The person who has submitted a claim for protection must prove that his personal non-property right has been violated.
In the case of M. V. T.'s lawsuit, on October 10, 2022, an article "A scandal broke out around the family of the ex-akim" was published on the social network "Instagram" on the page of the publication "My City".
The author of the article, T., tells the story of the relationship that developed after the death of her former husband, M., with his father, M., regarding the succession of M.'s daughter.
On February 20, 2023, at the request of M., pre-trial proceedings were registered on the fact of spreading deliberately false information.
On November 6, 2023, by the decision of the senior investigator, the criminal case was terminated for lack of evidence of a crime.
The plaintiff asked to recognize the information disseminated in the said article as discrediting his honor and dignity, to oblige him to make a public apology by publishing a rebuttal in the same publication, and to compensate moral damage in the amount of 25,000,000 tenge.
Thus, M. disputed the inconsistency of reality and the defamatory nature of the following fragment of the article "A scandal broke out in the family of ex-akim M.": "...But almost a year has passed, however, my daughter has not received another penny of the specified property. On May 13, a general meeting of LLP participants was illegally held in Notary K.'s office, at which D. was illegitimately elected director of LLP. This director unreasonably refuses to participate in LLP M. in reviewing the financial documents of the company, forcing them to sign a non-disclosure agreement on commercial information, referring to their main counterparty JSC. But in this case, we will not be able to contact lawyers for help and show them the company's documents.."
«.....It is simply impossible to cooperate with a former father, so my daughter is ready to sell her share. But they don't even allow you to evaluate the company in order to know its exact cost. We only know the approximate price from the words of A. They probably believe that it all belongs only to them. It is a pity that such a discord occurred because of selfish goals. After all, my daughter used to communicate with her grandparents, they helped her, but now they have abandoned her to the mercy of fate....".".M.'s former daughter-in-law accused her father-in-law of refusing to give her share of the inheritance to her granddaughter after her son's death, the portal reports.
Partially satisfying the claim, the local courts argued that the defendant did not deny the circumstances of her appeal to the editorial office of the publication on these issues in relation to the plaintiff M. and giving an interview to the correspondent.
It follows from the conclusion of a linguist that T.'s statements set out in the publication are defamatory of the honor, dignity, and business reputation of the plaintiff.
However, it is impossible to agree with these conclusions of the courts. Defamatory information is considered to be information that:
- they reduce the public assessment of a person, harm his honor and dignity;
- harm the business reputation;
- they are obviously false.
In accordance with the requirements of the law, the burden of proving falsity is placed on the defendant (that is, on the person who disseminated the information).
It follows from paragraph 8 of the Regulatory Decree on the Protection of Honor, Dignity and Business Reputation that, 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.
In this case, some of the statements are subjective opinions and value judgments, which do not fall under the protection of honor and dignity.
For example, the phrase "A scandal broke out in the family" is a value judgment, therefore it is not subject to verification for truth, as it does not contain statements about facts.
Other allegations relate to specific facts (for example, refusal to issue documents, election of the director, refusal to review documents), which are confirmed by court decisions.
The court decisions that have entered into force have satisfied M.'s claims against LLP and third parties, including M., to invalidate the decision of the general meeting of participants of the said LLP dated May 13, 2022, and to impose the obligation to provide documents.
The remaining statements correspond to reality and are based on the author's opinion, so they cannot be considered defamatory.
The statement that "...But almost a year has passed, however, my daughter has not received another penny of the specified property ..." there is indeed a case, therefore, there is no reason to recognize them as discrediting honor and dignity.
However, the courts, in granting the claim, pointed out that T.'s appeal to the media had no basis in fact and was dictated not by the intention to fulfill his civic duty or protect his rights and legally protected interests, but solely by the intention to harm another person, the plaintiff in the case, that is, there was an abuse of law. Whereas this ground is not provided for by the law to satisfy the claim in this case.
In this regard, the Supreme Court annulled judicial acts of local courts with a new decision to dismiss the claim.
In another case, Ye. motivated his appeal to the court by the fact that on December 8, 2022, he was appointed to the post of head of the locomotive operation department. From December 9, 2022 to January 20, 2023, the defendants distributed five collective video messages on the Internet with baseless demands for the plaintiff's dismissal from his post. The appeals contain information that does not correspond to reality, detracting from the honor, dignity and business reputation of the plaintiff in terms of compliance with the laws and moral principles of society, which caused moral harm.
By the decision of the Munailinsky District Court of the Mangystau region of May 4, 2023, left unchanged by the court of appeal on July 5, 2023, the claim was partially satisfied. The court decided to recognize as untrue and discrediting the honor, dignity and business reputation of E. the information distributed in the video messages dated December 9, 2022 by B. and December 15, 2022 by B., ordered the latter to refute the information within 30 calendar days from the date of entry into force of the decision.
The claim for compensation of moral damage has been satisfied.
The local courts, partially satisfying the claim, justified the fact that, according to the results of the audit, the facts of violations set out in the workers' appeals were not confirmed.
The courts also referred to the expert opinion, according to which the video messages contain negative information discrediting the honor, dignity and business reputation of the plaintiff.
However, these conclusions of the courts are not based on the circumstances.
affairs.
From the act of the working group established by the order of the Acting Director General
As the director of the LLP, it follows that there were facts of illegal dismissal of employees M. and others (4 people in total).
On September 14, 2022, a judicial act that entered into force reinstated employee B.
The Working Group also confirmed the arguments of individual employees about the failure of E. to hold workshops, meetings with the team, and the extraordinary referral of her son to advanced training courses.
These facts confirmed the accuracy of the information provided in the appeals.
Also, in substantiation of their arguments, the defendants referred to the court decision of January 25, 2023, by which the LLP branch was held liable under part 6 of Article 559 of the Administrative Code for violating the requirements of legislation on railway transport, including for the commissioning of defective rolling stock.
The above circumstances indicate that, based on objective, relevant data, the defendants expressed reasonable criticism of the plaintiff's previous activities.
In this regard, the judicial acts in the satisfied part were canceled with the issuance of a new decision to dismiss the claim.
Jurisdiction
The jurisdiction of disputes in this category is determined according to the general rules established by Article 29 of the CPC - claims are filed in court at the location of the defendant.
According to Part 12 of Article 30 of the CPC, claims against several defendants may be filed at the location of one of the defendants at the plaintiff's choice.
Cases on the protection of honor, dignity and business reputation are considered by the courts of general jurisdiction. Lawsuits for the protection of the honor, dignity and business reputation of legal entities also fall under the jurisdiction of district (city) courts. If the parties to such cases are a legal entity or an individual entrepreneur, then the claim is subject to consideration by the economic court.
Cases related to the protection of the rights and interests of minors belong to the exclusive jurisdiction and are subject to consideration by specialized inter-district juvenile courts.
An analysis of the cases showed that the courts of the republic comply with the rules of jurisdiction.
At the same time, there are some violations regarding the jurisdiction of cases.
Thus, by the ruling of the Mugalzharsky District Court of the Aktobe region dated April 30, 2024, a mediation agreement was approved in the case of the claim of S. to S. for making public apologies on social networks.
It follows from the case file that the plaintiff Sh. He is the father of minor "A", whose photo and video materials containing false, unreliable information insulting honor and dignity were published by the defendant.
Sh. The claim is filed in the interests of a minor child, i.e. the plaintiff's son, born in 2011.
By virtue of Part 3 of Article 27 of the CPC, cases related to the protection of the rights and interests of minors belong to the exclusive jurisdiction and are subject to consideration by specialized inter-district juvenile courts.
Since the lawsuit affects the interests of minor children (including the requirement to ban the dissemination of information and the removal of photos), the case requires a special procedural approach and consideration in a specialized court (entered into force on September 1, 2023).
The court, at the stage of decision-making or during the preparation or consideration of the case, should, in accordance with subparagraph 2) of part 1 of Article 152 of the CPC, to return the claim or send it to the jurisdiction, which was not done by the court.
The Law of the Republic of Kazakhstan No. 84-VII SAM dated December 20, 2021 amended Article 32 of the CPC, providing for the possibility of the parties to agree on extraterritorial (contractual) jurisdiction.
This rule is actively applied by the courts. In total, 48 cases were referred under extraterritorial jurisdiction during the analyzed period.
Thus, according to the agreement of the parties on extraterritorial jurisdiction, the case of B. K. P. was sent from the court of the North Kazakhstan region to the Karakiyansky District Court of the Mangystau region on recognition of information that does not correspond to reality, discrediting honor and dignity and compensation for moral damage.
Similarly, the case on K. K. O.'s claim for the protection of honor and dignity and compensation for moral damage was sent from the interdistrict civil court of Astana with extraterritorial jurisdiction to Court No. 2 of the Alikhan Bokeikhan district of Karaganda city.
The above-mentioned article provides for the right of the parties to change the territorial jurisdiction on the basis of an agreement between them. Such an agreement is binding on both the parties and the court and must be expressed 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 in 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. A 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 mass media, it must be they were refuted for free 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.
In order 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 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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