Date of publication: 20 December 2017
Irina Kirichenko, Patent Attorney of Ukraine
Defamation, insult, fake — in our fast-paced virtual time a defamation message (false information about a person aimed to defame), posted on the Internet, disseminates within the information field as a viral infection during the ARVI epidemic. The society has weak immunity from the ‘sensational’ news, the reliability of which cannot be verified, and the effective ‘vaccine’ against the defamation has not yet been invented.
A major barrier to throwing any gossips undermining the business reputation of an individual or legal entity into the media can be the criminalization of responsibility for defamation and insult. However, the ‘draconian’ laws of January 16, 2014, which provided for more severe responsibility for defamation, were not adopted by the Verkhovna Rada of Ukraine, and later on the Article 277 (3) of the Civil Code of Ukraine (hereinafter – the CC), providing for the so-called presumption of unreliability of adverse information about a person, was repealed. The verity of such information had to be proved by the author of the defamation material, who, together with the information disseminator, appeared as a defendant in court disputes on rebutting false information, if the person concerned with such information filed a relevant suit.
However, even before the repeal of the Article 277 (3) of the CC, the plaintiff in a defamation dispute had no other choice but to take over the burden of proof of the unreliability of information that has damaged his or her business reputation, since our legislation did not provide for the criteria to determine the adverse orientation of the statement (especially of ‘revealing’ nature).
At the moment the unreliability of negative information defaming the honor and undermining the business reputation of an individual or legal entity is not presumed. That is, the rehabilitation – proving of his human decency – is a personal business of the defamation material victim.
As before, the latter may file a claim for the protection of honor, dignity, business reputation and, possibly, compensation for moral damages, however, as the case-law shows, even offensive remarks and unfounded allegations of such crimes as fraud are not generally recognized nowadays by the courts as information which defames and contradicts the reality.
Therefore, by adopting a decision of February 28, 2017 to refuse satisfaction of a claim for the protection of honor, dignity, business reputation and compensation of moral damages, the Shevchenkivskyi District Court of Kyiv “… considers that the information published by the defendants regarding the receipt of a charitable grant, the adoption of the decision by the Economic Court of Kyiv, and the existence of an enforcement order are the actual statement, however, the plaintiff has not provided evidence of its unreliability, and the other information is a value judgment and, therefore, taking into account paragraph 19 of the Resolution of Plenum of the Supreme Court of Ukraine No. 1 of February 27, 2009 on Judicial Practice in Cases Concerning the Protection of Dignity and Honor of an Individual, as well as the Business Reputation of Individual and Legal Entity, and Article 30 (1) and (2) of the Law of Ukraine on Information, the claims are not subject to satisfaction”.
From the cited quotation of the motivational part of the decision one can conclude that now each of us, in case of public accusation of committing an unlawful act or of non-traditional preferences, shall first prove his or her ‘pureness’, and only then apply to court for the protection of honor and dignity.
THEORY VS PRACTICE
The category of disputes related to the protection of business reputation of a legal entity, and the honor and dignity of individuals is the most common among disputes arising from information and competitive relations. One of the most interesting subcategories are the disputes for rebutting false information as well as for protection against unfair competition.
The essence of the key terms, without due understanding of which it is impossible to effectively protect the basic non-property rights of a person, is explained by the Plenum of the Supreme Court of Ukraine (hereinafter – the SCU) in paragraph 4 of the Resolution No. 1 of February 27, 2009 on Judicial Practice in Cases Concerning the Protection of Dignity and Honor of an Individual, as well as the Business Reputation of Individual and Legal Entity.
Thus, in particular, the dignity should be understood as recognition of the value of each individual as a unique biopsychosocial value. The honor is associated with a positive social assessment of the person in the eyes of others, which is based on the conformity of his or her actions (behavior) with the generally accepted notions of the good and the bad. The business reputation of an individual means the social assessment of person’s business and professional qualities when performing labor, official, public or other duties.
The business reputation of a legal entity, including business associations, sole proprietors, attorneys, notaries and other persons, is understood as the assessment of their entrepreneurial, public, professional or other activities performed by such person as a participant in public relations.
The claims for protection of dignity, honor or business reputation may be filed by an individual in case of dissemination of false information, violating his or her personal non-proprietary rights, as well as by other interested persons (in particular, family members and relatives) if such information directly or indirectly violates their personal non-property rights (paragraph 6 of the SCU Plenum Resolution).
When deciding on the recognition of the disseminated information as false, the courts shall determine the nature of such information and find out whether it is an actual statement or the value judgment (paragraph 19 of the SCU Plenum Resolution No. 1 of February 27, 2009).
Pursuant to Article 30(2) of the Law of Ukraine on Information, the value judgment, except for the defamation, means the statements that do not contain any actual data, criticism, evaluation of actions, as well as the statements that can not be construed as containing actual data, in particular in view of the nature of use of linguistic and stylistic means (use of hyperbole, allegory and satire). The value judgments are not subject to rebutting and proof of their verity.
Therefore, pursuant to Article 277 of the CC, the judicial protection does not cover the value judgments, opinions, beliefs, critical assessment of certain facts and disadvantages, which, being the expression of subjective opinion and views of the defendant, can not be verified as to their correspondence to the reality (in contrast to verifying the verity of facts) and rebutted, which is consistent with the case-law of the European Court of Human Rights when interpreting the provisions of Article 10 of the Convention (paragraph 19 of the SCU Plenum Resolution No. 1 of February 27, 2009). The rebuttal of false information is carried out by the person who disseminated the information (Article 277 (4) of the CC of Ukraine) in the same way as it was disseminated (Article 277 (7) of the CC of Ukraine).
Paragraph 3 of the SCU Plenum Resolution No. 7 of September 28, 1990 on Application by the Courts of Legislation Governing the Protection of Honor, Dignity and Business Reputation of Citizens and Organizations provides that the dissemination of information should be understood as publication of such information in the press, its radio or television broadcasting, publication with the use of other media, presenting in references, statements and letters addressed to other persons, announcement in public speeches, as well as by other forms to an indefinite number of persons or at least one person. The defaming information includes the information that degrade the honor and dignity of a citizen or organization in the public opinion or the opinion of individual citizens in terms of observance of laws, generally accepted rules of cohabitation and principles of human morality.
According to the case-law of Kyiv city district courts, the plaintiffs are not able to prove the circumstances referred to by them as the grounds for their claims. And the information about the plaintiffs, disclosed by the defendants, is the value judgment, therefore, taking into account paragraph 19 of the SCU Plenum Resolution No. 1 of February 27, 2009 and Article 30(2) of the Law of Ukraine on Information, the claims are not subject to satisfaction. Pursuant to Article 47(1) and (2) of the Law of Ukraine on Information no one can be held liable for the expression of value judgments. The corresponding legal position is given in the judgment of the European Court of Human Rights in the case of Lingens (12/1984/84/131); paragraph 41 thereof states that the freedom of expression, as secured in paragraph 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its development and for each individual’s self-fulfilment; subject to paragraph 10(2) thereof, it is applicable not only to ‘information’ or ‘ideas’ that are duly received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness, without which there is no democratic society.
However, by putting the European Community rules into the rank of the ideal and using them as the main tool of political rhetoric, we remained virtually devoid of the effective legal ‘shield’ against the flow of information dirt that has captured a significant part of our media.
Interestingly, the former British Prime Minister D. Cameron in his days has publicly acknowledged the collapse of many ideals of democracy: “The question arises: if the lack of democracy is a problem, why are there so many extremists in free and open societies?”
REBUTTING AS A MEANS OF ESTABLISHING THE NECESSARY FACTS
As it was previously reported in the APTEKA Weekly Newspaper , the owner and developer of the Carbowhite® brand – the OmniFarma Kyiv Ltd. – has initiated a number of cases that are being considered by the competent authorities of Ukraine to counteract the illicit circulation of falsified products and prevent the unfair competition. These cases are aimed at stopping the distribution of goods, the package labeling of which copies the design of the original sorbent, which is a medicinal product (the name and labeling of which are registered as the trademarks, and the trade name has acquired the status of a well-known trademark), and misleads the consumers in terms of the source of origin of the goods.
Despite the obvious use of the aforementioned trademark in the name of the ‘twin’, in cases concerning the termination of its imitation the relevant forensic examinations were commissioned to establish the similarity of the sorbents’ names and their packaging.
However, on September 7, 2017 from the Unified State Register of Court Judgments the trademark owner has found that on August 29, 2017 the Hlukhiv district court of Sumy region delivered a judgment in a case concerning the protection of honor, dignity, business reputation and rebutting of false information, satisfying the claim of Zdravofarm LLC against the local Nedelya Newspaper and the author of the material, which was in fact the retelling of the relevant articles published in the Apteka Weekly Newspaper. This judgment directly concerned the rights and obligations of the trademark owner, although it was not involved in the case. In particular, the court has decided as follows.
To recognize the content of the article “Attention: Sorbents. Countrymen, be Careful when Buying Sorbents!”, published on August 4, 2017 on page 6 of issue No. 31 of the regional Nedelya Newspaper, in the wording of the article’s author O.O. Saidov, namely, concerning:
- manufacture and sale of sorbent without its registration as a medicinal product under procedure established by law;
- falsification of a medicinal product by deliberate illegal manufacture, distribution, supply and sale;
illegal use of trademark;
- manufacture and sale of products that mislead the consumer regarding the medicinal product and its manufacturer;
- manufacture and sale of dietary supplements of inadequate quality;
- engaging in unfair competition by deliberate illegal use of the trademark for its own goods, as false and harming the business reputation of Zdravofarm LLC.
At the same time, the court disregarded the objective data contained in the state registers, in particular, that OmniFarma Kyiv Ltd. has exclusive rights to use the trademarks, as well as to manufacture the aforementioned medicinal product – and the judgment in a case directly concerns its rights and responsibilities – hence, the trademark owner should have been involved in the case.
The trademark owner has filed an appeal against the delivered judgment, since if it had entered into force, the facts set forth in its motivational part would have a prejudicial value for cases on termination of unfair competition and prohibition of its use, initiated by the trademark owner.
Thus, without conducting proper research and application of special knowledge the Hlukhiv district court has found that: the product of Zdravofarm LLC is not a medicinal product but a biologically active additive, qualified as a food product and not requiring registration as a medicinal product in accordance with the legislation in force; the sorbents’ packaging appearances and their names significantly differ, since they have different phonetics, semantics and general visual impression of the very trademark and design of their packages, which does not lead to the confusion of goods and their manufacturers by consumers, that is, they have the distinctiveness in the meaning of Article 492 of the CC of Ukraine.
At the same time, in the challenged decision the court has clearly distinguished between the notions of facts and value judgment, indicating the following: “having analyzed the information provided in the article concerning the plaintiff, as well as the nature of the linguistic means used in presentation thereof, the court concludes that, in general, this information has been presented in a form of actual allegations (data) and may not qualify as value judgments in view of speech patterns used in the article, which have explicitly and clearly indicated certain events and phenomena”.
However, when deciding whether or not the product of Zdravofarm LLC is a falsified medicinal product, whether or not it is a medicinal product at all, and whether or not its labeling imitates the original sorbent, the court did not commissioned an expert study, for example, in the public scientific research laboratory for quality control of medicinal products (or other competent institution). In this case, the court does not possess special knowledge on the above issues.
According to Article 1 of the Law of Ukraine on Forensic Examination, the forensic examination means a study of material objects, phenomena and processes, containing information about circumstances of a case pursued by pre-trial investigation bodies or court, by an expert on the basis of the special knowledge. Consequently, the issue of similarity of conflict designations falls within the competence of experts certified in such fields of practice as 13.4 “Examinations related to the protection of rights to industrial designs” and 13.6 “Examinations related to commercial (branded) denominations, trademarks (marks for goods and services) and geographic indications”.
The issues of practice of the forensic examination commissioning and the use of their findings in criminal and civil proceedings are reflected in the SCU Plenum Resolution No. 8 of May 30, 1997 on Forensic Examination in Criminal and Civil Cases.
Thus, to eliminate the shortcomings and clarify the issues arising in the judicial practice when commissioning and conducting the examinations, the SCU Plenum has resolved as follows:
“The courts shall have regard to the fact that when considering cases they are not entitled to make decisions without an expert examination, if the commissioning of the latter is obligatory under the law. The failure to conduct such an examination shall be the basis for return of the case for further investigation”.
The key principle, serving as a basis for international law and world practice, is the inadmissibility of confusion of a sign (designation) and, thereby, misleading the consumers. This principle of inadmissibility of confusion is common to all countries and is of key importance in determining the dangers of misleading the consumer as to the actual manufacturer of the product.
Thus, buying a product under the Carbowhite-Zdravofarm designation, the consumers are mislead since they think that in reality they buy a medicinal product manufactured by OmniFarma Kyiv LLC.
In addition, according to definition laid down in Article 1(27) of the Law of Ukraine on Protection of Consumer Rights, in a general sense the above-mentioned product is falsified. The falsified products are the products manufactured in violation of manufacturing process, by illegal use of the trademark or copying of the form, packaging, external design, as well as illegal reproduction of the goods of another person. In this case it is a falsification of information, namely, a consumer fraud with inaccurate or distorted information about the product.
This kind of falsification is performed by providing inaccurate information in the documents accompanying the goods, on the labeling and in advertising. In most cases, any kind of falsification is supplemented by the falsified information about the product. Otherwise, the falsification is easily detected.
Having carefully considered the arguments of the appellant, being the brand owner, and having heard his representative at the court hearing, on October 17, 2017 the Court of Appeal of Sumy region has repealed the decision that should have legalized the distribution of the ‘cloned’ product.
However, all is fair to get the competitive advantages: “…at long last I came to the conclusion that it was somewhat related to the road traffic regulations. The good is compliance and the evil is violation thereof, however, not any violation but a glamorous one. Kind of overtaking on the oncoming lane with the special lights turned on. It is how the evil with a capital “E” differs from the squalor” (V. Pelevin “Pineapple Water for the Fair Lady”).