| Abstract [eng] |
Legal right of a legal person to its professional reputation is enshrined in 1 paragraph of Article 1.114 of the Civil Code of the Republic of Lithuania among other non-property rights and values. It is important to note that the mentioned legal measures contained in the legal system of the Republic of Lithuania and applied by the national courts must not violate the freedom of expression, protected by the European Convention on Human Rights (ECHR) and fundamental freedoms (hereinafter – the “Convention”). The national authorities when establishing and national courts when applying the legal rules for the protection of professional reputation that interferes with the freedom of expression, must make sure that such rules and their application do fulfill three cumulative conditions, determined by the European Court of Human Rights. Such conditions are: (1) the interference must be prescribed by law, (2) the interference must be aimed at protecting one or more of the interests or values listed in 2 paragraph of Article 10 of the Convention, (3) the interference must be necessary in a democratic society. With respect to the protection of a right of a legal person to its professional reputation in the legislation of the Republic of Lithuania, one may state that the first two conditions are fulfilled, but there are some doubts regarding the third condition, especially assessing the appliance of a preventive action or obligation for the media to pay pecuniary or (and) non-pecuniary damages when the media refuses to reveal the source of the disseminated information, even if the media did not know that the disseminated information was erroneous. The protection of the right of a legal person to its reputation is enshrined in Article 2.24 of the Civil Code of the Republic of Lithuania. In order to state the violation of the right of a legal person to its professional reputation the court must establish such facts: (1) the fact that the information was disseminated, (2) the fact that the disseminated information was about a particular legal person, (3) the fact that the disseminated information damages the professional reputation of a legal entity, (4) the fact that the disseminated information is erroneous. Not always it is simple and easy to determine such facts: there are some difficulties delimitating the news from opinion and for the plaintiffs is quite a challenge to proof the damage suffered because of the particularity of damaged right or for the defendant sometimes it is almost impossible to prove that the disseminated information is true because of the inability to get and provide certain proof. There are also some issues when determing the right defendant when applying to the court and questions when deciding on whether the person to whom the information was disseminated is right regarding the possibility to defend one’s damaged professional reputation. The national courts must be flexible when taking the decision and must asses all the details in the case as not to base their decision only on formal grounds. According to Article 2.24 of the Civil Code in judicial proceedings the plaintiff may demand for further separate defense remedies: (1) to refute the disseminated information, which damages its professional reputation, (2) to declare the disseminated information untrue and damaging its professional reputation, (3) to award pecuniary damages, (4) to award non-pecuniary damages. The plaintiff may also apply to the court with the preventive action demanding to prohibit the dissemination of a certain information in the future or interim legal measure. The latter if applied by the court may be subject to the assessment by the European Court of Human Rights regarding the violation of Article 10 of the Convention as such remedy might be considered not proportional to the legal aim of the right to professional reputation. |
