Protection of honor, dignity and business reputation of citizens and legal entities

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.

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.

Plaintiffs (citizens and legal entities), when filing claims for the protection of honor, dignity and business reputation, 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."

The courts correctly 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 the claim, in its operative part they indicate the recognition of certain information that infringes on the rights and legitimate interests of the plaintiff, they are untrue, and only then about the obligation on the defendant to refute them. These actions of the courts are fully consistent 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."

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.

It should be borne in mind that in the absence of a claim for recognition of certain information as untrue and discrediting the honor and dignity of the plaintiff, the court has no right to consider the case also 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.

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 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 one or another position and method of defense. 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 a person who has 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.

In other words, 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.

It should be noted that in accordance with the provisions of Article 47 of the CPC, the plaintiff and the defendant are the parties to the civil procedure. Plaintiffs are citizens and legal entities who have filed a claim in defense of their violated or disputed rights and freedoms, legitimate interests, or in whose defense a claim has been filed by other persons in accordance with the procedure provided for by the Code of Civil Procedure.

The defendants are citizens and legal entities against whom the claim is filed.

By the decision of the court No. 2 of the city of Uralkaz, Western Kazakhstan region, dated August 4, 2016, the claim of Elite-Press Region LLP against Yuri Pavlovich Predybaylo was dismissed for recognizing the information as untrue and discrediting business reputation, and the obligation to refute this information.

According to the decision, in 2015, Y.P. Predybailo, in his appeal addressed to the head of state, the Prosecutor General's Office of the Republic of Kazakhstan, the Supreme Court of the Republic of Kazakhstan, the first anti-corruption independent media center of the Republic of Kazakhstan, the head of the DBEKP of the Republic of Kazakhstan, the editorial office of the newspaper Kazakhstanskaya Pravda and the administration of Russian President Vladimir Putin, disseminated information discrediting his business reputation. newspapers.

After examining the circumstances of the case, the court concluded that there was no fact of dissemination of information that was untrue and discredited business reputation, but there was a constitutional right to appeal to various authorities in order to protect one's rights and legally protected interests.

The court also found that the claim was filed on behalf of "Elite Region" LLP and according to the information of the registering authority, the head and founder of this partnership is Davletova Zh.N. as an individual. The lawsuit is motivated by the tarnished business reputation of the RegionEurAsia newspaper, owned by Elite-Press Region LLP.But based on the literal interpretation of the information that the plaintiff requests to be recognized as untrue and discrediting the business reputation of the newspaper, it follows that they (the disputed information) directly indicate the identity of Shambulov as an individual and it is he who is accused of inciting discord and writing articles, and not the newspaper RegionEurAsia and Elite-Press Region LLP.".In court, this circumstance was confirmed by the defendant, referring to, what Citizen Shambulov personally meant in his address. In this connection, the court concluded that in this case the claim was brought by an improper person, since the information in question is personally about citizen B.K. Shambulov.

When resolving disputes on the protection of honor, dignity and business reputation, it is necessary to correctly distinguish between the rights of citizens to protect honor and dignity, as well as business reputation, on the one hand, and on the other, the rights and freedoms guaranteed by the Constitution – freedom of speech, the right to freely seek, receive and research information, and the right to appeal to government agencies.

For example, a citizen's appeal to law enforcement agencies with a statement that provides information about criminal acts in his opinion, but this information has not been confirmed. The appeal itself is not a ground for bringing a person to civil liability, since there has been an exercise of the constitutional right to appeal to bodies that are legally required to verify the information received. The claims can be satisfied if it is established that the appeal had no grounds and was dictated not by a civil duty, but by the intention to harm another person, that is, there was an abuse of the right.

In addition, according to paragraph 16 of the 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", to draw the attention of the courts that in cases of private prosecution, the acquittal, as well as the termination of the criminal case on the grounds provided for in subparagraph 5) of part 1 of Article 35 of the CPC in itself , it cannot serve as a basis for imposing on a private prosecutor the obligation to compensate an acquitted person for moral damage, because in this case, there is an exercise of the constitutional right to appeal to the authorities whose competence includes the consideration of these complaints.The claim of an acquitted person in a private prosecution case to recover compensation for moral damage can be satisfied only if the private complaint had no legal basis and the appeal to the court was aimed solely at harming another person (abuse of law).

In this case, the plaintiff must prove the fact of abuse of law by the prosecutor.

Thus, only if the plaintiff proves that the defendant has abused his civil right, only in these cases can the claim be recognized as justified.

At the same time, according to part 1 of Article 34 of the Constitution, everyone is obliged to comply with the Constitution and legislation of the Republic of Kazakhstan, to respect the rights, freedoms, honor and dignity of others.

In disputes on the protection of honor, dignity and business reputation, he showed that in judicial practice there are disputes when official appeals of citizens to authorized central state bodies contain negative information about the activities of an official, which, according to the expert's conclusion, are discrediting honor, dignity and business reputation in case of inconsistency with reality.

It seems that the defendant's actions in contacting various state bodies, including bodies whose competence does not include the consideration of such a statement, on a systematic basis and the content of defamatory, untrue information in the statements can also be regarded as an abuse of the civil right of a person applying to various state authorities. That is, a combination of two conditions is necessary: a systematic appeal to government agencies and the availability of defamatory information that does not correspond to reality. It is also possible to take into account that earlier, upon the same similar request from the applicant (respondent) against the same person (plaintiff), the state body conducted an audit or provided a written response.

Lawsuits filed by civil servants (law enforcement officers) against the authors of appeals addressed to authorized state bodies

By the decision of the Shcherbaktinsky District Court of the Pavlodar region dated May 31, 2016, the claim of Mukhatovazhandosaamangeldievich against Mikhail Grigorievich Barsukovsky for the protection of honor, dignity and business reputation was dismissed.

The court of first instance motivated its decision by the fact that the defendant did not provide the court with indisputable, reliable and acceptable evidence that the information contained in the poster, which, in the plaintiff's opinion, was defamatory of his honor, dignity and business reputation.

Thus, the court found that on March 4, 2016, at 2:30 p.m., the defendant, who lives in the village of Sharbaktysherbaktinsky district of Pavlodar region, with his son A.M. Barsukovsky, grandson V.A. Barsukovsky and other residents of the same village, was near the building of the Shcherbaktinsky district branch of the NurOtan party. At 2.30 p.m., these individuals entered the building, where employees of the NurOtan party branch led them to the office of the public reception of citizens.

After that, the first deputy chairman of the Shcherbakty branch of the NurOtan party and the chairman of the district headquarters of the election campaign approached, who held a reception for these individuals. At the same time, on the table where the reception of citizens was held, there was a poster sheet with the image of the plaintiff in color format, under which the printed text was set out as follows: "Dear President! We ask for your protection from the law enforcement system of the district, which guards corruption in the district, our families are persecuted at the level of 1937. Criminal cases are being fabricated, arrested, tried under cover of night, the law has been turned into private property, we are exposing corrupt thieves – we are being strangled in a holding cell that exists to this day, violence is being used. Kazakhstan signed the convention at the UN and ratified it in 2008 on the non–use of torture against citizens, but the torture continues by the security forces of the region. Stop it – bring it to criminal responsibility – dismiss it from the civil service."The plaintiff became aware of the existence of this poster after on March 4, 2016, he was invited to the head of the State Institution "Akimashcherbakty district Office", where he was shown.

The court established the existence of a poster, which the plaintiff calls "leaflets" with information concerning the plaintiff and came to the conclusion that the information had indeed been disseminated.At the same time, the court took into account that the plaintiff had not provided sufficient and reliable evidence confirming the distribution of leaflets by the defendant.

The appellate body for the Protection of honor, dignity and business reputation to citizens and legal entities

The appellate 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.

In accordance with the norms of Part 2 of Article 434 of the CPC, decisions and rulings of the appellate instance in cases of disputes on the protection of honor, dignity and business reputation may be reviewed by the cassation instance of the Supreme Court of the Republic of Kazakhstan.

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