In the current Civil Code there are three references to the right of legal entities to protect business reputation . The first is contained in Art. 152, the second refers to the agreement on commercial concession (Art. 1027), the third is indicated in Art. 1042 and refers to a simple partnership. Next, we consider how the protection of the honor and business reputation of legal entities is carried out.
General information
Based on the standards mentioned above, you can determine the key features of goodwill.
First of all, it is an intangible good. Secondly, the reputation is endowed with a sign of transferability. Thirdly, the protection of the business reputation of individuals and legal entities is carried out in identical ways.
In addition, it is endowed with a sign of alienation. However, it appears only in the entrepreneurial sphere. Alienation of reputation occurs when a transaction is made with an enterprise acting as a property complex. The possibility of the transition of reputation is determined by the fact that a commercial designation is included in the organization. Alienation of reputation also occurs along with the transfer of a trademark.
Of particular importance is the assessment of business reputation . Its value is the amount of the premium to the price paid by the acquirer in anticipation of the coming economic profit in connection with the purchased unidentifiable assets.
Reputation Importance
Goodwill is one of the essential conditions for the success of a legal entity. Its special significance is fixed at the legislative level. Different regulations establish rules that protect the business reputation of a legal entity. Article 3.1 of the Code of Administrative Offenses, for example, prescribes that the purpose of administrative sanction cannot be damage to the reputation. In Art. 14 of Federal Law No. 135 unfair competition is prohibited. In particular, the dissemination of false, distorted information about business reputation that could cause damage to the company is not allowed.
Jurisdiction
Claims for the protection of business reputation arising from legal relations in the field of entrepreneurial or other economic activity are considered by the arbitration court. In this case, the subject composition of the dispute does not matter. If the need to protect honor, dignity and business reputation arose in the framework of other legal relations, then the case is under the jurisdiction of the instance of general jurisdiction. In this case, the subject composition also does not matter.
Grounds for Claim
According to Article 152 of the Civil Code of the Russian Federation , a legal entity can send a statement to the court if there are a combination of three circumstances: there was a fact of dissemination of information about the organization, the information is defamatory and does not correspond to reality.
The Sun in the Decree No. 3 of 2005 discloses the essence of these circumstances.
The concept of "dissemination of information" is interpreted quite widely. It can be carried out, for example, on the radio, TV, in print, in public speeches, messages addressed to particular officials in writing or orally, on the Internet, etc.
Information that does not correspond to reality is called allegations of events / facts that did not take place in reality in the period to which they relate.
For example, information containing information confirming a legal entity’s failure to comply with the requirements of the law, dishonesty in conducting business activities, violation of business ethics, and customs of turnover is defamatory. All this information undermines the organization’s reputation.
The Supreme Court draws attention to the need to differentiate statements about facts and events, the correspondence of which to reality can be verified, and opinions, value judgments, beliefs that are not subject to protection in accordance with article 152 of the Civil Code of the Russian Federation. The latter are an expression of the subjective views of a particular person. They can not be checked for consistency with reality.
Nuances
If information defaming the organization’s reputation has been published in the media, the victim may demand their refutation in the same media. If such information is present in the document emanating from the enterprise, then the legal entity has the right to demand the cancellation or replacement of such an act.
Adversaries can disseminate in the media data that violates the interests or rights of the organization, but is not vicious. In such situations, in accordance with paragraph 3 of clause 152 of the Civil Code of the Russian Federation , a legal entity may publish its answer in the same media.
Loss
In the framework of protecting the business reputation of a legal entity in judicial practice , claims for compensation for damage resulting from the dissemination of defamatory information are considered. Losses include real damage and lost profits.
When recovering a legal entity, they often face certain difficulties and, in some way, with injustice. Difficulties are associated with compensation for lost profits. Injustice is expressed in the fact that even if the collection requirements are satisfied, the compensated loss will not be able to cover all losses, since the influence of the defamatory message can be quite long.
If the need to protect the business reputation of a legal entity arose as a result of the dissemination of information in the print media, then over time the relevance of this information will decrease. However, on the Internet, relevant information may be available without any restrictions.
Compensation for non-pecuniary damage
With its help, the issue of injustice can be solved in meeting basic requirements in protecting the business reputation of a legal entity . Meanwhile, the organization, being an artificial entity, in fact, can not experience physical or mental suffering. Consequently, the company cannot claim compensation for moral damage. This conclusion is confirmed by judicial practice.
However, since 2003, a slightly different trend has been noted. The turning point was the adoption of the Decision of the Constitutional Court No. 508-O of 2003. In it, the possibilities of protecting the business reputation of legal entities were significantly expanded. In particular, the COP indicated that:
- The applicability of a particular method of restoring a violated right must be determined solely in accordance with the nature of the organization.
- The absence in the legislation of a direct reference to one or another instrument for protecting the business reputation of a legal entity does not deprive it of the right to present a claim for damages, intangible, including those incurred in connection with the dissemination of defamatory information, or intangible damage that has its own content that differs from the essence of the harm caused to a citizen.
In its Decision, the Constitutional Court referred to the ECtHR judgment of 2000, in which the European Court indicated that the possibility of satisfying the claims of a commercial organization for compensation for moral damage cannot be ruled out.
Case studies
It is worth noting that the concept of "intangible losses" is not used in domestic law. According to the provisions of article 15 of the Civil Code, losses are always material. However, this concept reflects the characteristics of the harm caused to the commercial structure.
In judicial practice, there are many illustrative examples on this issue. So, the subject of one of the disputes was information discrediting the business reputation of the bank. Courts, including the court of appeal, spoke in favor of collecting non-material (reputational) damage from the violator of rights. Upon satisfaction of the claim, the arbitration indicated that the harm was expressed in the loss of confidence in the financial organization on the part of clients. This resulted in cash outflows. The court also agreed with the bank’s argument that the amount of reduction in the size of the deposit base acts as a measure to diminish its business reputation.
In another dispute, the plaintiff was denied compensation for reputational damage. However, the cassation court canceled the earlier decisions and sent the case for a new consideration. The Court of Appeal indicated that the organization could not experience suffering, either physical or mental. The legislation, in turn, does not establish the possibility of compensation for moral damage to legal entities.
This conclusion is opposed by the position of another arbitration court. He pointed out that article 12 of the Civil Code contains a provision providing for compensation for non-pecuniary damage, as well as allowing the use of other methods of protection established by federal law.
In development of this norm in paragraph 5 of Art. 152 of the Civil Code contains an indication of the possibility of a citizen to demand compensation for non-material damage in the framework of protecting honor, dignity and business reputation. According to paragraph 7 of the same rule, the rules of the article apply to cases of protecting the reputation of a legal entity. The arbitral tribunal also referred to the provisions of the Decision of the Constitutional Court No. 508-O. In fact, the court concluded that there was such a protection method in the law as compensation for reputational damage, but under a different name - "compensation for moral damage."
conclusions
As can be seen from the above examples, judicial practice on issues of compensation for moral damage is very contradictory. This is due, first of all, to insufficiently clear normative regulation.
The fact is that the legislator introduced the first part of the Civil Code in 1994. At that time, market relations were just beginning to emerge. The developers of regulatory acts did not then assume that in the near future the reputation of legal entities would acquire such significance. With the development of market relations, a need arose for a detailed study of issues related to the provision of legal services to legal entities in the field of protection of their reputation.
Criminal law
An application for the protection of the business reputation of a legal entity may also be filed within the framework of criminal proceedings. Such an opportunity is provided for under article 42 of the Code of Criminal Procedure. In case of damage to the organization’s reputation by a crime, it may be recognized as the injured party. Accordingly, the facts of the commission of an unlawful act and the occurrence of damage should be established for protection.
Crimes that can harm the reputation of a legal entity include:
- Illegal use of means of identification (trademark, in particular).
- Illegal receipt and disclosure of tax, banking, trade secrets.
Controversial issues
To ensure the protection of their reputation, a legal entity may file a claim for pecuniary damage in criminal proceedings if there is reason to believe that it was caused by a crime.
In article 44 of the Code of Criminal Procedure, there is a provision providing for the possibility of the victim to bring a civil lawsuit and for compensation for moral damage. Compensation for such damage, as follows from the above reasoning, may take place in the framework of civil proceedings. However, a similar conclusion cannot be drawn regarding criminal trials.
In the event of damage to business reputation, non-contractual obligations related to its compensation appear. Their normative regulation is provided by the norms of Chapter 59 of the Civil Code.
At the same time, the Code contains 1064 article, which is general in the framework of regulation of obligations related to compensation for harm. This norm says that the damage caused to the property of an individual or legal entity must be fully compensated by the subject who caused it. Based on this, it can be concluded that either the reputation relates to property, or damage does not entail the occurrence of non-contractual legal relations.
Due to the fact that article 152 is contained in Chapter 8 of the Code, which is called “Intangible Goods and Their Protection,” there is no reason for the assumption that reputation is part of the legal entity’s property complex. An analysis of the content of article 42 of the CPC leads to a similar conclusion. It says that an organization is recognized as a victim if its property and reputation were damaged by a crime.
The timing
Due to the fact that the lawsuit to protect the organization’s reputation is aimed at restoring moral rights, the statute of limitations does not apply to it, according to article 208 of the Civil Code. However, there are exceptions to this rule.
If defamatory information was disseminated in the media, then the legal entity may require the publisher to publish a refutation. If the applicant is denied this, then he has the right to appeal to the court to challenge the inaction of the violator of rights. In this case, the application can be submitted within a year from the date of dissemination of relevant information.
Features of the claim
The application is made in accordance with general rules. The lawsuit must indicate:
- The name of the authority authorized to consider such disputes.
- Information about the plaintiff: name, location, contact details.
- Information about the defendant. It can be a legal entity or a citizen. In the first case, the name of the location, contacts are also indicated, in the second - F. I. O., address of residence, phone number (if known).
The text of the lawsuit summarizes all the circumstances of the case. It is recommended that information be given in chronological order. It is important to avoid emotional statements in the text. The lawsuit must be written in the official business language.
Legal assistance
As a rule, the company provides for the position of legal adviser or works for an employee dealing with legal issues. In the absence of such people, the manager may contact a competent law firm. In addition, the activities of many private lawyers provide for the provision of legal services to legal entities . It is important to choose an experienced representative who understands the intricacies of legal proceedings in such cases.
Facts to prove
As mentioned above, there are three such facts. Their presence must be documented. For example, the fact of the dissemination of defamatory information in the media is verified directly by the publication itself. If this was an article in a newspaper, then a copy of the corresponding page is attached to the case file. If the information was published on the Internet, you need to take a screenshot of the site and print it.
It should be said that the dissemination is the communication of information to third parties. Therefore, if the information was received only by the legal entity and did not reach third parties, the subject of the dispute is missing.
Inconsistency and the depravity of information must also be confirmed. The plaintiff must provide a rebuttal, the accuracy of which will be assessed by the court. If necessary, experts may be involved.
According to general rules, the defendant does not have to prove anything. However, in such cases he will have to provide evidence of his innocence, legality and validity of his actions.
As practice shows, most of these cases are resolved in favor of the plaintiffs.
The specifics of the execution of the decision
The key goal of going to court is to get the defendant to publish a refutation of information that discredits the plaintiff’s reputation.
If the claim is satisfied, the operative part of the decision will contain the text of the refutation, the time period by which the defendant should publish it. In addition, the court may determine the period during which the information must be in the relevant media.
It must be said that the refutation is published in the same place where the discrediting information was located. For example, if an article was in the front page in a newspaper, then a refutation should be placed there. A similar rule applies to online media.
Conclusion
Questions about protecting the reputation of legal entities today are of particular relevance. Goodwill is regarded as a specific intangible asset. It can have a direct impact on the effectiveness of the organization.
A positive reputation helps to attract partners and customers, expand business, increase economic profit. In market conditions, consumers and contractors trust more those companies that have been able to establish themselves as successful and law-abiding participants in the turnover. A negative reputation negatively affects the status of the company. Intractable barriers may arise between a legal entity and potential partners and clients.
It is worth saying that even after the publication of the refutation of defamatory information, the organization will have to restore the client base for some time. Some contractors are of the opinion that without good reason no one will publish defamatory information. , .