With the extensive use of online media, review feeds, and the development of online services, the protection of business reputation has become an increasingly relevant issue as shown by frequent cases of dissemination of false information about legal entities to hamper their competitiveness in the market.

Types of claims

Article 152 of the Russian Civil Code provides for protection of legal entity’s business reputation, including in court. To protect their business reputation in court, legal entities may file the following claims:

  1. Refutation of information discrediting business reputation;
  2. Publication of response in the same media that disseminated the discrediting information;
  3. Replacing or revoking the document issued by an organization if it contains discrediting information;
  4. Deletion of information, prohibition, and suppression of further dissemination of information, including by destroying information carrier;
  5. Compensation for damages caused by the dissemination of disparaging/defamatory information.

Protecting business reputation in court is nevertheless not such a straightforward matter as many who do so get their case rejected. Statistics for 2020 show that less than half the claims filed for protection of business reputation were satisfied.

Grounds for protection of business reputation

Item 7 of Plenum Ruling No. 3 dated February 24, 2005 On Judicial Practice in Cases of Protection of Honor and Dignity of Individuals, as well as the Business Reputation of Individuals and Legal Entities, and Item 21 of Russian Supreme Court Digest of Case Law No. 1 for 2017 set out the following grounds for protection of business:

1. Widespread false information

Dissemination of false information is commonly understood as the publication of discrediting information in the press, broadcast on radio and television, in other media, online, communication to at least one person, including orally.

The plaintiff must prove the dissemination of false information by the party against whom the claim is brought, so it is important to properly record how false information has been disseminated.

Article 75(8) of the Commercial Procedure Code of the Russian Federation sets out that “written evidence is submitted to the commercial court in the original or duly certified copy.”

To comply with this requirement, all evidence submitted to the court must be certified by a notary. This action will help record the resource on which false information is posted, how the information has been posted (audio, video, article, review, etc.), the details of the party that has posted information.

Non-notarized documents may be rejected by the court and excluded from the evidence supporting the decision made by the court, so this will negatively affect the outcome of the dispute.

2. Negative publicity

Most rejections in cases of protection of business reputation are due precisely to the difficulties in proving the negative nature of the information being disseminated. Moreover, this ground can also include the issue of distinguishing the disseminated information into statements of facts and opinion.

Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms provides for the freedom of expression. This means that everyone has the right to express their opinion, criticize others, while they are not obliged to prove that their opinion is true.

So, restricting and prohibiting the dissemination of information that is an opinion will be denied (Khabarovsk Territory Commercial Court Ruling dated July 29, 2021 Case No. A73-8170 / 2021, Stavropol Territory Commercial Court Ruling dated August 4, 2021 Case No. A63- 17170/2020, Irkutsk Oblast Commercial Court Ruling dated August 6,2021 Case No. A19-16525/2020).

It should be borne in mind before going to court that commercial courts resort to the help of experts, appointing a forensic inquiry to resolve disputes over the negative nature of the disseminated information and its classification as an opinion.

Given the importance of the conclusions in expert opinions for the outcome of disputes, it is imperative before filing claims with a court to decide on the expert institution, the expert that will be picked and prepare a petition for the appointment of a forensic inquiry.

3. Information discrediting business reputation is not true

Although the Commercial Procedure Code of the Russian Federation requires the person who disseminated discrediting information to prove that the disseminated information is true, it is extremely important for the plaintiff to prepare in advance all available evidence confirming the unreliability of the disseminated information before filing court claims.

So, for example, Sixth Commercial Court Ruling dated October 29, 2018 Case No. A73-8105/2018 states the court concludes that due to the lack of evidence provided by the plaintiff of the fulfillment of technical conditions, the information disseminated by the defendant about the failure to fulfill the contract is considered to be true.

4. Well-established reputation in any area of business dealings

A lack of evidence of business reputation is another ground for not satisfying claims in disputes for protection of business reputation (Seventeenth Appellate Commercial Court Ruling dated March 24, 2021 Case No. A60-7435 / 2020, Thirteenth Appellate Commercial Court dated November 22, 2021 Case No. A56 -46854/2020, Seventeenth Appellate Commercial Court Ruling dated July 29, 2021 Case No. А50-22839/2020).

The law unfortunately provides no list of ways to prove the existence of an established business reputation.

A review of case law shows that copies of diplomas and appreciation letters from state authorities, local authorities, organizations, information about a legal entity in various ratings can be provided as evidence of business reputation (Twentieth Appellate Commercial Court Ruling dated March 13, 2019 Case No. А54-4578/2017). If no appreciation letters are available, the number of contracts concluded, counterparties, employees and other information can be submitted to confirm that the legal entity has a good business reputation.

5. Adverse consequences arising from the dissemination of discrediting information, loss of reputation or decreased reputation

It is extremely difficult in practice to prove the loss of confidence in the plaintiff after and in connection with the dissemination of false information. Evidence differs in each specific case and requires detailed pre-trial study, because the satisfaction of claims for damages and the amount of such indemnification directly depend on the proof of the causal relationship between the dissemination of information and the damage caused (Article 1064 Russian Civil Code).

So, the issues of proof are of decisive importance upon examination of cases of protection of business reputation. Competent and comprehensive pre-trial study of a body of evidence, its proper execution and certification, and the correct statement of claims are extremely important for the successful consideration of disputes over business reputation.