Features of Legal Protection for Business Reputation

The right to business reputation, along with other intangible benefits and personal non-property rights such as, for example life and health, personal dignity, personal inviolability, honor and good name, privacy, authorship and others, belongs to a citizen from birth or by force of law, is inalienable and non-transferable in any other way.

At the same time, the rules on the protection of the business reputation of a citizen also apply to the protection of the business reputation of a legal entity.

What is business reputation

Business reputation is a public assessment, general or widespread opinion about the business qualities and merits of a person or legal entity acquired in the course of professional or entrepreneurial activity. The business reputation of an organization as a professional reputation earned among similar professionals (e.g., businessmen), as well as among persons to whom the organization's activities are directed (e.g., consumers of goods, works, services), includes the professional reputation of both the organization itself and its managers.

In this case, the business reputation of an organization may be damaged by the dissemination of defamatory information about the organization itself, as well as about the persons who are members of the organization’s governing bodies, as well as about the employees of this organization.

How business reputation is damaged

The mere mention of the right to business reputation in the law does not protect against the unfair actions of other persons who want to "float" themselves or simply harm them by diminishing the business reputation of a competitor. The options for violating business reputation are extremely diverse. In one case, this may be a post by an anonymous author on a social network or a review of a company on a marketplace containing a statement about its violation of current legislation. In another case, business reputation may be violated by broadcasting a report on television about a business owner committing a dishonest act towards a partner or his incorrect, unethical behavior in personal or public life. In a third case, a violation of business reputation may be expressed through public speeches, statements addressed to officials, which contain statements about facts that diminish the business reputation of a citizen or legal entity, but do not correspond to reality.

It is worth noting that only information that is in the nature of a statement of fact, but not a value judgment, opinion, or belief that is not essentially an insult, is subject to judicial refutation.

The presence of value judgments, opinions, and convictions in verbal-semantic constructions may be indicated by the presence in the text of an article of any linguistic (grammatical or lexical) markers of opinion (for example: in my opinion, in our opinion), assumptions or assessments, as well as sentences containing marker words “if, then...” etc.

It is also worth considering that an assertion as a linguistic category is not identical to an assertion of fact as a legal category, since the latter is clearly identified from the point of view of the possibility of proof, while the affirmative form of a statement is possible both in relation to information about a fact and in relation to an opinion, judgment, or assessment expressed by its bearer.

This is the difference between a statement of facts, the veracity of which can be verified, and an existing value judgment, opinion, or conviction that is not subject to judicial protection under Article 152 of the Civil Code of the Russian Federation.

At the same time, judicial practice proceeds from the fact that information indicating the illegal nature of the subject’s behavior is offensive in nature, therefore, even if it is presented as the subjective opinion of the author, and therefore may be the basis for filing a claim for the protection of business reputation.

At the same time, information contained in court decisions and sentences, decisions of preliminary investigation bodies and other procedural or other official documents, for the appeal and contestation of which another judicial procedure established by law is provided, cannot be considered as not corresponding to reality.

As can be seen from the above, the methods and options for causing harm to business reputation are varied and sometimes take on rather veiled forms in order, on the one hand, to avoid responsibility, and on the other hand, to achieve the desired dishonest goal - to create a negative public assessment of the business qualities and merits of a citizen or legal entity.

Such a veiled form may be considered to be the interpretation by the author of an article in the media of information contained in official documents, when the subjective opinion of the author of the story about the content of this information leads to its distortion and the dissemination of false information, especially if the information is of a defamatory nature.

Ways to protect business reputation

When considering ways to protect business reputation, first of all, it should be noted that the legal basis for the possibility of protecting business reputation is the provisions of Article 152 of the Civil Code of the Russian Federation, from the content of which it follows that a citizen or legal entity has the right to demand in court a refutation of information that defames his business reputation, if the person who disseminated such information does not prove that it corresponds to reality.

It follows from the meaning of this legal norm that only the person whose business reputation has been defamed can demand a refutation.

The proper defendants in claims for the protection of honor, dignity and business reputation are the authors of defamatory information that does not correspond to reality, as well as the persons who disseminated this information.

Claims for the protection of business reputation may be satisfied if the following conditions are met simultaneously:

• the fact of dissemination by another person of information regarding the plaintiff,
• the discrepancy between this information and reality and the defamatory nature of the dissemination of information.

In the absence of at least one of the specified circumstances, the claim cannot be satisfied by the court.

In this case, the defendant is obliged to prove the truthfulness of the information disseminated. In the event that the person who disseminated certain information proves that such information is generally true, even despite the plaintiff's proof of the fact of dissemination of information about him that discredits his business reputation, such person shall be released from liability.

The consideration of disputes regarding the violation of business reputation is referred to the exclusive jurisdiction of arbitration courts, and various claims may be used as methods aimed at restoring the violated right, depending on the nature and specific circumstances of the case.

For example, the law recognizes the publication of a refutation in the same mass media outlet as a method of protecting business reputation against the dissemination of defamatory and untrue information in the press (clause 2, Article 152 of the Civil Code of the Russian Federation).

If information that discredits a business reputation becomes available on the Internet after its dissemination, the plaintiff has the right to demand its removal, as well as a refutation of the said information in a manner that ensures that the refutation is communicated to Internet users (clause 5, Article 152 of the Civil Code of the Russian Federation).

In cases where information defaming the honor, dignity or business reputation of a citizen has become widely known and in connection with this a refutation cannot be brought to public attention, the citizen has the right to demand the removal of the relevant information, as well as the suppression or prohibition of further dissemination of the said information by confiscating and destroying, without any compensation, copies of material carriers containing the said information, manufactured for the purpose of introducing them into civil circulation, if the removal of the relevant information is impossible without the destruction of such copies of material carriers (clause 4 of Article 152 of the Civil Code of the Russian Federation).

In this case, the procedure for refuting information that discredits the business reputation of a citizen, in cases other than those specified in paragraphs 2–5 of Article 152 of the Civil Code of the Russian Federation, is established by the court.

In addition, a citizen about whom information has been disseminated that discredits his business reputation, along with a refutation of such information or the publication of his response, has the right to demand compensation for losses and compensation for moral damage caused by the dissemination of such information. A legal entity may only claim compensation for losses as material claims, but not moral damage.

Since claims for the protection of honor, dignity and business reputation are claims for the protection of non-property rights, the statute of limitations does not apply to them by virtue of Article 208 of the Civil Code of the Russian Federation, except in cases provided by law.

Stages of protection

The protection of business reputation begins with the collection of evidence and its analysis by professional lawyers for the purpose of assessing its sufficiency, admissibility and relevance for subsequent presentation to the court in a case on the protection of business reputation.

Such evidence may include:

• Protocol of notarial inspection of the site . Will allow to record the fact of existence of controversial publications containing defamatory information.
• Obtaining information about the domain name administrator. Required if the rights are violated on the Internet and it is necessary to establish the owner of the site on which the publication is posted.
• Linguistic conclusion . Necessary to answer the question of whether the information contested by the plaintiff is defamatory, and to assess its perception, taking into account that the disseminated information can be communicated to third parties in various ways (figuratively, allegorically, offensively, etc.).

After collecting evidence, you can try to settle the dispute out of court by sending a claim letter. A well-prepared claim often helps resolve the conflict without going to court, since already at this stage the offender understands the seriousness of the intentions of the person whose business reputation has been damaged, who has turned to specialists for help in preparing the claim.

If the violator refuses to voluntarily satisfy the requirements, the next step in protecting the violated right will be filing a claim in court.

Conducting such a case requires a high level of knowledge of both the norms of substantive law governing legal relations on issues of protecting business reputation, and the norms of procedural law, since in such cases it is sometimes necessary to use a wide range of procedural tools (conducting an examination, questioning an expert, involving co-defendants and third parties, clarifying the subject of the claim, preparing written explanations, as well as other statements and petitions).

Why it is better to do this not on your own, but with the help of specialists

As can be seen from the above, the determination of whether disseminated information is defaming a business reputation, as well as the methods of protecting it, are not an easy task, requiring deep knowledge and experience.

For example, it is not enough to consider that any information is clearly defamatory of a business reputation, even if it contains statements that at first glance may seem negative.

It is important to understand how to separate defamatory information from value judgments, opinions, and beliefs that are not subject to judicial protection since, being an expression of the subjective opinion and views of the defendant, they cannot be verified for their compliance with reality.

The prospect of a legal dispute over the protection of business reputation directly depends on the plaintiff's evidence that the person against whom the claim is filed has disseminated information and that this information is defamatory, as well as on whether the person who disseminated such information can prove that this information is true.

In order to properly collect evidence before going to court, it is best to contact professionals, since properly prepared evidence is the basis and guarantee of success for the upcoming case. If this is not done in a timely manner or the evidence is obtained in violation of the law, there is a risk of losing the case.

For over 20 years, Zuykov and partners has been helping not only authors and copyright holders protect their intellectual property, but also individuals and legal entities defend their right to business reputation.