Учебный год 22-23 / William_Simons_Private_and_Civil_Law_in_the_R

dignity, and business reputation without grounds is unacceptable. Opinions formedconditionallyonthebasisof“unconfirmedreports”,“preliminary information”, etc. should in no way refer to the honor, dignity, or business reputation of a person since—for the public—such announcements are indistinguishable from direct confirmations.

3. Along with the difficulties related to the definition of the character ofstatements,courtsoftenexperiencedifficultyduetovaryinginterpreta- tions of the parties concerning, first, the content of such statements and, second, the degree to which a statement infringes upon the honor, dignity, or business reputation of a specific person.

An example of a serious study of the content of disputed statements, from my point of view, is to be seen in the hearing by the Timiriazev Raion Court in Moscow of a case involving the protection of honor, dignity, and businessreputationfiledbyNTVcorrespondentE.V.Masiukagainstthe

Shchit i Mech newspaper and the author of an article therein which claimed that Masiuk “fabricated materials about Dudaev and Basaev for money”. In court, the defendants claimed that the words “for money” in the text of the article referred only to the fact that Masiuk received a salary from the NTV television company and nothing more. However, in reviewing the text as a whole, the court noted the claim that Masiuk received money was preceded by a discussion of corruption among journalists. Further- more, in the final paragraph of the article, Masiuk was accused of having no principles or conscience. Taking this into consideration, the court concluded that the sense of the article was to be seen in conveying to the public that Masiuk received money from Dudaev and Basaev for her reports, and not in the confirmation that she was paid by her employer, the NTV television company. On these grounds, the court ruled in favor of Masiuk.

The opposite example is provided by a claim filed in the Gagarin

Raion Court in Moscow by K.A. Liubarskii against the Loventa publishing houseandS.S.Govorukhin,whichafterLiubarskii’sdeathwascontinued by his widow.

Loventa’spublicationofthe“ConclusionsoftheParliamentaryCom- mission Investigating the Reasons for and Circumstances Surrounding the Crisis Situation in the Chechen Republic”, with commentary from the commission chairperson, RF State Duma Deputy S.S. Govorukhin, served as grounds for the cased filed with the court by Liubarskii.The publica- tion of the “Conclusions” was not sanctioned by the RF State Duma and was the private affair of the publisher and commentator.

The published text of the “Conclusions” stated that “a certain halo of purity and nobility was created around the criminal regime of Dudaev”.

The “Conclusions” further mentioned that “no small efforts were made

[to this end] by Andrei Fadin from Obshchaia Gazeta, Kronid Liubarskii from Novoe Vremia […] and many others”.

The authors of the “Conclusions” then wrote that “the commission has at its disposal a document from the Security Department for Emergency Situations which to some degree explains the behavior of the mass media”. Following this, the “Conclusions” included the text of a report from the head of the State Security Department of the Chechen Republic, S.S. Geliskhanov, to the President of Chechnia, D.M. Dudaev, stating that the State Security Department had spent $1.5 million on payments for journalists in December 1995.

The text of the above report—which was published in the “Conclusions”—was accompanied by a comment made by the authors of the “Conclusions” stating that:

“the commission does not have the right to interpret said document literally; money may have been spent not on buying [the loyalty of] journalists, but rather on their transportation, accommodation, lodgings, and other organizational costs.”

Liubarskii viewed such information as a communication that he had used financial aid from Dudaev’s government and that precisely this had explained the journalistic position he took while reporting and analyzing events in Chechnia. For this reason, he filed a claim for the protection of his honor, dignity, and business reputation against Loventa and Govorukhin, who had given the text to the press and who had also commented on its publication.

The court denied Liubarskii’s claim stating that:

“in the text which was contested by the plaintiff, the court has not found any in- formation that infringes upon the honor, dignity, and business reputation of K.A.

Liubarskii or that specifically referred to K.A. Liubarskii.”

The plaintiff had submitted a letter to the court from several renowned Russianlinguistsinwhichtheystatedthat—intheiropinion—thetextin questionindirectlyaccusedthepersonsnamestherein,inparticularK.A.

Liubarskii, of receiving money from the Chechen government. In this case, the opinion of the linguists did not enjoy priority over the opinion of other readers since the court was most concerned with how the text was received by its target audience—the general public.

The use of linguists here was a case of excessive insurance for one’s position. Due to their expert status, linguists are more critical of texts than are other readers. For this reason, even if they had interpreted the text as an indirect accusation that of persons named therein had taken

moneyfromtheChechengovernment,theaveragereader—notversedin theanalysisoftexts—wouldcertainlyinterpretthe“sensational”statement as a direct accusation of the persons who were named therein.

It is clear that a false indirect accusation is as unlawful as a false di- rect accusation—both can infringe upon the honor, dignity, and business reputation of a person.

Therefore, the court in this case turned Article 152 of the Civil Code from a provision that unconditionally prohibits infringements upon honor, dignity, or business reputation into one that determines how this nevertheless can be done.

An interesting analysis, not of a text but, rather, of an entire magazine column is given by a case heard by the Chertanov Raion Court in Moscow involving the protection of honor and dignity filed by a model against the Andrei magazine on the grounds that her photograph was printed next to a column describing how certain Russian women serve as living containers for the transportation of narcotics.The plaintiff claimed that readers could infer that the photograph was printed as an example of one such woman. The court ruled in favor of the model after she submitted in evidence to the court other magazines in which similar photographs were accompanied by a disclaimer stating that they had no relation whatsoever to the text.

Theaboveexamplesshowhowtheanalysisoftextsbyaplaintiffand defendantcanoftendiffer,andalsohowoftentheintentofanauthorcan differfromthepublic’sinterpretationofatext.Inamajorityofcases,this discrepancy can be explained—in my opinion—by the position taken by defendants once proceedings have been commenced. However, situations do exist where such a discrepancy exists objectively right from the very beginning.

Obviously, in many cases, conflicts can be resolved and rights that are violated restored by means of the publication, not of a retraction but, rather, of an explanation from the defendant. Unfortunately, Article 152 of the Civil Code does not provide for such a means of protecting rights that have been violated.

If the courts could make use of several various mechanisms to pro- tect rights that have been violated, this would significantly increase their ability to resolve conflicts.

4. The genre of a publication cannot but be of significance in hearing cases of contested statements.

Article 57 of the RF Law “On the Mass Media” contains a list of instances where the mass media are relieved of liability for the informa-

tion which they publish. The content of this list is a function of the tasks which face the mass media.

First, the media are relieved of liability for the dissemination of infor- mation contained in mandatory or official announcements or speeches; second, if such information literally reproduces information distributed by other mass media that could be held liable for their acts; third, if the distributedmaterial“iscontainedinauthors’worksputontheairwithout a preliminary recording, or in texts which are not subject to editing in accordance with the present law” (this refers to the Law “On the Mass Media”, although in reality it does not contain a list of texts that are not subject to editing).

The latter case is apparently in need of an explanation. Technically, authors’worksputontheairwithoutapreliminaryrecordingsimplycan- not be checked by an editor.Therefore, the public necessarily understands that what an author says here is his own opinion only if an editor—in the person of the host of the program—does not concur with the author’s opinion.

If an editorial board does not agree with information contained in works submitted in advance, then it may decide to refrain from putting such works on the air and thereby from distributing inaccurate informa- tion which may be damaging to a person’s reputation.

Nevertheless, there is certainly a genre of journalism that should not be subject to editing—the interview. First of all, interviews contain information about the interviewee himself. Therefore, editing an inter- view deprives it of all meaning. A pre-requisite for relieving the mass media of liability for the content of an interview must be the public’s clear and certain understanding that a newspaper is not entitled to edit an interview and that only the interviewee is responsible for the content of an interview.

As far as we can see, a deciding factor in this issue is the understanding of the public of the character of distributed information. For a start, in any case, interviews—it seems to us—must be accompanied by a disclaimer that the interviewee is solely responsible for their entire content.

5. According to Article 152(7) of the Civil Code, regulations governing the protection of honor, dignity, and business reputation of a citizen also apply to the protection of the reputation of a legal person. What does the concept of “the business reputation of a legal person” mean? If a person hasvariousspheresofactivityinlife—personal,professional,andpolitical, thenalegalpersonhasonlyonesphereofactivity—theachievementofits goals as set forth in its charter (ustav). The image of a legal person exists only in this field.The business reputation of a legal person is apparently

its image in the eyes of others, which allows it to function in accordance with the goals in its charter.

Article 152(7) of the Civil Code does not contain any restrictions relative to the types and spheres of activities available to legal persons the business reputation of which is protected by law. This means that the law protects the business reputation of any legal person striving to reach the lawful goals in its charter, while the word “business” reputation should not be understood as connected only to entrepreneurial activities. First, not only the business but also the moral aspects of a commercial organization in the eyes of others is important in order for it to successfully function. For example, this includes the social organizations and movements that it finances or the charitable projects that it supports.

Second, a non-commercial organization also cannot successfully function without a suitable reputation.

The main difference between the protection of the business reputa- tion of a legal person from that of a of a citizen lies in the fact that compensation for moral damages cannot be applied in cases of protecting the business reputation of a legal person.

In fact, however, the compensation of moral damages does not at play the role which it was accorded by the legislator. In cases of claims filed by citizens concerning the protection of honor, dignity, or business reputation,thefinesthatareimposedupontheviolatorstaketheplaceof compensationofmoraldamages.Foraplaintiff,finesareimportantbecause they punish the violator and provide something in the way of a guarantee that the violation will not be repeated. For this reason, plaintiffs—as a rule—file large suits without justifying the amount claimed, while the court goes ahead and reduces the amount thereof several-fold without providing any motivation therefor.

The compensation for moral damages that is awarded in favor of a legal person has two explanations: first, the collection of monetary sums from a violator possibly can take the role of a fine charged for the legal violation committed; second, this could represent compensation for property damage caused by an infringement of the business reputation of an organization in cases where it is impossible or extremely difficult to determine the amount of damages caused.

With regard to the first explanation, the fine, apparently, should be collected for the benefit of the state rather than the victim.The RF Law “OntheProtectionofConsumers’Rights”stipulates—alongwithjudicial protection of consumers’ rights—the collection of fines by the court for the benefit of the state. Therefore, lawmakers in principle have made

allowance for combining compensation of harm inflicted upon a private person, with the collection of fines by the state.

As far as compensation property damage is concerned by means of collecting a certain amount for the benefit of a victim that does not require precise motivation, such a norm is contained in the RF Law “On

Copyright and Neighboring Rights”.

Therefore, the legislator had the opportunity to stipulate, in the RF

CivilCode,theimpositionofvarioustypesoffinesuponpersonswhohave infringedaperson’shonor,dignity,orbusinessreputation.Ifthelegislator has failed to do so, and instead has limited the remedies to compensation of proven property damage and moral damages, it has done so intentionally. One can raise the issue of amending existing legislation, but one type of damage remedy cannot be replaced by another in contravention of the legislation.

Differences in the goals of legal persons as set forth in their charters alsoentaildifferencesintheapproachestakentodisputesconnectedwith their business reputation.

In accordance with Article 6 of the RF Law “On Non-Commercial Organizations”:

“social and religious organizations (associations) are deemed to be voluntary associations of citizens who according to procedure established by law have united on the basis of common interests for the satisfaction of spiritual or other non-material needs.”

Consequently, a social organization should have, as one of its goals, the protection of the common spiritual interests of its members. These com- mon spiritual interests—as a rule—are integrally connected to the honor and dignity of members of the social organization. At the same time, the business reputation of a social organization itself directly depends on the degree to which the group recognizes the spiritual interests which unite its members. Therefore, protection by a social organization of its own business reputation often overlaps with protection of the honor and dignity of its members.

This problem can be approached from another angle. Article 51(2), of the RF Law “On the Mass Media” prohibits journalists from:

“disseminating information with the aim of discrediting certain categories of citizens according to sex, age, race or nationality, language, religious beliefs, profession, resi- dence or workplace, as well as in connection with one’s political convictions.”

Insofarasthelawprohibitssuchbehavior,itisnecessarytofindamecha- nism in the legislation for implementing this prohibition.

Such a legal mechanism certainly is to be seen in the protection of business reputation by social organizations uniting various groups of people. From this point of view, the Khoroshevskii Raion Court in Mos-

cow heard an interesting case involving a claim of the Russian Center of Hare Krishna Societies for the protection of its business reputation against the Sviato-Vladimir Brotherhood publishing house and the author of a brochure printed by said publisher who wrote that “Hari Krishnas kill dissenting sectarians by a shot to the head or by drowning” and that

“a number of even externally respectable sects, for example […] Hari Krishnas […] have provisions in their program documentation which stipulates the neutralization and destruction of those who do not agree with their teachings”.

The plaintiff felt that the above statements damaged its business reputation and prevented it from the normal exercise of its goals as set forthinitscharter.Atthesametime,thesestatementscouldbequalified— using the terms of the RF Law “On the Mass Media”—as discrediting certain categories of citizens exclusively according to their “relationship to religious.”

In its claim, the Russian Center of Hare Krishna Societies demanded retraction of the general character of the first opinion, insofar as the author wrote of murders as though such were acceptable practice among the Hare Krishnas, and also a retraction of the second statement.

The defendants claimed that the contested statements do not discredit the business reputation of the Russian Center of Hare Krishna Societies insofar as they referred to the Hare Krishna sect overall, and not specifically to those associated with the Russian Center of Hare

Krishna Societies. Concerning the statements made in the brochure, the defendants maintained that they corresponded to reality.

In response to the defendants’ first objections, the plaintiff in turn claimed that all members of the Hare Krishna sect form a uniform whole and,therefore,thatthestatementsofthebrochure’sauthordiscreditthe business reputation of any Krishna organization, including the largest such organization in Russia—the Russian Center of Hare Krishna Societies.

In proving the grounds for their statements, the defendants submitted to the court proof of a murder committed by a member of one Hare

Krishna sect in the United States some fifteen years previously. The defendants had no other information regarding murders committed by Hare Krishnas.

At a court hearing, the defendants also claimed that by Hare Krishna “program documentation” they were referring to ancient Hindu religious books.

Following the testimony of the defendants, the parties agreed to concludeanamicablesettlement.Intheiragreement,thedefendantsfirst admitted that they had information only regarding one murder commit- ted by a Hare Krishna member in the United States some fifteen years previously,andtheplaintiffsubmittedtothecourtdocumentsattestingto

the active participation of the directorship of the Hare Krishna organization of the United States in solving said murder. Second, the defendants clarified that Hare Krishna “program documentation” refers to ancient

Hindu religious books.

In turn, the plaintiff claimed that instructional religious books can only be interpreted within the framework of the traditions of a given be- lief, and that the defendant’s literal interpretation of the text of ancient

Hindu religious books contradicts the religious traditions of the Hare Krishna sect as well as the interpretation of such books by practicing Hare Krishnas.

We can see that the right of a social organization to protect its business reputation represents a guarantee of the honor and dignity of the goals of a social group. However, insofar as the plaintiff in fact is a legal person, and the matter involved its business reputation, there could be no call in such a case for moral damages in accordance with existing legislation.

At the same time, this case shows that rights violated with regard to honor, dignity, and business reputation may be restored not only by means of the publication of a retraction of information that does not correspond to reality, but also by means of the publication of an explanation or additional clarifications by a defendant.

It is clear that in this case the conclusion of an amicable settle- ment was a means for the plaintiff to compensate for the absence of the opportunity to demand the publication of a clarification or additional information by the defendant.

In practice in Russia today, state bodies often have the status of a legal person. Does this mean that they also are entitled to file claims for the protection of their business reputation?The question has a practical meaning. There has been a case filed by the government of the City of

Moscow with the Kuznets Raion Court in Moscow against E.T. Gaidar regarding the protection of business reputation.

According to the Charter of the city of Moscow, the government of Moscow is a legal person, which serves as grounds for it to consider itself as first, the holder of a business reputation, and second, to protect such reputation in court.

A public statement made by Gaidar regarding the fact that economic life in Moscow “is horribly regimented and bureaucratized”, the result of which is “massive corruption” served as grounds for the claim.

The fact that the government of the City of Moscow filed a claim for the protection of its business reputation clearly contradicts the meaning of Article 152 of the Civil Code. Business reputation is an institute of private law since it has significance only in relations based on the free

will of parties and on obligations freely accepted by subjects of the law. In the absence of such freedom, which is precisely the case where relations of power (vlastnye otnosheniia) between parties are involved, business reputation loses its significance—in any case, for the subject that enjoys such a position of power. The possibility for the City of Moscow as an organ of state power to perform its functions is a factor not of its business reputation but of its authority of power. The business reputation of the City of Moscow in the sphere of public law does not exist since no one is entitled to choose whether or not to carry out the ordinances of the City of Moscow to which he or she is subject. The City of Moscow does have, of course, a business reputation as a legal person but only in that sphere in which it enters into relations with other subjects of the law on the bases of equality and autonomy of will, i.e., in the sphere governed by private law and not by public law.

The statement by Gaidar related to the activity of the Moscow city government as an agency of state power governed by public law.The activity of the City of Moscow that is governed by private law was in no way touched upon by the disputed statement. It is possible, of course, that the statement of Gaidar could undermine the authority of the Moscow city government.

It would also be possible for the head of the Moscow city govern- ment or members thereof to file a lawsuit for the protection of their own personal business reputation as a citizen if the statements made negatively affected their honor, dignity, and business reputation. If the cause of ac- tion against Gaidar has as its goal the protection of the honor, dignity, and business reputation of the head of the Moscow city government who signed the petition for filing the lawsuit, then this is all the more reason not to substitute a means of protection that is provided for by law for the defense of one’s rights with one that is not set forth in the legislation.

It is interesting to note that the plaintiff in this case did not contest the fact of corruption in the city administration but, rather, that there had been no causal connection established between this corruption and the degree of regulation of economic activity in the city. But no one can demand that the analytical conclusions of one person should coincide with his own. One should be free, in making an analysis, to draw one’s own conclusions as to causal connections concerning events in their surroundings. The government of the City of Moscow disputed the value judgment relating to its public activities. Obviously, such a dispute has nothing to do with the business reputation of a legal person.

In discussing thee business reputation of legal persons, one can posit the question of whether or not the Russian Federation, Subjects of the

RF, or municipalities should be able to file lawsuits insofar as they are actors in transactions regulated by civil law? We think that they should not. The functioning of the rights of these subjects in the area of private law relations is totally subordinated to their public law activity. Extending civil law norms governing the protection of business reputation to these subjects would contradict this basic element of their existence. Further- more, such an extension would lead to the unjustified expansion of the possibility for these subjects to influence private persons.

Legal persons are not only capable of protecting their business reputation; they can also infringe upon the honor, dignity, and business reputation of others. From this point of view, the most dangerous of these are state agencies.

However, not all agencies of state power are legal persons (we will not study the issue of whether or not they should be legal persons at all). If such an agency i.e., the mayor of Moscow, who unlike the government of the City of Moscow is not endowed with the status of a legal person, publishes and disseminates a document containing information that damages the honor, dignity, or business reputation of an individual, then civil law legislation may not be used to protect such violated rights since only legal persons bear liability stipulated by civil legislation.

In this case, there is of course the possibility of applying administrative legislation. The RF Law “On Appealing in Court Acts and Decisions

ViolatingtheRightsandFreedomsofCitizens”offerstheopportunityto citizens to petition a court to declare as unlawful the acts of “state agencies, agencies of local self-government, institutions, enterprises and their associations, social associations, and officials” expressed in the adoption and dissemination of such documents.

In the event that such acts are declared unlawful, the court is obliged to restore the rights of citizens which have been violated, while citizens are entitled to claim compensation for losses and moral damages caused by said acts in accordance with the provisions of the Civil Code. The means by which a court may restore rights which have been violated are not specifically stipulated by the RF Law “On Appealing in Court Acts and Decisions” referred to above.

The acts of state agencies and officials that may be contested in this way include the dissemination of all sorts of official information, letters, conclusions and informational letters.

The need to turn to the RF Law “On Appealing in Court Acts and Decisions” arises only in instances where unlawful acts have been committed by a subject that does not have the status of a legal person.