Currently, the global economy is actively occurring and developing legal entities that are in fairly tough competition with each other. Therefore, any organization, regardless of its size, is very important reputation. Reputation affects relationships with partners, helps to maintain contact with consumers, overcome competitors and promotes business development. The main role is played by the image. There are positive and negative reputations. Thanks to a good reputation, the company has the opportunity to increase the value of its goods, and accordingly the amount of sales increases. Stable functioning of the organization attracts qualified workers, as well as banks, which sometimes help to survive in economically difficult situations. In this regard, the development by the legislator of effective mechanisms for protecting the business reputation of legal entities is extremely important, since the dissemination of defamatory information has long-term consequences associated primarily with financial losses, including globally, in all markets in which the company operates. . In turn, this is reflected in the labor market, the latter causes negative social consequences in society.
Legal nature of defamation under US law
US law is based on the traditions of the Anglo-Saxon legal family, and therefore, the legal regulation of relations of protection of business reputation has been subjected to the active influence of English law. In the United States, along with federal law, there is legislation of states that have their sovereignty, which extends throughout the state, with the exception of those powers that were given to the federal government. Consequently, states at the local level can expand a number of powers compared to federal laws, in particular, the constitutions of a number of states are represented in a more expanded form, in contrast to the US Constitution, but in compliance with the basic fundamentals of US federal law. It should also be noted that common law also plays a significant role in federal and state legislation, in particular, Louisiana law, in which there are certain features of Romano-German law, is significant.
In the United States, the right to distinguish such a thing as defamation (from the Latin. Diffamo – “deprive a good name”). In general terms, it is the identification of incorrect information, discrediting the honor and dignity of a person or company. According to American lawyer Robert Wanderet: “Defamation is a statement that is false and unprotected privileges, tarnishes a person’s reputation, encourages other people to condemn or hate him, or harm the business of this person” . False information that has caused damage to a person is called defamatory.
In the US, each state has its own defamation laws. For example, there is a law such as the Law on the Enforcement of the Protection of Constitutional Heritage (“SPEECH Act”), adopted in 2010, amending the US Code, which prohibits the recognition and enforcement of foreign defamation judgments and certain foreign judicial decisions. decisions regarding online computer service providers . The law mentions the definition of defamation, which means any action, namely slander or a statement that is false, undermining the reputation, as well as representing a person in a bad light, leading to criticism, dishonor or condemnation.
In the US, defamation is considered a tort (civil wrongdoing), but sometimes a person who spread false information that caused harm may even become the subject of criminal law prosecution. But, in fairness it should be noted that cases of criminal responsibility are very rare.
As mentioned earlier, in the event of defamation in the media, there is a clear clash of two fundamental rights: freedom of speech and the protection of honor, dignity and reputation. In this regard, the balance between the implementation of these two rights causes difficulties not only in the legislation, but also in the doctrine, both within the national legal system and in the world arena. In the United States, the right to freedom of speech plays a major role, including in the media.
As stated above, US law relating to this issue is based on common law. Meanwhile, the present definition of the First Amendment to the US Constitution radically changed the opinion of American courts on defamation laws. An example is the New York Times v. Sullivan case , in which the US Supreme Court ruled that some offensive judgments are regulated and protected by the First Amendment to the US Constitution. The case concerned a newspaper article that contained unflattering remarks about a public figure. At the same time, the court pointed to the presence in the United States of “deep national commitment to the principle that debates on issues of public importance should be relaxed, reliably and widely open.” The court recognized that there could be mistakes in public discussions of politicians’ activities. If these mistakes are made reasonably and deliberately, then they should be protected from liability for defamation. The court established a rule according to which government officials can sue statements made about their public behavior only if the statements were made with “malicious intent” . “Malicious intent” suggests that the person who made the statement knew that the statement contained in it was untrue, or was indifferent to its statement indifferently, not caring whether it was true or not (for example, when It doubts the truth of the statement, but did not bother to check it before further publication).
The information is defamatory under US law, if there is a fault of the person in disseminating it. At the same time, as follows from the foregoing judicial precedent, the defendant must act with “malicious intent”, if he disseminates defamatory information in relation to officials, etc.
We can single out the following general conditions for bringing a person to responsibility for the dissemination of discrediting information: the fact of the dissemination of information has been established, the burden of proof of which is laid on the plaintiff; this information was available to a third party (printed in a book, made public on television, said loudly, so that it would be heard …, etc.); the person must make an affirmative statement, do not express his opinion, since it is impossible to determine his falsity with regard to the latter (if the person disseminates reliable information discrediting the person, but not in order to protect public interests, this will not be defamation); This information should damage the reputation, that is, the behavior of third parties towards the person changed after receiving information regarding the latter, and not for the better (some individuals stopped communication, loss of work, etc.).
In addition, the “slanderous” statement should not be unprivileged. This condition is based on the fact that the most important thing is freedom of speech. Therefore, the statements of “false witnesses”, statements by congressmen made in the US Congress or in official materials are privileged, even if they say or write things that could be slanderous.
Findings. In Russia, at the legislative level, the issues described are not regulated in detail. The basic law on defamation is the Civil Code of Russia (Art. 152 of the Civil Code of the Russian Federation), which contains a regulatory framework only for general issues of the protection of the rights of a person in respect of whom defamatory information is disseminated. In this regard, from the doctrinal and law enforcement point of view, the following provisions of the US law are quite reasonable: the defamatory information should be an assertion, not an opinion; The assessment of the presence of discrediting information should be based on the analysis of the content of the statement as a whole (messages, etc.), and not on the content of a separate part (piece), on the analysis of its overall meaning, which is understandable to the average person.
1. Abolonin, G. O. On the legal systems of the United States and Russia / G. O. Abolonin // Bulletin of the civil process. – 2013. – №> 6. – p. 157-179.
2. [US law on ensuring the protection of the constitutional legacy of the SPEECH Act // Official web portal U.S. Government Publishing Office – National Publishing House]. – Electron. Dan. – Access mode: http://www.gpo.gov/ fdsys / pkg / PLAW-111publ223 / html / PLAW- 111publ223.htm.
3. [The decision of the US Supreme Court in the case of the New York Times Co. v. Sullivan 376 U.S. 254 (1964) // Archives of decisions of the US Supreme Court]. – Electron. Dan. – Access mode: https://supreme.justia.com/cases/ federal / us / 376/254 / case.html.
4. Samorodov, D. A. The concept of inviolability of honor and dignity in the laws of Great Britain, France, USA, Germany and Russia / D. A. Samorodov // Moscow University Bulletin. S. Yu. Witte. Series 2, Legal science. – 2016. – №№ 2 (9). – p. 43.