Libel: measures of liability and punishment, judicial practice, sample statement of claim to court

The right of everyone to protect honor and good name is enshrined in the Constitution of the Russian Federation (Article 32), which indicates the high degree of its importance for the state.
Freedom of speech and mass information is accordingly limited by the prohibition of the dissemination of false information discrediting the honor and dignity of an individual.

Strengthened protection of individual rights to a good name by the state is expressed primarily in the establishment of criminal law protection against actions that discredit the honor and reputation of an individual.

Thus, today criminal liability is provided for libel (Article 128.1 of the Criminal Code of the Russian Federation).

It should be noted that there was a short period when libel did not fall under criminal liability: the Federal Law of December 7, 2011 amended the Criminal Code of the Russian Federation, according to which Articles 129 “Slander” and 130 “Insult” of the Criminal Code of the Russian Federation were repealed.

However, practice has shown that there is an objective need for criminal prosecution of acts that violate the honor and good name of an individual, so soon the Federal Law of July 28, 2012 introduced Article 128.1 “Slander” into the Criminal Code of the Russian Federation, which is still in effect. In addition, it should be noted that libel is one of the rare cases in law when it is possible to bring the violator to two types of liability - both criminal and civil. Civil liability is applied in the form of compensation for moral damage in favor of the victim. Let us consider in more detail these forms of liability for libel and the procedure for their implementation.

Criminal liability for libel

Criminal liability is the most severe form of all known types of legal liability, since it is established for acts with the highest degree of public danger.
No material compensation is provided to the victim within the framework of criminal liability, therefore, in the case of libel, the initiation of criminal cases and convictions are quite rare occurrences. Meanwhile, bringing slanderers to criminal liability will significantly increase the effectiveness of protecting the constitutional rights of an individual to honor and good name: such serious consequences as serving a criminal sentence or a criminal record are more than sufficient to deter and prevent similar acts in the future. The victim, offended by slander, will receive moral satisfaction from the knowledge that the criminal received what he deserved. Criminal prosecution is possible only if the full corpus delicti is proven, i.e. object, objective side, subject and subjective side of the crime. Therefore, it is necessary to dwell in more detail on the characteristics of the crime of “libel.”

The object of the crime of “slander” is the totality of social relations in the field of a person’s exercise of the right to dignity, honor and reputation. Thus, the benefits protected by Article 128.1 of the Criminal Code of the Russian Federation are:

Any individual is considered as a victim; legal entities cannot be victims in criminal law (unlike civil law protection - where legal entities can recover damage caused to business reputation).
The question remains open whether persons who have already died at the time of initiation of the case can be victims. It seems that in cases where slander discredits the good name or reputation of the deceased, members of his family may apply to initiate criminal proceedings. This is indirectly confirmed by Part 2 of Art. 318 of the Criminal Code of the Russian Federation, which allows private prosecution cases to be initiated at the request of close relatives of the deceased victim. Slander falls precisely into the category of private prosecution cases, since it is initiated only on the basis of a statement from the victim.

The objective side of slander consists of actions in the form of dissemination of information of a knowingly false nature, which discredits the honor and dignity of another person or undermines his reputation. Thus, the mere fact of disseminating knowingly false information does not constitute a criminal offense. Libel differs in its formal composition, i.e. a crime is considered committed when the defamatory information was actually disseminated, regardless of whether harm was caused to the victim.

In this regard, it is necessary to determine what is meant by the dissemination of defamatory information. In practice, the following actions are interpreted as dissemination of defamatory information:

Moreover, if such information was communicated to the person to whom it directly concerns, then this is not considered distribution, provided that all necessary confidentiality measures were taken during the communication.
Next, we will define what is meant by defamatory information; this is also a necessary element of the objective side of the crime. The official explanation of the term “defamatory information” is given in Resolution of the Plenum of the Armed Forces of the Russian Federation dated February 24, 2005 No. 3 “On judicial practice in cases of protecting the honor and dignity of citizens, as well as the business reputation of citizens and legal entities.” Despite the fact that this resolution is devoted to issues of civil protection from the dissemination of defamatory information, its provisions are also applied in the practice of bringing to criminal liability, because the objective side is the same.

So, according to the official interpretation of the Supreme Court of the Russian Federation, statements that derogate the honor and dignity of a citizen are recognized as defamatory information:

When qualifying slander, it is necessary to distinguish between information that contains direct statements about facts that can be verified for compliance with their reality, and judgments of an evaluative nature, which essentially boil down to the expression of a person’s subjective opinion.
A person’s statement of his own beliefs does not contain specifics, and therefore cannot be characterized as false or true, and therefore does not fall under the crime of “slander.” For example, well-known political figures are always the objects of public debate; many different opinions and critical remarks are expressed in their address, but this is considered not only not criminally punishable, but useful for a more responsible attitude towards them in the performance of their duties. Further, an important sign of the objective side of slander is the false nature of the defamatory information that was disseminated. That is, it has been proven that this information is not true, and in fact the facts and events reported never happened. If the disputed information is indicated in official documents, then its false nature can be established only by appealing the relevant document in the manner prescribed by law (for example, appealing a court decision or challenging an official’s decision).

Often, when qualifying acts in practice, the signs of the objective side of slander and deliberately false denunciation are confused (Article 306 of the Criminal Code of the Russian Federation), especially when slandering a person who has committed a serious or especially serious crime or a crime of a sexual nature. In such cases, it is necessary to find out what the intent of the criminal was aimed at: if the victim is brought to criminal responsibility, then this is a denunciation, and if he is humiliated, belittled by his honor and dignity, then this is already slander. Therefore, denunciation is most often expressed in a false report to law enforcement agencies about the commission of a crime.

Meanwhile, if the information reported by a citizen about a crime being prepared or committed is not confirmed, then this is not a basis for initiating a case of knowingly false denunciation. Article 306 of the Criminal Code of the Russian Federation applies only if there are facts convincingly indicating that the accusation of another with a crime was dictated solely by the intention to cause harm to that person.

The subjective side of slander (i.e., the attitude of the criminal to the crime) is expressed exclusively in the form of direct intent. It must be proven that the subject of the crime is aware of the false nature of the disseminated information and desires harmful consequences in the form of belittling the honor and dignity of another person. If the slanderer made a mistake in good faith, sincerely believing that the information he disseminated was reliable, he cannot be brought to criminal liability under Art. 128.1 of the Criminal Code of the Russian Federation.

Qualified elements of the crime of “libel”

Article 128.1 of the Criminal Code of the Russian Federation provides in part 1 for the general elements of slander (so-called simple slander), which is expressed in the dissemination of knowingly false information that discredits the honor and dignity of another person or undermines his reputation.
For this act, the minimum punishment is provided - a fine of up to 500 thousand rubles, or in the amount of earnings or other income of the convicted person for a period of up to six months, or compulsory work for a period of up to 160 hours.

The remaining four parts of Article 128.1 of the Criminal Code of the Russian Federation provide for qualified elements of slander, for which the punishment is more severe. In part 2 art. 128.1 of the Criminal Code of the Russian Federation provides for public libel, i.e. when knowingly false information is disseminated:

- in public speaking, i.e. in front of a group of at least 5-6 people (at a rally, demonstration, other meeting when information can be conveyed to an indefinite number of people),

- in a publicly displayed work (this includes leaflets, printed handouts, wall newspapers, written or printed messages, graphic images, etc., if they are posted in publicly accessible places - on notice boards, stands, walls of institutions open to the public ),

- through the media (in large-circulation newspapers, magazines, brochures, books, radio, television and the Internet). This source is perhaps the most dangerous, since it provides the opportunity to disseminate information in the shortest possible time among a huge audience, numbering in thousands and even millions.

Punishment under Part 2 of Art. 128.1 of the Criminal Code of the Russian Federation has been increased compared to the first part - a fine of up to 1 million rubles or in the amount of earnings or other income of the convicted person for a period of up to one year, or compulsory work for a period of up to 240 hours.

Part 3 Art. 128.1 of the Criminal Code of the Russian Federation specifically highlights slander using one’s official position. The increased public danger here is expressed in the fact that, taking into account the authority of the position held by the slanderer, the information he disseminates may have a much stronger resonance in society. Or the official position allows the slanderer to have free access to the media or other opportunities for publicly transmitting false information. This significantly aggravates the crime, so the penalties here are increased: a fine of up to 2 million rubles or in the amount of the wages or other income of the convicted person for a period of up to two years, or compulsory work for a period of up to 320 hours.

In part 4 art. 128.1 of the Criminal Code of the Russian Federation provides for qualified slander based on the content of the information disseminated - if information is disseminated about a person’s disease that is dangerous to others or about his commission of a crime of a sexual nature. The selection of such a composition is due to the particularly disgraceful nature of such accusations, which causes significant harm to the honor and dignity of a person. Punishment is established in the form of a fine of up to 3 million rubles or in the amount of wages or other income of the convicted person for a period of up to three years, or compulsory work for a period of up to 400 hours.

The most serious crime is defamation of a person committing a grave or especially grave crime. This composition is included in Part 5 of Art. 128.1 of the Criminal Code of the Russian Federation. The highest limits of punishment are provided - a fine of up to 5 million rubles or in the amount of wages or other income of the convicted person for a period of up to three years, or compulsory work for a period of up to 480 hours. In this case, slander should be distinguished from a deliberately false denunciation: with slander, the intent of the criminal is aimed primarily at humiliating the honor and dignity of a person, and with denunciation, at initiating a criminal case against the victim.

Deliberately false denunciation of the Code of Administrative Offenses of the Russian Federation

This type of criminal act in some cases may also provide for administrative punishment. Regulates issues related to false denunciation of the Code of Administrative Offenses of the Russian Federation in Article 17.9. According to the paragraphs of this article, punishment can be applied in the event of knowingly giving false testimony by witnesses, specialists, and experts. Sometimes this may involve providing a deliberately false translation. Such an act entails a fine of 1,000 - 1,500 rubles.

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Judicial practice in cases of bringing to criminal liability for libel

The accumulated experience in applying Article 128.1 of the Criminal Code of the Russian Federation is not so rich, but nevertheless, a number of illustrative cases can be cited that, using specific examples, allow us to understand the intricacies of qualifying slander.
For example, in Korolev, a criminal case was considered based on a statement from a local resident that false information of a disgraceful nature had been posted about him on the Internet. On dating sites, pages were created with his photographs, where information about homosexuality and his intention to make corresponding acquaintances with men was indicated. There was a long correspondence on his behalf online with obscene statements and proposals. The court found the information distributor guilty under Art. 128.1 of the Criminal Code of the Russian Federation, parts 2.

As practice shows, libel cases are very often brought against journalists and other media workers. Thus, a guilty verdict was passed against a correspondent of a politically oriented newspaper under Art. 128.1 of the Criminal Code of the Russian Federation for disseminating knowingly false information that discredited the honor and dignity of other persons.

However, the Supreme Court of the Russian Federation overturned the verdict, indicating that criminal liability can be brought for libel only if the accused knew about the false nature of the defamatory information and wanted to disseminate it in society. In the case under consideration, the journalist conducted her own investigation using professional powers and presented the information obtained in her article. In court, the journalist did not admit that the published information was deliberately false; she explained that she learned the information from personal conversations with local residents. Thus, the information disseminated by the journalist was not perceived by her as false, and therefore there is no corpus delicti of libel in this case. There was an honest misconception regarding the accuracy of the published information.

In another case, the journalist was also acquitted, but the trial reached the Supreme Court of the Russian Federation. The journalist was charged with deliberately disseminating in the newspaper an accusation against two former businessmen of committing a serious crime - embezzlement and embezzlement of a large sum of money. The Supreme Court ruled that the case materials testify to the journalist's conscientious misconception regarding the truth of the information he published. At the time of the interview, the citizens interviewed had no doubt that they were providing reliable information to the journalist, and no circumstances were identified that would allow one to doubt the authenticity of the information received. In this regard, there is no confirmation of the correspondent’s intent to disseminate knowingly false information, which precludes the application of Art. 128.1 of the Criminal Code of the Russian Federation.

The biggest difficulty in qualifying slander is the issue of establishing the deliberately false nature of the information disseminated. For example, the court refused to convict under Art. 128.1 of the Criminal Code of the Russian Federation in connection with the accusation of a police officer of slanderous stories to colleagues that another officer shot at his window at night. It was confirmed in court that in his stories to his colleagues, the accused only made assumptions about who it could be. The knowingly false nature of the information was not proven.

In another case, the court recognized that both information invented by the distributor himself and rumors retold by him can be deliberately false. In particular, she was accused of libel under Art. 128.1 of the Criminal Code of the Russian Federation, a citizen who reported to the head of her department that her work colleague was found in her office in an intimate setting with a man. The accused referred to the fact that she had no intention of disseminating deliberately false information, but only wanted to verify the rumors, and therefore asked the boss to maintain confidentiality. However, the court considered that the accused, having learned inaccurate, dubious information, conjectured it, deliberately distorted it and disseminated completely specific, deliberately false defamatory information about the victim.

Insult and slander on the Internet and social networks

In the era of the Internet, how often one can see offensive expressions and comments on the Internet, on social networks, when users express their opinions and insult others whose opinions do not coincide with theirs.

Is it possible to be held accountable for insults on the Internet, on social networks? It's quite difficult. It is necessary to establish that the insult was committed by a specific person, that it was this person who wrote nasty things on the Internet, etc. If it is not reliably established that a particular user wrote offensive words, then prosecution for him will be unlikely.

IMPORTANT : it is also worth remembering that sometimes pages are created under fictitious names, other people's photos are used, and duplicate pages are created.

Civil liability for libel

If the victim is not satisfied with the prosecution of the slanderer, he has the right to receive monetary compensation from him for the harm caused.
Such collection is carried out in civil proceedings: either a separate claim is filed to recover monetary compensation for defamation, or, as part of criminal proceedings, a civil claim can be filed by the victim. In the latter case, the court, when sentencing the accused, immediately resolves the issue of the amount of compensation paid to the victim, which can significantly save time on litigation. It should be borne in mind that civil protection against libel does not depend on bringing the perpetrator to criminal liability. The Supreme Court of the Russian Federation has repeatedly noted that even if the initiation of a criminal case was refused or the case was dismissed for lack of corpus delicti, this does not deprive the victim of the right to file a civil claim for the protection of honor and dignity against the offender.

This is due to the fact that the Criminal Code and the Civil Code of the Russian Federation define offenses in the form of dissemination of defamatory information differently, so civil liability may arise even if the offender’s guilt was not established in criminal proceedings.

A citizen can be a plaintiff at any age; parents, adoptive parents or guardians act as representatives in court for minors and incompetents.
The honor and dignity of deceased citizens are also subject to civil protection at the suit of interested parties (primarily close relatives). Defendants in cases of protection of honor and dignity will be persons who disseminated false information of a defamatory nature, incl. Of course, the authors of this information. So, for example, if information derogatory to honor and dignity was published in the media, then the defendants will be the author of the article or video (journalist) and the editors of the corresponding magazine, newspaper, TV channel, etc.

In cases where defamatory information was published without indicating the author, only the editors are named as the defendant. An editorial office is a legal or physical entity that is directly involved in the production and release of a specific media outlet. If the editorial office does not have the status of a legal entity, then the founder of this mass media is brought in as a defendant.

In cases where defamatory information was disseminated by several persons, the plaintiff may, at his discretion, bring a claim against all violators or against one. The court may subsequently involve other co-defendants if, according to the law, it is impossible to consider the case without their participation (for example, persons who jointly caused harm are jointly and severally liable under the law, therefore all accomplices must be involved in the case).

If defamatory information was disseminated by an employee of an organization as part of his professional activities, acting on behalf of the organization, then the defendant according to the Civil Code of the Russian Federation will be the legal entity-employer, since it is responsible for the actions of its employees as if they were their own. Often in this category of cases, employees are called upon by the court to participate in the case as third parties, since in the event of collection of funds from the organization, it will collect them in recourse from the employee.

There are also situations when it is not possible to establish who exactly disseminated defamatory information (on the Internet, for example, or through anonymous letters). In this case, judicial protection of honor and dignity is still possible - through a statement declaring the disseminated information untrue. The application is considered by the court without a defendant, in a special proceeding; as a result, the fact of dissemination of information about the applicant of a knowingly false nature is established.

What needs to be proven in a defamation case? When filing such a claim in court, you will need to provide evidence confirming:

All three circumstances must be proven in court, otherwise the claim will be denied.
How are the terms “dissemination of information”, “defamatory nature of information” and “inconsistency with reality” understood in practice? Information about a citizen is considered disseminated if the information was published in the media (printed publications, radio, television, etc.), posted for public access on the Internet, set forth in job descriptions, public speeches, official appeals or statements officials. Information is considered disseminated if it was communicated to at least one person both orally and in writing. If information was communicated in confidential form to a person to whom it is directly related, this is not considered distribution.

The defamatory nature of information is recognized if it contains statements about a citizen committing an immoral act, immoral behavior in personal or public life, dishonest business conduct, violation of the principles of business ethics in economic activity, if they harm the honor, dignity of a citizen or his business reputation.

Information is considered deliberately false if the facts and events that are mentioned in it did not actually occur at the time of its dissemination. If the source of such information is official law enforcement acts (court decisions and sentences, decisions of investigative bodies, etc.), then such information cannot be considered untrue until these acts are canceled in accordance with the procedure established by law. For example, the wording of the dismissal order “due to appearing at work while intoxicated” does not contain false slanderous information; the dismissal order must be challenged under labor law.

It should also be taken into account that we all have a constitutional right to appeal to state and municipal bodies. Therefore, if a citizen applies, for example, to the police with a statement about a crime that, in his opinion, is being prepared or has already been committed, then police officers are obliged to check the information received. If, as a result of the inspection, the information is not confirmed, then this is not a basis for collecting compensation from such a citizen for violation of honor and dignity. This is permissible only if it is proven that the defendant contacted law enforcement authorities only with the intention of harming another person, without being guided by any other valid motives.

What to do if you are charged with insult or slander?

If you are being persecuted and, on the contrary, you are accused of disseminating false, slanderous or offensive information, then you definitely need qualified defense of a lawyer who has been dealing with this issue for several days:

• the lawyer will hold a meeting and consultation with you to explain all your rights and responsibilities in the office of the law office, and if it is impossible to ensure your appearance, he will travel to a place convenient for the meeting;
• will analyze your situation
• get acquainted with the inspection materials regarding you. As part of providing you with legal assistance, the lawyer will achieve a comprehensive, complete and objective consideration of your case.
• will prove the absence of the very fact of distributing or uttering slanderous or offensive expressions, will prove the absence of intention on your part to humiliate the honor and dignity of the victim.

THE LAWYER EXPLAINS: since within the framework of administrative prosecution (insult), a negative assessment of a person must be expressed exclusively in an indecent, that is, in an openly cynical, contrary to universal human moral requirements and accepted manner of communication between people, form and is a necessary condition for this administrative offense. The fact will be subject to proof that the statements, if they occurred, have a certain semantic meaning in explanatory dictionaries of the Russian language, are literary acceptable, and their use in colloquial speech cannot in itself be recognized as use in an indecent form.

USEFUL: watch the video and read how to prove your innocence on our website

What can be demanded in court within the framework of civil protection of honor and dignity from slander?

Firstly, a citizen who has suffered from slander has the right to demand in court a refutation of information discrediting his honor, dignity or business reputation.
A preliminary appeal to the defendant with a claim to eliminate violations of the plaintiff’s rights in such cases is not required, i.e. You can immediately go to court.

Or you can officially contact the editorial office of the media with a demand to publish a refutation of previously published information, and if they refuse, then appeal this refusal in court. The period for appealing such a refusal is one year.

According to current legislation, citizens and organizations have the right to publish their response in the same media if information has been published that violates their rights and legitimate interests. If, at the time of the court’s decision, the media outlet that disseminated the defamatory information is no longer published, the court may oblige the defendant to publish a refutation in another active media outlet.

If a claim for refutation of defamatory information is satisfied, the court must indicate in the decision in what manner and within what time frame the refutation must be made, provide, if possible, the text of the refutation and determine which information is untrue, is slanderous, when and how it was common.

Secondly, a citizen whose honor, dignity and business reputation were violated by the publication of disgraceful information has the right to demand compensation for moral damage from the defendant. Moral damage caused is compensated exclusively in monetary form and is paid only to the plaintiff. The amount of compensation is initially stated by the plaintiff in his application, guided by the degree of moral suffering caused to him by the defendant.

The court, when making a decision, determines the final amount of compensation for moral damage, based on an objective assessment of the content of the disseminated information, its nature, the extent of its dissemination in society and the harm caused to the plaintiff. If, for example, the editors voluntarily published a refutation of defamatory information, this is taken into account by the court and is the basis for reducing the amount of compensation.

In 99 percent of cases, the court reduces the amount of compensation for moral damage claimed by the plaintiff, therefore, in practice, moral damage is claimed to be recovered in the maximum possible amount. This does not affect the amount of the state duty, since it is paid in a fixed amount as for claims of a non-property nature - for individuals today it is 300 rubles.

Thirdly, a citizen who has been publicly defamed by slander has the right to demand in court compensation for the losses caused to him. Of course, it will be necessary to prove the existence of such losses, the causal connection between the defendant’s unlawful actions and the occurrence of losses and their magnitude. Civil legislation provides for two types of damages - actual damage (i.e., what the citizen actually lost as a result of harm) and lost profits (income that the citizen would have received in the normal course of business if the harm had not been caused). For example, as a result of the dissemination of defamatory information, a citizen lost a significant part of his regular customers and, accordingly, did not receive the income that he received under normal conditions of his business activity.

Thus, three acceptable ways to protect honor, dignity and business reputation violated by slander are a forced refutation of defamatory information in the media, compensation for moral damage and damages. The law does not provide for such a method of protection as an apology to the plaintiff, therefore the court does not have the right to oblige the defendant to apologize. However, if the parties in court have come to reconciliation and entered into a settlement agreement, then it is possible, by mutual agreement, to include the defendant’s obligation to apologize to the plaintiff.