Social networks are a huge phenomenon in today’s society, but they present many new risks. One of these risks is the potentially indiscriminate dissemination of targeted defamatory statements. Defamatory statements can spread through social networks very quickly and find their recipients faster and more efficiently than through traditional media (print, TV, etc.).
The aim of defamatory statements is to damage intangible assets that can be characterised as one’s good name and reputation. However, Act No. 89/2012 Coll., the Civil Code (hereinafter “Civil Code”) does not recognise these terms, although they can be classified under the protection of an individual’s personality rights pursuant to Sections 81-83 of the Civil Code and the protection of a legal person’s reputation and privacy in the sense of Section 135 of the Civil Code.
The aforementioned provisions regulate the protection of reputation under current civil law. A good reputation and good name are very important values. A good reputation may be built over a very long period, especially when talking about a business. However, it can be destroyed in moments through a few well-targeted defamatory statements on social networks. Sometimes deliberately as part of competition. It is therefore essential that a good name and good reputation are adequately protected.
The Civil Code provides strong protection of an individual’s personality rights and the reputation of a legal person (entity). It describes the personality of the individual as inviolable and grants everyone the right to defend themselves from interference against anyone who interferes with these rights.
In case of interference, it is the individual’s fundamental right to request desistence from such unlawful interference with his/her personality and for rectification of the consequences thereof. Unlike previous legislation valid until 31 December 2013, this is an exhaustive list of special rights arising from unlawful interference in an individual’s personality. The same rights are also granted to a legal person (entity) pursuant to Section 135 of the Civil Code.
A more complicated question is the issue of compensation for non-material damage incurred as a result of interference with one’s good name/reputation, which is no longer a special right, but a general right according to the Civil Code. To exercise this right, it is then necessary to meet the conditions of Section 2956 of the Civil Code (for details see point 2 below).
1. What is interference with a good name/reputation?
Not every interference with someone’s good name and/or good reputation necessarily leads to liability on the part of the transgressor. In order to claim liability, the following conditions must be met:
- the injured party must have a good reputation,
- interference must be unlawful; and
- it must be able to damage this good reputation.
Presumption of integrity. One of the fundamental principles of civil law expressed in Section 7 of the Civil Code is the presumption that the subjects of law have acted fairly and in good faith, i.e. the assumption that each individual has a good reputation until the opposite is successfully proven. This means that the unlawfulness of interference with a good reputation is judged based on this premise. It is therefore not the plaintiff seeking protection against interference with their reputation who must prove they have a good reputation. On the contrary, it is up to the defendant to prove, if necessary, that the plaintiff does not enjoy a good reputation (see decision of the Supreme Court of the Czech Republic of 18 March 2008, ref. no. 30 Cdo 1385/2006).
In case of a legal entity, such a situation could arise, for example, if it was shown that it did not duly fulfil its obligations on time or only met its obligations on time in exceptional cases (see decision of the Supreme Court of the Czech Republic of 18 March 2008, ref. no. 30 Cdo 1385/2006).
Unlawfulness. Not every interference with someone’s good reputation is unlawful interference. Interference with a good reputation may be considered unlawful if:
- it is a false statement or allegation; and
- this interference exceeded a certain permissible intensity to an extent that can no longer be tolerated in a democratic society.
The aforementioned conditions of unlawfulness were previously defined by case law (in particular the judgment of the Supreme Court of the Czech Republic of 3 September 2002, case no. 28 Cdo 1375/2002 and the judgment of the Supreme Court of the Czech Republic of 2 February 2006, case no. Odo 1159/2004).
Potentiality. In terms of special rights arising from interference with a good reputation, the concept of potentiality applies, whereby no direct harm is required but merely the risk of harmful consequences will suffice. Thus, defamation need only be objectively capable of interfering with a good reputation in order to establish liability on the part of the transgressor. However, this only applies in cases seeking desistence/or the rectification of consequences. Unlike previous legislation, potentiality does not apply if the injured party also seeks compensation for non-material damage, i.e., if a claim for reasonable satisfaction is made.
2. Can the injured party seek pecuniary damages?
As stated above, under current legislation, special rights arising from interference with a good reputation only include entitlement to desistance (refraining from interference) and remedy (rectification of consequences). However, previous legislation also contained a special entitlement to ‘reasonable satisfaction’, which could also have been provided in monetary terms (normally, for example, if an apology was not sufficient to compensate for damages).
Under current legislation, however, it is no longer possible to consider entitlement to reasonable satisfaction for non-material damage to personality as a special right arising from the protection of personality, given the exhaustive (full) list of these rights in the Civil Code.
In view of the wording of Section 2956 of the Civil Code, it is no longer possible to seek reasonable satisfaction (even if other conditions are met) for interference in any aspect of an individual’s personality, which only comes into consideration in case of damage to natural rights such as honour, dignity, seriousness, privacy and health, but no longer a name or pseudonym.
Another difference in the manner of compensation for non-material damage to an individual’s personality is that, under previous legislation, it was possible to provide satisfaction not only when non-material damage actually occurred, but also in case of a mere threat to personality, as the right to satisfaction was considered a direct right arising from the protection of personality. Under current legislation, the principle of potentiality described above does not apply. Thus, the mere threat of damage will no longer suffice for a successful claim.
The injured party will therefore be obliged to prove the occurrence of damages in a potential dispute and to specifically quantify these damages. They will also have to establish a causal link between the unlawful conduct resulting in interference with its reputation and the occurrence of damages.
This procedure will also require recourse to qualified legal assistance.
In regard to the abovementioned, it can be concluded that current legislation provides strong legal protection for the reputation of both natural and legal persons. A good reputation is primarily protected from unlawful interference in the form of targeted defamation on social networks.
The right to desistance (refraining from interference) and remedy (rectification of consequences) has been retained and strengthened.
However, if pecuniary satisfaction is the subject of a claim, the claim is more complicated than before, as described in point 2 above.
In case of interference with a good reputation and defence against such interference, it is therefore always advisable to seek professional legal advice.
For more information, please contact our office’s partner, Mgr. Jiří Kučera, e-mail: firstname.lastname@example.org ; tel.: +420604242241.