I have been moved to write this article by the client's appeal to our company. At appealing, he has pointed out that a few years ago one of the mass media published with respect to him an article, in which he was accused of committing a crime.
Indeed, according to his explanations, the law enforcement authorities were carrying out a check with respect to him with a view to his involvement in the committing a crime, but finally the investigation did not reveal in his actions the elements of a crime, the criminal case against him was terminated, in connection with which he wanted to make the mass media, which had published the article, publish a refutation, as the circumstances set forth in the article discredited his business reputation and were not true to the fact.
However, the client has heard that the special period of the limitation of actions, which is one year, was applied to that category of disputes, and therefore he doubted whether he had the right to file a claim on the protection of the business reputation several years after the publication of the article.
Having analyzed the circumstances set forth by the client, we came to a conclusion that he has not missed a period of the limitation of actions, and he can protect his violated rights.
The above conclusion has been made by the specialists of our company on the grounds of a system analysis of the norms of the Civil Code of the Russian Federation and the position of the Supreme Court of the Russian Federation and has been founded on the following provisions.
At first I offer to consider the merits of the disputes of this category.
Paragraph 9 of Resolution of the Plenum of the Supreme Court of the Russian Federation of 24.02.2005 No. 3 “On judicial practice in cases on the protection of the honor and dignity of citizens and also the business reputation of citizens and legal entities” (hereinafter referred to as Resolution No. 3) states that
“In accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 29 of the Constitution of the Russian Federation, which guarantee everyone the right to freedom of thought and speech, as well as to freedom of the mass media, it is necessary to distinguish between the existing statements on the facts, which can be verified as to whether they are true to fact, and value judgments, opinions, beliefs, which are not a subject of the judicial protection under Article 152 of the Civil Code of the Russian Federation, as, being an expression of a subjective opinion and the views of the defendant, it is impossible to verify whether they are true to fact.”
By virtue of Part 1 of Article 23 of the Constitution of the Russian Federation, everyone has the right to inviolability of a private life, personal and family secrets, the protection of the honour and a good name.
In accordance with Paragraph 1 of Article 152 of the Civil Code of the Russian Federation (hereinafter referred to as the C.C.R.F.), the citizen is entitled to demand in court the refutation of the information discrediting his honour, dignity or the business reputation, unless the person who has disseminated such information proves that it is true to fact. The refutation shall be made in the same manner as the one that has been used to disseminate the information about the citizen or in another similar manner.
The information discrediting the honour, dignity or the business reputation of a citizen and which has been disseminated in the mass media shall be refuted in the same mass media. The citizen in respect of whom such information has been disseminated in the mass media is entitled to demand, along with a refutation, a publication of his answer in the same mass media as well (Paragraph 2 of the above Article).
According to the explanations given in Paragraphs 7, 9 of Resolution No. 3, in cases of this category it is necessary to take into account the fact that the circumstances which, by virtue of Article 152 of the C.C.R.F., are of value to the case, which must be determined by the judge at accepting a statement of claim and preparing a case for a judicial trial, as well as during the judicial trial, are:
– the fact that the defendant has disseminated the information about the plaintiff,
– a discrediting character of this information;
– the fact they are not true to fact.
If at least one of the above circumstances is absent, the claim can not be satisfied by the court.
The dissemination of the information discrediting the honor and dignity of citizens or the business reputation of citizens and legal entities, shall be understood as the publication of such information in press, radio and television broadcasting, the demonstration in newsreel programmes and other mass media, the dissemination in the Internet and by using other means of telecommunication, the presentation in the service characteristics, the public statements, the declarations addressed to the officials, or a communication in one or another form, including in an oral one, at least to one person.
The information, which is not true to fact, shall be the statements about the facts or events, which have not taken place in reality during the time which the challenging information relates to.
The discrediting information, in particular, shall be the information, which includes the statements on the violation by a citizen or legal person of the existing legislation, committing a dishonest act, an improper, unethical behavior in a personal, public or political life, dishonesty in performing industrial, economic and entrepreneurial activities, the violation of the business ethics or good business practices, which diminish the honor and dignity of a citizen or the business reputation of a citizen or legal entity.
Thus, taking into account the fact, that our client has presented an evidence of the publication of an article in the mass media, by the resolution on the termination of the criminal case initiated against him he has confirmed that the information stated in the article was not true to fact, and the information stated in the article, according to which he has been accused by the journalists of committing a crime evidently derogates his business reputation, all this demonstrates that he has observed three criteria, the existence of which provides the ground for satisfying the claims.
At the same time, the client had a reasonable question, taking into account the fact that several years have passed since the publication of the article, whether the court would dismiss the claim due to the fact that he had missed a period of the limitation of actions.
In accordance with Paragraph 2 of Article 199 of the C.C.R.F., the limitation of actions shall be used by the court only upon the application of the party to the dispute, filed before the court passes a decision. The expiry of a period of the limitation of actions, about the use of which the party to the dispute has applied, shall be the ground for the court to make a decision to dismiss the claim.
According to Paragraph 1 of Article 196 of the C.C.R.F. The general period of the limitation of actions shall be established as three years as from the date determined in compliance with Article 200 of this Code.
Article 197 of the C.C.R.F. states that for the individual kinds of claims, the law may establish special periods of the limitation of actions, reduced or extended as compared to the general period.
Thus, Paragraph 10 of Article 152 of the C.C.R.F. determines a special period of the limitation of actions, according to which, The period of the limitation for the claims filed in connection with the dissemination of the above information in the mass media shall be one year after the date of the publication of such information in the relevant mass media.
Apparently, the client having read the provisions of the Civil Code of the Russian Federation considered that he had missed a period of the limitation of actions.
However, this conclusion can not be accepted under the following grounds.
From the analysis of the norms of Paragraph 1 and Paragraph 10 of Article 152 of the C.C.R.F., it follows that the subject of the legal regulation in these norms is the relations related to the dissemination of the various information.
Thus, Paragraph 1 of Article 152 of the C.C.R.F. regulates the relations related to the dissemination of the information discrediting the honor, dignity or the business reputation of a citizen.
As mentioned above, when challenging such information, the person who has applied for the protection of his violated rights must prove only the fact of its dissemination and a discrediting nature of that information. In this case, the plaintiff shall not prove the fact that the challenging information is not true to fact. On the contrary, by virtue of the direct instruction of the law, the obligation to prove the fact that the disseminated information is true to fact shall rest with the person who has disseminated the information.
At the same time, Paragraph 10 of Article 152 of the C.C.R.F. regulates the relations related to the dissemination of any information that is not true to fact, regardless of whether it is discrediting or not. When challenging such information, the obligation to prove the fact that the challenging information is not true to fact shall rest with the person who is challenging the information disseminated. At the same time, in this case, the plaintiff shall not prove a discrediting nature of the challenging information.
Thus, under the grounds specified in Paragraph 1 of Article 152 of the C.C.R.F., the person shall be entitled to challenge the information that discredits him, and under the grounds specified in Paragraph 10 of Article 152 of the C.C.R.F. – the information that is not true to fact.
However, in accordance with Article 150 of the C.C.R.F., the honour, a good name and the business reputation are non-material values of a citizen.
According to Article 208 of the C.C.R.F., the limitation of actions shall not be applicable to the claims for the protection of personal non-property rights and other non-material values, except in cases stipulated by the law.
The law stipulates the period of the limitation of actions for the protection of the honor, dignity and the business reputation exclusively for the cases of challenging the information specified in Paragraph 10 of Article 152 of the C.C.R.F., i.e. the information, which is disseminated in the mass media and challenged only on the ground that it is not true to fact.
While the law does not stipulate the period of the limitation of actions for challenging the information discrediting the honor, dignity or the business reputation of a citizen, regardless of the manner of its dissemination, and therefore by virtue of the provisions of Article 208 of the C.C.R.F. the limitation of actions shall not be applicable to such claims.
The same legal position has been reflected in the appellate decision of the Supreme Court of the Republic of Mari El of 21.08.2014 in case No. 33-1405/2014 and the appellate decision of the Moscow City Court of 14.03.2017 in case