Russia Media Law Guide

RUSSIA MEDIA LAW GUIDE

Defamation and Privacy Law in Russia

Contributors: Maria Ostashenko (Partner) and Ilya Khodakov (Associate), Alrud Law Firm

Russian remedies against defamation are based on both criminal and civil laws.

The key regulations with regard to privacy and defamation are the following:

• Constitution of the Russian Federation (Art. 23 – the right to protect honour and good name)
• Civil Code of the Russian Federation (Art. 152 – protection against dissemination of false and discrediting information about an individual or legal entity, Art 152.2 – the right to protect personal image)
• Criminal Code of the Russian Federation (Art. 128.1 – criminal liability for slander; Art. 137 -criminal liability for invasion in privacy; Art. 297, Art. 298.1, Art. 319. – criminal liability for slander of public officials)
• Code of Administrative Offences of the Russian Federation (Art. 13.11 – liability for violations of data protection legislation)
• Federal Law dated July 27, 2006 No. 152-FZ “On Personal Data” (“Personal Data Law”) (the principal law in the area of privacy)
• Federal Law dated July 27, 2006 No. 149-FZ “On Information, Information Technologies and Protection of Information” (“Law on Information”) (liability for dissemination of illegal information, including blocking injunction for dissemination of defamatory information and fines up to 500,000 RUB (app. 6,900 EUR) for dissemination of so-called fake news).

It is also worth mentioning that decisions of the Constitutional Court, of the Supreme Court of the Russian Federation and of the European Court of Human Right are important for both criminal and civil regulations regarding defamation.

One of the most significant case law in the area of defamation and privacy is the Resolution of the Plenum of the Supreme Court of Russia dd. 24.02.2005 No. 3. Among other things, this Resolution establishes that a person who suffered from dissemination of the false and defamatory information is entitled to file criminal and civil cases simultaneously.

Criminal liability applies only to individuals (not legal entities). However, certain officials of the company that disseminated defamatory information can be brought to criminal liability, if their fault in the dissemination of the false and defamatory information is proved.

Procedural Issues in Defamation Cases

Limitation period

As a rule, the limitation period does not apply to the protection of intangible assets (honour, dignity, reputation). In this regard, the period for filing a defamation civil lawsuit claiming moral damages is not limited. However, there is a one-year limitation period for claims based on the dissemination of false information (of any kind, not defamatory) in the mass media.

As for the criminal law, a person is released from criminal liability for libel or illegal invasion to privacy if two years period has expired.

The constitutive elements of defamation

In order to build a civil case, the following elements must be shown:

• Dissemination of information about a person

This means that the information in question should be communicated in any form to at least one person, aside from a claimant. For example, information can be published on the Internet or in the mass media, or included in job reviews, public speech, statements addressed to officers.

Moreover, in practice, it is necessary to show that information in question is the statement of fact in which a person alleges information as objective fact of reality, without any subjective evaluation of such fact.

According to Russian procedural law, if the case requires special knowledge, the court has to appoint an expert. In case of claims for defamation, Russian courts frequently appoint linguistic expertise to assess whether expression of opinion took place rather than a statement of fact.

• The disseminated information must be discrediting

According to the position of the Supreme Court of Russia, discrediting information is information that contains statements about the claimant and his actions impairing his/her honour, dignity or reputation (such as violation of law; non-ethical or abusive behaviour; social and political life; unfair practices conducted in entrepreneurial or business activities; or breach of business ethics or business practices).

• Information must be inaccurate

Inaccuracy of the distributed information is presumed. The burden of proof is on the defendant to prove the contrary in a court.

Burden of proof

Russian law establishes a reverse burden of proof for defamation cases. This means that the claimant should prove the following facts:

• Dissemination of information about a person in the form of the statement of fact
• The fact that the distributed information is discrediting.

Once these points have been established, it is for the defendant is obliged to prove that published information is accurate.

Defences

The principal defence is to prove that the published information is accurate.

Russian procedural legislation and court practice requires providing very straightforward evidence (e.g. official documents), that would prove the accuracy of the statement.

An alternative defence is to prove that the information is a statement of opinion. In practice, the main sign of an opinion (not statement of fact) is the usage of special modal words such as “in my opinion”, “I think”, “possibly”, “highly likely” and so on.
Moreover, the information contained in the appeals to the competent authorities for protection of rights is exempted from the application of Art. 152 of the Civil Code. In practice, this means that the relevant information can be sourced in documents such as reports of a crime, complaints, applications, appeals, which are submitted to the competent authorities in order to protect the rights and legitimate interests.

No jury

Neither defamation nor privacy trials involve a jury. Generally, such cases are heard by a single judge of the general jurisdiction (in the case of a dispute between individuals) or the commercial court (in the case of a dispute between legal entities/ individual entrepreneurs).

Remedies for Defamation

According to the Russian law, the following remedies can be applied in defamation disputes:

• Take down of the defamatory information

In practice, take down means that only specific sentences are removed, while the remaining text is still available. This is, however, a positive outcome, since without defamatory sentences, the text loses its internal connections and it is hardly possible to understand the author’s idea.

In the meantime, courts usually do not satisfy the claims requesting to fully delete an article, because in order to obtain this remedy, it is necessary to prove that every single sentence discredits the claimant.

• The right to publish a rebuttal

The court may also order, that the claimant’s text with counter arguments is published in the same paper / website.

• Monetary compensation: payment of damages

As a rule, damages awarded by the Russian courts as a compensation for defamation are fairly low.

Russian judges are reluctant to award high compensation for moral harm not only in defamation claims, but also in general, seemingly considering moral distress not to be significant. Therefore, the average amount of compensation for moral harm is rarely more than a sum in the region of EUR 2,000-3,000.

In the meantime, there are certain cases where companies are awarded significant amount of damages in defamation cases. A striking example here is Alfa Bank V Kommersant case.

In 2004, Kommersant, a respected media in Russia, published the article named “Banking crisis went out. Systemic banks have faced customers”. In this article, Kommersant compared the financial condition of Alfa Bank with that of bankrupt Guta Bank, and described – colourfully – the numerous queues of Alfa Bank depositors unsuccessfully trying to withdraw their deposits. This publication caused a real panic among Alfa Bank depositors who hastened to pick up their deposits, which ultimately ended in significant damages for Alfa Bank. Alfa Bank filed a claim under the Art. 152 of the Russian Civil Code against Kommersant, and won in the Russian courts.

The courts of first and appeal instances recovered damages in amount of 300 million rubles (approx. EUR 8,500,000 based on the exchange rates of 2004), which is a huge amount for Russian court practice. However, the court of cassation appeal eventually reduced this amount “taking into account the requirements of reasonableness and justice” to 30 million rubles (approx. EUR 850,000 based on the exchange rates of 2004). This is still a significant amount for Russian cases.

Website takedown

Apart from remedies available at trial, the last amendments to Russian law and recent court practice show that some alternative remedies can be used in enforcement proceedings. More specifically, access to a website with defamatory information can be blocked on the basis of a request to data protection authority (Roskomnadzor), which is to be made at the stage where the successful party enforces the decision of the court given in defamation proceedings.

Related Data Protection Regulations

In addition to the remedies under Russian civil and criminal laws related to protection of reputation, individuals are entitled to protect their rights by tools provided by data protection regulations.

Key data subjects’ rights

The Personal Data Law sets out certain data subject’s rights, which may be considered when it comes to protection of reputation.

• Right to withdraw the consent for processing. An individual has a right to revoke consent for personal data processing at any time. After receipt of such a request, data controller whose processing activities are based on consent shall stop processing and destroy the personal data (or ensure their destruction) within 30 days.
• Right to access personal data. A data subject is entitled to request from the data controller the confirmation of processing by that data controller and a range of details regarding data processing activities (e.g., categories of data processed, purposes of processing, et.). If the data subject requests, he/she should be provided with the copy of personal data.
• Right to require rectification, blocking and destroy of personal data in case personal data is incomplete, inaccurate, outdated, unlawfully processed or no longer needed to achieve the specific purpose of data processing.
• Right to lodge a complaint to Roskomnadzor, court or other authorities. According to Roskomnadzor’s statistics, the number of complaints submitted to Roskomnadzor has increased to 39,335 in 2018 against 2,607 in 2011.

Available remedies for misuse of personal data

If a data subject decides to lodge a complaint in order to protect his/her reputation, he/she may rely on several remedies prescribed by the Personal Data Law and the Law on Information, which are described below.

• Deletion of information and destruction of mediums. In case of unlawful processing of personal data, individual may request destruction of processed data both in information systems and on material means.
• Blockage of the web-resource (website, mobile app). When personal data is unlawfully processed online, data subject may claim for blockage of the respective resource. Such decision shall be made by the court. The respective resource may be included into special registers maintained by Roskomnadzor.
• Payment of damages for moral harm. Individuals are entitled to claim compensation of moral harm, which is caused by unlawful processing of their personal data. Such compensation may be received regardless of recovering material damages or losses. In practice, amount of the compensation is usually quite low, so this remedy does not allow to ensure proper protection of individuals’ reputation.
  Right to be forgotten

Under Russian Information Law, there is also a so-called “right to be forgotten”, which was introduced by the Federal Law dated July 13, 2015 No. 264-FZ (came into effect on January 1, 2016). This law provides individuals with opportunity to file a request to a search engine (Google, Yandex, etc.) on disabling access to the links with information about such individual.
The right can be exercised solely by individuals with respect to their personal data and other information relating to them. It may also be used in cases where it is necessary to execute the court decision on blockage of illegally distributed or placed information.

An individual has a right to send the request in one of the following scenarios:

• the information is disseminated in violation of Russian laws
• the information is false/inaccurate
• the information becomes unimportant/irrelevant for the individual due to subsequent events/actions of this individual

A search engine examines the request with clarifications and must respond within 10 days, either delisting the URLs complained of or refusing the request. An individual can appeal such refusal to the court in order to force the search engine to delist the relevant URLs.

Contributors: Maria Ostashenko (Partner) and Ilya Khodakov (Associate)

ALRUD Law Firm
Skakovaya str., 17, bld. 2, 6th fl.
Moscow
Russia, 125040

The material in this Guide is for general information only and does not constitute legal advice.