untrue and defamatory of honor, dignity and business reputation and compensation for moral damage was partially satisfied. The court found the information mentioned in the article to be untrue, discrediting the honor, dignity and business reputation of Rakishev D.A. and he obliged the Journalistic Initiative LLP and the editor-in-chief, T.A. Eslyamova, to refute the discrediting information published in the Uralskaya Nedelya newspaper on May 25, 2016 in the article "What are people like Major Rakishev afraid of", namely: "... Major Rakishev began to earnestly beg my forgiveness on the street! "I'm sorry. Kargamanyzshymeni, tek menikargamanyz" (Don't curse me. Just don't curse me.)", "That's what they're afraid of! Alladankaytsyn!" within 30 days from the date of entry into force of the court's decision and collected from Journalistic Initiative LLP in favor of Rakishev D.A. 2,000,000 tenge and a refund of 20,000 tenge state duty and 1,500 tenge refund of 15,000 tenge from editor-in-chief Eslyamova T.A. The court rejected the rest of the claim.
The court found that in issue No. 20/770 of the Uralskaya Nedelya newspaper, owned by Journalistic Initiative LLP, an article "What are people like Major Rakishev afraid of" was published, which contains the disputed information.According to the opinion of a linguist expert, in the article "What are people like Major Rakishev afraid of", published in the newspaper Uralskaya Nedelya, there is information discrediting the honor, dignity and business reputation of Rakishev D.A.
The court found that in issue No. 20/770 of the Uralskaya Nedelya newspaper, owned by Journalistic Initiative LLP, an article "What are people like Major Rakishev afraid of" was published, which contains the disputed information.According to the opinion of a linguist expert, in the article "What are people like Major Rakishev afraid of", published in the newspaper Uralskaya Nedelya, there is information discrediting the honor, dignity and business reputation of Rakishev D.A.
The court has reliably established the fact that the defendants disseminated information discrediting the honor, dignity and business reputation of the plaintiff. The plaintiff sent a pre-trial claim to the defendants dated June 22, 2016, which was accepted by the defendants. The evidence presented by the plaintiff has not been refuted by the defendants.
When filing claims for the protection of honor, dignity and business reputation, plaintiffs are required to specify specific requirements in their statements of claim, including a mandatory claim for recognition of information discrediting the plaintiff as untrue.
According to paragraph 3 of Article 141 of the Civil Code, a person who has filed a claim for the protection of personal non-property rights must prove a violation of such rights. By virtue of paragraph 1 of Article 143 of the Civil Code, a citizen has the right to demand in court a refutation of information discrediting his honor, dignity and business reputation.
The obligation of the plaintiff to prove the fact of the violation, and the defendant to prove that the disseminated information is true, is also set out in paragraph 8 of the Normative Resolution of the Supreme Court No. 6 of 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."
It is necessary to find out whether the information that has been denied has been disseminated, whether it is true or not, whether it discredits the honor and dignity of a citizen, the business reputation of an organization, and when deciding to satisfy a claim, its operative part indicates that certain information infringing on the rights and legitimate interests of the plaintiff is inappropriate. the facts, and only then about the assignment to the defendant of the obligation to refute them.
Their actions are in accordance with the provisions of paragraph 12 of the Regulatory Decree of the Supreme Court No. 6 of 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."
Thus, by the decision of the district court No. 2 of the Almaly district of Almaty dated October 4, 2016, Alimseitovabakhtiyaranugmanovich's claim against Makarov Mikhail Mikhailovich, Astana Television LLP, for recognition of actions in distributing information that does not correspond to reality as illegal and compensation for moral damage was denied. By the decision of the Appellate Judicial Board for Civil cases of the Almaty City Court, the decision of the court of first instance remained unchanged.
One of the grounds for refusing to satisfy the claim and leaving the decision unchanged was also the absence of a claim to recognize certain specific information (words and expressions) as untrue, discrediting the honor and dignity of the plaintiff; the court has no right to consider the case in violation of the requirements of part 2 of Article 225 of the CPC, which regulates the prohibition on going beyond the limits of the claim requirements, except for the cases specified in this standard.
The court found that in the statement of claim dated July 25, 2016 Alimseitov B.N. asked the court: 1) to recognize the actions of Astana City Television LLP and Makarov M.M. in distributing information that does not correspond to reality as illegal; 2) to collect 2000000 tenge jointly with Astana City Television LLP and Makarov M.M. in repayment of moral damage.
Thus, the plaintiff filed a statement of claim for recognizing the actions of Astana Television LLP and Makarov M.M. in distributing information that does not correspond to reality as illegal; collecting 2000000 tenge jointly from them to pay off moral damage, rather than recognizing the disseminated information as untrue, discrediting honor, dignity and business reputation.
The court took into account that in the plaintiff's claims there is no indication of specific information (words and expressions) that, in his opinion, do not correspond to reality, spread in relation to the plaintiff, discrediting his honor, dignity and business reputation, the presentation and indication of which was mandatory.
Dissemination of information on social networks
Currently, more and more citizens receive information from the Internet, and therefore social networks are gaining the most popularity in distributing certain information. In this regard, it is necessary to keep in mind the following. An Internet resource is a set of integrated software, hardware, and hardware tools, as well as information intended for publication on the Internet and displayed in certain text, graphic, or audio forms.
The Internet resource has a domain name (UniformResourceLocator), which is a unique email address that allows you to identify the Internet resource and access the Internet resource. Messenger is the English name of a class of programs designed to exchange messages over the Internet in real time (instant messaging service). Text messages, audio signals, pictures, and videos can be transmitted.
In accordance with the norms of Part 2 of Article 65 of the CPC, audio and video recordings, including those obtained by surveillance and/or recording devices, photo and/or film footage, and other materials on electronic, digital and other tangible media, may be recognized as acceptable evidence.
It should be borne in mind that the records and materials specified in the CPC may be recognized by the court as admissible evidence if the law does not explicitly prohibit their use. Moreover, this list of types of acceptable evidence is open and not exhaustive.
By virtue of subparagraph 4) of Article 1 of the Law of the Republic of Kazakhstan "On Mass Media", a mass media is a periodical, television, radio channel, documentary film, audiovisual recording and other form of periodic or continuous public dissemination of mass information, including Internet resources.
The information posted on the Internet resource is information posted in the mass media.
Thus, the information posted on the Internet resource is information posted in the mass media. Consequently, all the restrictions and rules provided for the placement of information in the media apply to the placement of information on the Internet resource.
When preparing a case, taking into account the norms of civil law and the specifics of considering the category of dispute, courts should keep in mind that in order to more accurately determine the nature of the dispute, it is necessary to clarify whether the defendant has objections to the claim, as well as to clarify other issues relevant to the proper resolution of the case, the parties should be called to a conversation, interview them on the merits of the dispute, explain to the plaintiff the right to make the necessary additional claims, find out from the plaintiff the presence of additional evidence, and from the defendant – the presence of objections to the claim and evidence refuting the grounds of the claim and the arguments of the plaintiff; to explain to the parties the right to file a petition for assistance in obtaining evidence; to resolve the issue of co-defendants and third parties entering the case without independent claims, as well as to resolve the issue of replacing an improper defendant.
In the absence of a claim for recognition of certain information as untrue and discrediting the honor and dignity of the plaintiff, the court also has no right to consider the case in violation of the requirements of part 2 of Article 225 of the CPC, which regulates the prohibition on going beyond the claims, except in the cases specified in this provision.
There are cases when, in the absence of such a requirement as the recognition of information discrediting honor and dignity as untrue, the presentation of which was mandatory, the court resolves the merits of the case and the claim for compensation for moral damage.
However, by virtue of part 2 of Article 15 of the CPC, in the course of civil proceedings, the parties choose their position, ways and means of defending it independently and independently of the court and other persons involved in the case.
Filing a claim for recognition of information as untrue
In connection with the above, it should be noted that when filing a claim for recognition of information as untrue, but in the absence of a requirement for the obligation to refute certain information discrediting the honor, dignity and business reputation of the plaintiff, the court has the right to accept such a statement of claim and resolve the dispute on its merits. If the court finds that the information that the plaintiff requests to be recognized as untrue is disseminated by the defendant and discredits the honor, dignity and business reputation of the plaintiff, then such a claim is subject to satisfaction even in the absence of a requirement to refute the information, since each subject of legal relations independently manages his rights at his discretion, no one can impose on the plaintiff to choose that or a different position and method of defending. In this case, the plaintiff considers it sufficient to fully restore his rights and chose this method of protection, which is the right of the party. Moreover, the court resolves the case within the limits of the plaintiff's claims.
At the same time, in the absence of a claim for recognition of the information as untrue, the plaintiff filed only a claim for the obligation to refute the information (including compensation for moral damage), it is precisely such a claim that cannot be satisfied without a requirement for recognition of the information as untrue, since in order to satisfy the claim it is necessary to establish: 1) the fact of dissemination of information and 2) that the information discredits the honor, dignity and business reputation of the person who applied to the court for protection of his legal rights. The requirement of the obligation to refute information, as well as compensation for moral damage, are additional, arising from the basic requirement to recognize information as untrue.
That is, for the restoration of rights, a prerequisite is the presentation of a requirement to recognize the information as untrue.
In this regard, at the stage of preparation for the trial, it is necessary to carefully find out from the plaintiff which specific information discrediting honor and dignity should be recognized as invalid and in what way they should be refuted.
Judicial acts issued on claims for the protection of honor, dignity and business reputation are drawn up by judges in accordance with the requirements of the current legislation. However, there are cases of registration of decisions of the courts of first instance, which do not fully comply with the requirements of the legislation. Thus, in the descriptive part of the court's decision, the judges set out in detail the testimony of witnesses whom the court questioned during the trial, which does not comply with paragraph 10 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan No. 5 dated July 11, 2003 "On judicial decision".
Judicial acts issued on claims for the protection of honor, dignity and business reputation are drawn up by judges in accordance with the requirements of the current legislation. However, there are cases of registration of decisions of the courts of first instance, which do not fully comply with the requirements of the legislation. Thus, in the descriptive part of the court's decision, the judges set out in detail the testimony of witnesses whom the court questioned during the trial, which does not comply with paragraph 10 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan No. 5 dated July 11, 2003 "On judicial decision".
The Court of Appeal for cases discrediting honor, dignity and business reputation
The higher instance lawfully clarifies the circumstances of the dispute and amends or cancels the decisions of the courts of first instance in the event that 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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