Protection of the commercial reputation of a legal entity
Although there is no definition of the concept of “business reputation” in the current legislation of the Russian Federation, mechanisms are provided for its protection.
In accordance with paragraph 1 of article 152 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), “a The citizen has the right to demand from the court a refutation of information damaging to his honor, dignity or commercial reputation if the person who disseminated this information does not prove that it is true. “.
In accordance with paragraph 11 of article 152 of the Civil Code of RF, “this article governs the protection of the commercial reputation of citizens, with the exception of the provisions relating to compensation for moral damage, which apply accordingly to the protection of the commercial reputation of a legal person.“
The means to protect the commercial reputation of a legal person are contained in art. 152 of the Civil Code of the Russian Federation:
- Refutation of information discrediting the honor, dignity or commercial reputation of a person;
- Publication of the person’s response in these media;
- Removal of relevant information.
As follows from paragraph 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of February 24, 2005 No. 3 “On judicial practice in cases of protection of honor and dignity of citizens, as well as business reputation of citizens and legal entities” (hereinafter – Resolution No. 3), “circumstances which, according to Article 152 of the Civil Code of the Russian Federation, are significant for the case, are the fact that the defendant disseminated information about the plaintiff, the inconsistency of their reality and the defamatory nature of this information.If at least one of these circumstances is lacking, the court cannot satisfy the request.
Dissemination of information detrimental to the honor and dignity of citizens or to the commercial reputation of citizens and legal persons means the publication of this information in the press, broadcasting on radio and television, demonstration in news programs and other media, dissemination on the Internet, as well as the use of other means of telecommunication, in-service presentation of characteristics, public speeches, statements to public officials or communication in one form or another, including oral, to at least one person. The dissemination of such information to the person to whom it relates cannot be assimilated to its dissemination if the person who provided it has taken sufficient confidentiality measures so that it is not known to third parties.
Inappropriate information that does not correspond to reality are statements about facts or events that did not actually occur at the time the disputed information relates. Information contained in court decisions and convictions, decisions of preliminary investigative bodies and other procedural acts or other official documents, for the appeal and challenge of which a different judicial procedure established by law is provided, cannot be considered false (for example, cannot be refuted in the manner of Article 152 of the Civil Code of the Russian Federation, the information contained in the dismissal order, since such an order cannot be challenged only in the manner prescribed by the Labor Code of the Russian Federation).
Defamatory, in particular, is information containing allegations of violation by a citizen or a legal person of the law in force, committing a dishonest act, inappropriate and unethical behavior in personal, public or political life, the dishonesty in the execution of production and commercial and entrepreneurial activities, violation of business ethics or customs turnover that damages the honor and dignity of a citizen or the business reputation of a citizen or a legal person.“.
According to paragraph 5, “Practical examination of the examination of cases relating to the protection of honor, dignity and reputation of enterprises”, approved by the Presidium of the Supreme Court of the Russian Federation on 16/ 03/2016 (hereinafter – Armed Forces Review of 03/16/2016), “To decide whether the disputed information is defamatory for the claimant, as well as to assess their perception, taking into account that the information disseminated may be brought to the attention of third parties in various ways (figuratively, allegorically, offensively, etc. ) , the courts, if necessary, must appoint an examination (for example, linguistic) or involve a specialist (for example, a psychologist) for consultation . ”.
Similar explanations are given in paragraph 6 of the review of the Supreme Court of the Russian Federation of March 16, 2016. Exceptionally, the Supreme Court of the Russian Federation indicated value judgments, opinions, convictions of offensive nature. Also, the Supreme Court of the Russian Federation, in its review dated March 16, 2016, noted in paragraph 12 that “Damage to the commercial reputation of the organization can be caused by the dissemination of defamatory information both about the organization itself and about the people who are part of its governing bodies, as well as about the employees of this organization . “.
According to paragraph 9 of Resolution No. 3 and according to paragraph 1 of article 152 of the Civil Code of the Russian Federation, the defendant is obliged to prove the validity of the disseminated information. The claimant is required to prove the dissemination of the information by the person against whom the complaint is brought and the defamatory nature of this information.
Despite art. 152 of the RF Civil Code excludes the possibility of compensation for moral damage to a legal person in the event of deterioration of its commercial reputation; this does not prevent him from filing claims for compensation for damage to his reputation (Definition of the Constitutional Court of the Russian Federation of December 4, 2003, No. 508-О).
At the same time, harm to the reputation of the enterprise should be understood as any decrease in it, which manifests itself, for example, in the presence of losses of a legal entity due to the dissemination of information defamatory material and other adverse consequences in the form of loss of competitiveness, inability to plan activities, etc.
According to paragraph 21, “Review of Judicial Practice No. 1 of the Supreme Court of the Russian Federation (2017)” (approved by the Presidium of the Supreme Court of the Russian Federation on February 16, 2017), the mere fact dissemination of information by the defendant discrediting the commercial reputation of the plaintiff is not sufficient to conclude that he caused damage to the commercial reputation, and for the payment of monetary compensation. In this case, the applicant must prove the following:
– the presence of an established reputation in a particular area of business relations (industry, commerce, services, education, etc.);
– the occurrence of adverse consequences for him as a result of the dissemination of defamatory information;
– the fact of losing or diminishing confidence in its reputation.
Next, we will look at specific examples from court practice on the recovery of damage to the reputation of defendants.
The Arbitral Tribunal of the Lipetsk region in case No. A36-2639/2018 issued a decision dated 26.10.2018, which charged the defendant with damage to the reputation of 500,000 rubles in favor of the plaintiff . The plaintiff in this case assessed damage to reputation at 3,387,000 rubles. The plaintiff reported that he calculated the damage as follows – 1% of retained earnings for 2017 (338,742,000 rubles).
According to the plaintiff, the damage to the company’s reputation resulted in a decrease in sales of manufactured products, the inability to plan activities and a loss of confidence from counterparties, in confirmation of which they received letters counterparties about the impossibility of continuing the cooperation or considering the possibility of paying for the supply of the tubular products upon shipment, or the impossibility of working on a 100% prepayment basis, etc. In addition, the plaintiff submitted to the file an opinion on the possibility of concluding contracts on the dispatch of goods or on deferred payment, from which it follows that this mode of payment is unacceptable for the plaintiff since he does not manufacture only products “to order” and 62% of the raw materials and materials, necessary for the manufacture of the products, acquires itself on a prepayment basis.
At the same time, the court disagreed with the claimant’s said calculation and considered the amount of compensation for damage to business reputation claimed by the claimant to be disproportionate to the harm caused. The decision of the arbitration court of the Lipetsk region in case No. A36-2639 / 2018 of 26.10.2018 was upheld in all higher instances.
The decision of the Arbitral Court of Rostov region in case number A53-357 / 20 of 07.17.2020 from the defendant to the plaintiff was charged with immaterial damage (reputation) in the amount of 1,000,000 rubles. The plaintiff determined the amount of damage to the reputation of 1,000,000.00 rubles based on the analysis of the turnover of the plaintiff’s pharmaceutical organizations in the period from 01.01.2019 to 31.11.2019 . According to the analysis of the turnover of the applicant’s pharmaceutical organizations, during the period from 01.01.2019 to 31.11.2019, the turnover of September 2019 compared to August 2019 decreased by 20%. In October 2019, it decreased again by 20%, which compared to September-November 2018 amounted to 40%. The Fifteenth Court of Arbitral Appeal, by a deliberation dated September 24, 2020, annulled the said decision, which rejected the claims in full. Further, the appellate body noted that “Meanwhile, the evidence presented in the case does not support the infliction of any actual or alleged damages on the plaintiff by the actions of the defendant. “. The North Caucasus District Arbitral Court upheld the decision of the Fifteenth Arbitral Appeal Court dated 24.09.2020 in case No. А53-357 / 2020.
In case No. A54-4578/2017, the plaintiff filed a claim for damages from the defendant (damage to reputation) in the amount of RUB 12,819,135.00. As evidence of the reputation of the company formed, the applicant presented copies of diplomas and letters of thanks from government authorities, local authorities, organizations and presence in the rankings. Moreover, in support of the damage to his reputation inflicted on him, the plaintiff referred to the 2016 and 2017 financial statements presented by him in the documents in the file; a certificate reflecting the deviation of demand in the company from the usual level after publication, an expert opinion.
The Arbitration Court of the Ryazan region, refusing to comply with the requirements of this part, proceeded as follows. As it appears from the text of the decision of the court of first instance of 14.12.2018 in case no. A54-4578/2017 that the evidence presented by the plaintiff is presumptive, and any element allowing the reliable establishment of the existence of detrimental consequences for the plaintiff, including financial losses, resulting directly from the distribution of the disputed articles by the defendant, was not presented in the documents of the file. This decision survived in cassation.
Summarizing all of the above and taking into account current case law, it can be concluded that the courts of the Russian Federation, when deciding to recover damage to reputation, proceed exclusively from the specific circumstances of the case and from evidence leading to adverse consequences.