The practice of collecting the amount of moral damage

A study of judicial practice materials has shown that the most common way to protect personal non-property rights of citizens is to demand compensation for moral damage. Based on Article 951 of the Civil Code, in the case of harm caused by the dissemination of information discrediting honor, dignity and business reputation, the presence of moral harm is assumed.

One of the topical issues that arise in judicial practice in cases of the analyzed category is the issue of assessing moral damage caused to a citizen by spreading defamatory information in terms of determining the amount of his monetary compensation.

Civil legislation, providing for compensation for moral damage as a way of protecting civil rights, establishes general criteria for determining the amount of such compensation (952 CC), which the court applies taking into account the factual circumstances of a particular case.

Judicial practice shows that plaintiffs in cases of protection of honor, dignity and business reputation, demanding compensation for moral damage caused to them, did not justify, as a rule, the claimed amount, but limited themselves only to referring to the deterioration of their condition.

health, emotional worries and worries.

In accordance with Article 952 of the Civil Code, the amount of compensation is determined by the court, while the court is not bound by the amount of compensation that the plaintiff insists on, but proceeds from the requirements of reasonableness, fairness and proportionality of compensation to the consequences of the violation, that is, from fundamental principles that presuppose a balance of interests, compliance of the behavior of participants in legal relations with accepted norms of behavior in society.

When determining the amount of monetary compensation for moral damage to be recovered from the defendant, the courts usually took into account the nature and content of the disputed publication, the method and duration of dissemination of false information, the degree of their influence on the formation of a negative public opinion about the person who was harmed, the extent to which his dignity, social status or business reputation were affected, other negative consequences for him, as well as, in some cases, his individual characteristics (for example, age and health status).

The reason for the reduction in the amount of compensation for moral damage compared to the amounts stated in the claims was, as a rule, the disagreement of the court, taking into account the principles of reasonableness, fairness and proportionality to the consequences of the violation with the claimant's subjective assessment of the degree of harm caused to him.

According to paragraph 3 of the Normative Resolution on Compensation for Moral Damage, personal non-property benefits and rights, the violation, deprivation or diminution of which may result in moral harm to the victim, should be understood as benefits or rights granted by law belonging to a citizen from birth, which are inextricably linked to his personality. The benefits that belong to a person from birth include life, health, honor, dignity, freedom, and inviolability of the individual, and the rights of a citizen granted by law include the right to inviolability of home or property.; personal and family secrets, the secrecy of telephone, telegraphic messages and correspondence; the use of a name; an image; authorship and other personal non-property rights provided for by legislation on copyright and related rights; freedom of movement and choice of place of residence; obtaining reliable information, as well as other rights provided for by law.

When determining the amount of moral damage, both the subjective assessment of the victim or, in the event of his death as a result of an offense committed against him by close relatives, the spouse, and the severity of the moral damage caused, as well as objective data indicating the degree of moral and physical suffering of the victim or, in the event of the death of close relatives, the spouse, are taken into account: the importance of the good that was the object of the encroachment (life, health, honor, dignity, freedom, inviolability of the home, etc.); the severity of the consequences of the offense (murder of close relatives, infliction of bodily injuries resulting in disability, imprisonment, deprivation of work or housing, etc.); the nature and scope of dissemination of false shameful information; the victim's living conditions (official, family, domestic, material, health status, age, etc.), other circumstances worthy of attention (paragraph 2 of Article 952 of the Civil Code).

The specificity of honor and dignity protection cases in the aspect of compensation for moral damage lies in the fact that the defamatory nature of the information disseminated is an obligatory element of it.

The plaintiffs, in their opinion, assess the moral damage caused to their honor and dignity, but the final amount of compensation is determined by the court, taking into account the nature and degree of moral suffering.

According to subparagraph 3) of paragraph 3 of Article 951 of the Civil Code, moral damage is compensated regardless of the fault of the causer if the damage is caused by the dissemination of information discrediting honor, dignity and business reputation.

The generalization showed that the courts generally reasonably apply these rules of law and decide on compensation for moral damage in monetary terms only if the circumstances are established and there is evidence that the defendant has disseminated information that is not true and the method of refuting this information is determined.

Thus, in the absence of evidence regarding a claim for the protection of honor, dignity and business reputation, the courts correctly refuse to satisfy a claim for compensation for moral damage.

It is legitimate for the court to instruct in the operative part, first, to recognize specific widespread information discrediting honor, dignity and business reputation as untrue, to oblige the defendant to refute such information, and then to compensate for moral damage.

By virtue of subparagraph 3) of paragraph 3 of Article 951 of the Civil Code and paragraph 13 of the Regulatory Decree on the Protection of Honor, Dignity and Business Reputation, moral damage is compensated if the damage is caused by the dissemination of information discrediting honor, dignity and business reputation; therefore, the claim for compensation for moral damage is satisfied only if the claim for recognition is satisfied. one or another information disseminated by the defendant through the newspaper, discrediting the honor and dignity of the plaintiff, inconsistent with reality.

That is, the issue of satisfaction of a claim in terms of compensation for moral damage depends on whether the claim for the protection of honor and dignity (the main requirement) is satisfied. A claim for compensation for moral damage is a derivative of a claim for the protection of honor, dignity and business reputation.

In order for the court to recover compensation, the plaintiff must prove:

- the fact of dissemination of information – that it was the defendant who disseminated the disputed information (in the media, on the Internet, verbally);

- the unreliability of this information is that it does not correspond to reality.

The courts determine the size based on:

- the nature and content of defamatory information;

- the scale of its distribution (private message, newspaper, Internet, social networks);

- the identity of the plaintiff (an ordinary citizen or a public figure);

- the severity of the consequences for reputation and mental and emotional state.

In practice:

- courts rarely satisfy lawsuits in full;

- compensation amounts are usually moderate (from several hundred thousand to several million tenge).

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 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, 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.

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 the payment was not made in full or according to inappropriate details (beneficiary, code, KBK, 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. to 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.

The Judicial Board for Civil Cases of the North Kazakhstan Regional Court legitimately considered that the refund was unjustified, since the plaintiff had not stated any demands to the media, and there were no demands to publish 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 been consolidated in 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.

The 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 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 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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