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Attorney, Partner, Member of Kyiv Bar Association, Jurvneshservice.
Mr. Salatiuk specializes in litigation in civil cases, including protection of reputation cases, commercial and administrative matters, tax planning, and agribusiness. He has worked with such clients as Rosendahl Nextrom Gmbh, Norbert Schaller GmbH (Austria), Equinox Global (UK), K&K Foods Association OÜ (Estonia), Mikheil Saakashvili, New World Grain Ukraine, Rubezhivska Farming Company (Ukraine) and others
Attorney’s Assistant, PhD in Private International Law, Jurvneshservice.
Mrs. Tsirat specializes in civil and commercial litigation, contract law,
and enforcement of foreign
judgments and arbitral awards.
She has worked with such clients as Ukrinterforwarding, Ukr-Kor Trade (Ukraine), Altum Air Inc. (USA)
Protecting the dignity and reputation (dignity protection) of individuals in Ukraine is based on the Civil Code of Ukraine (Articles 23, 270, 297), the European Convention on Human Rights (the Convention), and judgments rendered by the European Court of Human Rights (the ECHR) that are treated as a source of law and that are mandatory for Ukrainian courts (Article 17 of the Law of Ukraine On execution of judgments and application of practice of the European Court of Human Rights).
Protection of dignity is intrinsically connected with the right to respect for private life (Article 8 of the Convention) and the freedom of expression (Article 10 of the Convention). Still, “Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one’s own actions such as, for example, the commission of a criminal offence” (Axel Springer AG v. Germany, judgment of 7 February 2012, para. 83).
The issue of a person’s right to protection of dignity arises frequently when a person who plays a certain role in society (for example, a politician, official or big businessmen, so-called public figures) is verbally attacked, for example, in debates with his or her rivals or in the media by journalists or just ordinary people.
Such cases will be considered by courts of general jurisdiction.
A recent “cause celebre” in Ukraine was the range of cases where Mikheil Saakashvili was claimed to have slandered the reputation of other persons who were well-known politicians (Arsen Avakov, Minister of Internal Affairs; Roman Nasirov, former Head of State Fiscal Service of Ukraine; Andriy Ivanychuk, MP; Illia Kyva, a counselor of Minister of Internal Affairs; Serhiy Pashynsky, MP) and businessmen (Vitaliy Khomutynnik and Mykola Shurikov).
Judicial practice in Ukraine is generally in line with ECHR practice, and the following main points can be derived from this:
— public figures should be ready for much more criticism than ordinary people; as the ECHR noted “journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation” (Bladet Tromso and Stensaas v. Norway, judgment of 20 May 1999, para. 59); “the limits of permissible criticism are wider with regard to a government than in relation to a private citizen, or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of the press and public opinion. Furthermore, the dominant position which the government occupies makes it necessary for it to display restraint in resorting to libel proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media” (Dyuldin and Kislov v. Russia, judgment of 31 July 2007, para. 45);
— journalists are granted broad protection as they are pillars of democracy: “a fundamental requirement of the law of defamation is that in order to give rise to a cause of action the defamatory statement must refer to a particular person. If all state officials were allowed to sue in defamation in connection with any statement critical of administration of state affairs, even in situations where the official was not referred to by name or in an otherwise identifiable manner, journalists would be inundated with lawsuits. Not only would that result in an excessive and disproportionate burden being placed on the media, straining their resources and involving them in endless litigation, it would also inevitably have a chilling effect on the press in the performance of its task of purveyor of information and public watchdog” (Dyuldin and Kislov v. Russia, judgment of 31 July 2007, para. 43);
— persons shall not be liable for expressing value judgments (as, for example, “the basest opportunism”, “immoral”, “undignified”): “a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof” (Lingens v. Austria, judgment of 8 July 1986, para. 46);
— a person claiming his/her dignity was libeled shall prove that certain defamation directly intended to affect him/her in an adverse manner: “mere personal conjecture or subjective perception of a publication as defamatory does not suffice to establish that the person was directly affected by the publication. There must be something in the circumstances of a particular case to make the ordinary reader feel that the statement reflected directly on the individual claimant or that he was targeted by the criticism” (Dyuldin and Kislov v. Russia, judgment of 31 July 2007, para. 44). Namely, in this ECHR reasoning the connection between dignity (reputation) and private life is enshrined.
Legal Entities (companies)
A company’s reputation is a result of perception of its activities by surrounding agents: customers evaluate its goods and services; business partners evaluate contract discipline, turnover rules and treatment of mutual business, participation in social projects and charity activities, style of business conducting, fulfillment of laws, relationship with government entities and the media. Issues of protection of dignity and reputation may arise in situations of any kind of conflicts, be they of a legal or any other character, between two or more companies, involving defamation and false, misleading or uncertain information dissemination, they may take place in the process of unfair economic competition taking such forms as, for example, slanderous articles in social networks (Facebook, Twitter, Instagram, etc.) or newspaper articles; advertising through plots blackening another company; unlawful use of another company’s name, trade mark, products, advertising materials, etc. that may result, or has resulted in, a mix of activities of a company whose rights were infringed and of an infringer; instigation to boycott or discriminate against another company; collection, unlawful use or public disclosure of a company’s confidential information, etc.
Business reputation is protected both at international (Article 10 § 2 of the Convention) and national (the Civil Code of Ukraine, the Commercial Code of Ukraine, the Law of Ukraine On Protection Against Unfair Competition, the Law of Ukraine On Protection Of Economic Competition, the Law of Ukraine On Information) levels, though neither international documents nor Ukrainian law contain a legal definition of dignity and reputation as it pertains to the sphere of ethics and morals.
It is noteworthy that Ukrainian law connects unlawful use of someone’s reputation with straightforward infringement of the rights to one or several objects of intellectual property (trade name, mark, symbols, etc.) that are treated as constituents of business reputation. The Civil Code of Ukraine even considers the business reputation as one of the constituents of a franchise, which gives the franchisor the right to receive royalties for its usage. Due to that fact business reputation becomes a valuable intangible asset of the company.
In the event of a company’s reputation infringement (CRI), Ukrainian law provides administrative and judicial remedies, without obligation to use administrative remedies before judicial ones.
Administrative remedies include applying to the Antimonopoly Committee of Ukraine (the AMCU) within a period of 6 months from the day when a company revealed, or should have revealed, infringement of its rights. In case of dissatisfaction with the AMCU’s decision the company may apply to a court. Practice demonstrates that in most cases companies decide to apply immediately to a court, commercial one or of general jurisdiction (depending on the cause of action), “omitting” the AMCU stage.
The majority of CRI cases come under the jurisdiction of commercial courts as the majority of such cases involve issues of protection of economic competition, restriction of monopoly in commercial activities, and protection against unfair competition.
The judicial practice of Ukrainian courts (consisting of judgments of lower courts and judgments, information letters and resolutions of higher courts) suggests that to strive for victory in a CRI suit an offended company (the claimant) shall prove the following:
— information disseminated by a person who allegedly infringed a right to a good reputation of a company should be false or misleading; dissemination of true facts and information that does not pertain to confidential information may not be treated as CRI;
— value judgments, even if they contain some exuberant expressions (“a grifter”, “an unfair competitor who proposes low (dumping) prices”, “gross-out towards consumers”, “biased attitude”, “systematic criminal exploitation”, etc.), pure criticism, even made in a sharp and sarcastic manner, as opposed tofactual judgment may not be downplayed or refuted, so a person who expresses value judgments may not be liable for them before the claimant; and
— that it really suffered financial or non-financial loss due to that infringement.
Generally, protection of trade name is more effective under unfair competition legislation than under intellectual property laws. Anyway, the essence of the reputation of a company will determine a mode of proof to be used in court.