Checklist: Protecting business reputation

Are there grounds to file a lawsuit to protect your business reputation?

Main criteria:

1. Information is defamatory in nature
2. Information is not a value judgment / opinion
3. Information has been disseminated
4. Information is not factual
5. The subject whose rights are violated is definite

Criteria 1. Information is defamatory in nature

Essence of this criteria

Information that is defamatory contains a negative assessment of a person’s activities.

Position of the Supreme Court

In particular, defamatory information contains statements about:

1. a person’s violations of the law
2. the commission of a dishonest act through improper, unethical behavior in private, public or political life
3. dishonesty in production, economic and entrepreneurial activities
4. violations of business ethics or norms that undermine the honor, dignity or business reputation of a person

para. 7 Resolution of the Plenum of the Supreme Court of the Russian Federation dated 24.02.2005 No. 3

Examples from court practice: information is defamatory in nature

Decision of the Arbitration Court of the Krasnoyarsk Territory dated 09.10.2018 in case No. A33-12895/2018

The information was recognized as defamatory: :

“… information about Tema brand milk was posted stating that:

• <…> milk fat which should glow yellow was not found in the samples <…>
• <…> the luminoscope showed the absence of milk fat in Tema milk <…>
• <…> there is no milk in there <…>”

Justification of the court: the court came to the conclusion that these phrases defame the plaintiff’s business reputation, since the defendant did not provide evidence of poisoning by Tema products and therefore did not confirm the veracity of this information.

Examples from court practice: information is not defamatory in nature

Resolution of the Arbitration Court of the Volga-Vyatka District dated 28.12.2023 in case No. A17-4065/2022

The information was recognized as defamatory:

• “Our soldiers will die from this baryshskoy porridge”
• “The results of the audit turned out to be scandalous. According to the experts, the canned goods “Stewed Beef”, “Rice Porridge with Beef” and “Buckwheat Porridge with Beef” produced in Barysh to supply army rations did not meet GOST standards in terms of taste, smell, appearance, nutritional value and labeling requirements.”
• “And the most unusual discovery awaited visitors in the warehouses of the meat processing plant. There in the boxes lay 483 250-gram cans of canned food without labels or any other markings.”

Justification of the court: the court examined the protocols on bringing the plaintiff to administrative liability and refused to recognize the information as untrue and defamatory.

Criteria 2. Information is not a value judgment / opinion

Essence of this criteria

Defamatory information is not a subjective assessment and opinion of a person. However, an offensive opinion is in any case defamatory.

Position of the Supreme Court

Value judgments which cannot be verified to be true must be distinguished from statements of fact that can be verified.

para. 9 Resolution of the Plenum of the Supreme Court of the Russian Federation dated 24.02.2005 No. 3

When considering cases of protection of honor, dignity and business reputation, it is necessary to take into account that the value judgments, opinions and beliefs contained in the contested statements of the defendants are not the subject of judicial protection under Article 152 of the Civil Code of the Russian Federation unless they are offensive in nature.

para. 6 of the Review of the Practice of Consideration by Courts of Cases on Disputes Regarding the Protection of Honor, Dignity and Business Reputation (approved by the Presidium of the Supreme Court of the Russian Federation 16.03.2016)

Positions of other courts

Court practice distinguishes between the categories of expressing a critical opinion and a skeptical and sarcastic point of view on moral and ethical qualities forming a stable image of illegality in the actions of a person, as well as the defamatory nature of his thoughts and actions and dishonesty when making business and everyday decisions^[1].

The previously mentioned case is recognized by practice as a violation of the honor, dignity and business reputation of a person. When a person’s goal is to achieve a negative public mood towards a subject of law by contrasting his property status allegedly achieved at the expense of other citizens, the court comes to the latter’s defense^[2].

Examples from court practice: information recognized as defamatory

Resolution of the Arbitration Court of the Ural District dated 10.08.2021 No. in case No. A60-2606/2020

Information is defamatory due to its offensiveness:

• “Lawbreaker”
• “Worst supplier”
• “Doesn’t it seem strange that for some reason many clients of the management company REMP Zheleznodorozhny District for the last couple of years associate the work of the company and its staff with the underworld. ‘It seems to me that in hell there is a separate cauldron for you, and there will always be either just damn cold or very hot water that is dirty, of course, with sand.’”
• “Affiliate of hell and a reincarnation of the Gestapo. Worst service provider on Earth”, - another resident noted at about the same time. “Absolutely hellish company,” concluded a third..."

Justification of the court: the court found that these phrases were expressed in an offensive manner. Even though the information has the nature of the subjective opinion of the author, the offensive form is the basis for filing a claim for the protection of business reputation.

Examples from court practice: information not recognized as defamatory

Decision of the Moscow Arbitration Court dated 11.04.2018 in case No. A40-160657/17-91-1401

The information is not defamatory, since it expresses a subjective opinion:

“I think I couldn’t come up with a better description. An excellent and very “current-sounding” characteristic for a made-up corpse with pomaded lips in funeral slippers. On which they spend and will spend billions from the state budget under the guise of ‘salvation, support, assistance, restoration’ and so on. And absolutely all of this will go into pockets, not a single plant will be brought back to life...”

Justification of the court: the court recognized that these facts are a private / subjective opinion, therefore, there is no violation.

Criteria 3. Information has been disseminated

Essence of this criteria

Dissemination – publication, broadcast, demonstration or communication of information to at least one person.

Position of the Supreme Court

The dissemination of information defaming the honor and dignity or business reputation should be understood as the publication of such information in the press, broadcast on radio and television, demonstration in newsreels and other media, distribution on the Internet, as well as using other means of telecommunications, presentations in official capacities, public speeches, statements addressed to officials, or a message in one form or another, including oral, to at least one person. 

para. 7 Resolutions of the Plenum of the Supreme Court of the Russian Federation dated 24.02.2005 No. 3

The dissemination of information must be confirmed in an appropriate way (for example, in relation to posts on social networks - a protocol of inspection by a notary).

para. 3 Review of the Presidium of the Supreme Court of the Russian Federation dated 16.03.2016

Examples from court practice: dissemination of defamatory information identified

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated 28.03.2023 No. 5-КГ22-147-К2

“19.06.2018 at 13:16, an anonymous negative review about the doctor G.Z. Mirkhaidarova was posted on the Internet on the website https://prodoctorov.ru, owned by Medrating LLC.
02.10.2018 Antonenko O.V. came to the reception and personally said that she wrote this review".

Examples from court practice: dissemination of defamatory information not identified

The ruling of the Supreme Court of the Russian Federation dated 21.06.2023 No. 307-ЭС23-3407 in case No. А56-88226/2019

In refusing to satisfy the claims, the courts proceeded from the lack of proof of the presence of the totality of circumstances provided for in Article 152 of the Civil Code of the Russian Federation.

In motivating this conclusion, the courts proceeded from the fact that there is no confirmation that the defendant owns the disputed page of the site, and therefore, there is no evidence that the information was disseminated by the defendant.

Criteria 4. Information is not factual

Essence of this criteria

Information that is not factual consists of statements that can be checked for compliance with the facts of objective reality which distort said reality.

Position of the Supreme Court

The burden of proving that the information is true lies with the defendant. There is no need to prove the validity of each word; it is enough to isolate key reliable information.

para. 7 Resolution of the Plenum of the Supreme Court of the Russian Federation dated 24.02.2005 No. 3

Examples from court practice: information is not factual

Resolution of the Arbitration Court of the Moscow District dated 31.05.2023 No. F05-12186/2021 in case No. А41-54681/2020

“The following information, contained in emails from a patent attorney, was found to be untrue and discrediting the business reputation of RED CAT LLC: “RED CAT LLC is engaged in falsification of evidence, including by presenting fabricated evidence of ownership of copyrights.”

Justification of the court: the court found that evidence sufficient to refute the expert’s conclusions, apart from the subjective opinion of the defendant, was not presented to the court, and the disagreement of the disputing party with the result of the examination does not in itself entail the need to conduct a repeated or additional examination in the case.

Examples from court practice: information is factual

The decision of the Moscow Arbitration Court dated 26.04.2017 No. А40-15832/17-15-144

“The company charges money... for carrying additional luggage, and the ‘extra’ may be... a handbag and much more.”

Justification of the court: the court concluded that this information was true and there was no refuting evidence.

Criteria 5. The subject whose rights are violated is definite

Essence of this criteria

Defamatory information must be directed against a specific subject. It is necessary that it be possible to determine whose rights they violate and who is the person authorized to file a claim, respectively.

Position of the Supreme Court

In cases of this category, it is necessary to keep in mind that the circumstances that must be determined by the judge are the fact that the defendant disseminated information about the plaintiff, the defamatory nature of this information and the inconsistency of its factuality.

para. 7 Resolution of the Plenum of the Supreme Court of the Russian Federation dated 24.02.2005 No. 3

Examples from court practice: subject is definite

Decision of the Arbitration Court of the Rostov Region dated 26.03.2024 in case No. А53-43298/2023

"Good afternoon! I want to save you from further problems: everyone who is looking for a job as a driver of a dump truck of category C CE, avoid these two offices ‘Sweet Oil’ and ‘Standard Project’."

Justification of the court: based on this information, the court was able to identify the subject and recognize that the information disseminated by the defendant was discrediting the business reputation of the plaintiff.

Examples from court practice: subject is indefinite

Decision of the Arbitration Court of the Astrakhan Region dated 27.12.2022 in case No. А06-5685/2022

“The plaintiff points out that when studying the “Typical Astrakhan” public page, the VKontakte social network, it was not possible to identify any data allowing to identify its owner. <...> Gazprom Dobycha Astrakhan LLC does not know the author of the text of the publication and the persons who published this text are unknown.”

Justification of the court: the court indicated that in cases where it is impossible to identify the person who disseminated defamatory information on the Internet, the claim to recognize it as untrue is considered in a special proceeding.

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[1] Decision of the Prikubansky District Court of Krasnodar (Krasnodar Territory) dated 26.10.2021 in case No. 2-14595/2021 [M-13923/2021]

[2] Resolution of the Ninth Arbitration Court of Appeal dated 21.02.2022 in case No. A40-36220/2020 [09AP-89306/2021]