INFORMATION LETTER OF THE SUPREME ECONOMIC COURT OF UKRAINE

of March 28, 2007 No. 01-8/184

About some questions of practice of application by economic courts of the legislation on information

Due to the origin in court practice of the questions connected using economic courts of the legislation on information we consider necessary to pay attention to the following.

1. Information, i.e. the documented or publicly announced data on events and the phenomena which took or take place in society, the state and the environment, is type of the non-material benefits concerning which there can be civil laws and the relations. The procedure for use of information and protection of the right to it is established by the law.

The basic rules concerning conducting information activities, that is obtaining, use, distribution and storage of information and protection of the rights of subjects of the information relations contain in articles 32 and 34 of the Constitution of Ukraine, and also in the Civil code of Ukraine (further - group of companies), the Laws of Ukraine "About information", "About printing mass media (press) in Ukraine", "About television and broadcasting", "About news agencies", "About the state support of mass media and social protection of journalists", "About scientific and technical information", "About protection against unfair competition", "About information security in information and telecommunication systems", "About the state statistics", "About libraries and library science", "About National Archive Fund and archive organizations", "About the state secret", "About National system of confidential communication", "About banks and banking activity", "About Public service of special communication and information security of Ukraine".

2. On the access mode information is divided into open information and information with limited access. In turn, information on the legal regime shares with limited access on confidential and confidential.

Information which contains data which are the state and provided by the law other secret which disclosure does harm to person, society and the state and therefore access to it is provided according to the laws on this information belongs to the classified information. Treat circle of secret information, in particular: the classified information which is recognized the state secret the procedure established by the Law of Ukraine "About the state secret"; information which is recognized bank secrecy (Article 1076 of group of companies, article 60-62 of the Law of Ukraine "About banks and banking activity"; data which are medical secret (article 40 of Bases of the legislation of Ukraine about health care, secrecy of adoption (article 226 of the Family code of Ukraine, lawyer secret (article 9 of the Law of Ukraine "About legal profession" and the mystery of the made notarial actions (article 8 of the Law of Ukraine "About notariate".

Confidential information is data which are in ownership, use or the order of separate physical persons or legal entities and extend at will according to provided by them to conditions. Persons who possess confidential information independently determine the mode of access to it, including its belonging to category confidential, and install for it system (methods) of protection. Information which is recognized that the law (Article 862 of group of companies), trade secret (Article 505-508 of group of companies) and "know-how" (article 1 of the Law of Ukraine "About investing activities" belongs to circle of confidential information in the field of economic (entrepreneurial) activity.

Also information in information, telecommunication and information and telecommunication systems, the mode of access to which and procedure for use is determined in the Law of Ukraine "About information security in information and telecommunication systems", belongs to information with limited access.

3. Courts should distinguish the right of subjects of the information relations to information from the property right to information as object of the civil laws (Article 177 of group of companies). (Amount of powers) the owner on information is determined in article 38 of the Law of Ukraine "About information". The owner has the right, in particular, to implementation of information as goods belonging to it in the form of information product or information service. The relations concerning turnover of information are governed by the existing civil and economic legislation (article 39-41 of the Law of Ukraine "About information").

In determination of categories of subjects in the field of information and amount of judicial protection which can be received by them in case of violation of their rights in the non-contractual relations, it is necessary to consider according to instructions of articles 7 and 42 of the Law of Ukraine "About information" and Article 200 of group of companies and part one of article 49 of the Law of Ukraine "About information".

The main participants of the relations in the field of information are: authors, consumers, distributors, keepers (security guards) of information.

4. According to provisions of Article 23 of group of companies person has the right to compensation of the moral damage caused owing to violation of its rights. Moral harm consists, in particular, in humiliation of honor and advantage of physical person, and also goodwill of physical person or legal entity.

According to part one of Article 91 of group of companies the legal entity is capable to have the same civil laws and obligations (civil legal capacity), as well as physical person, except those which by the nature can belong only to the person. The right to respect for advantage and honor belongs to the personal non-property rights of physical person which have no economic content (Article 269, of 270 groups of companies).

On contents of Articles 23 and 201 of group of companies, and also article 8 of the Law of Ukraine "About protection against unfair competition" the right to respect for goodwill can belong by the nature to any business entity (entrepreneur). According to article 55 of the Economic code of Ukraine both legal, and physical persons can be subjects of housekeeping. Therefore all предпринимателикак physical, and legal entities, - have the right to compensation of moral damage owing to humiliation of their goodwill and to the appeal to economic court with the corresponding claims with observance determined by the Economic Procedure Code of Ukraine (further HPK) requirements concerning jurisdiction of economic disputes.

Approach of responsibility for making of the actions specified in article 8 of the Law of Ukraine "About protection against unfair competition" taking into account contents of article 1 of the called Law perhaps only on condition of making of the corresponding offense in the field of the competition.

5. Determination of content of goodwill depends by nature her subject.

According to article 2 of the Law of Ukraine "About banks and banking activity" rather physical person it is determined that in this Law the goodwill is set of the confirmed information on person which gives the chance to draw conclusion on professional and managerial capabilities of such person, his decency and compliance of its activities to requirements of the law.

The goodwill of the legal entity is made by prestige of its trade (commercial) name, trademarks and other intangible assets belonging to it among circle of consumers of its goods and services.

The cash equivalent of goodwill can be expressed in the form of goodwill which according to Item 1.7 of article 1 of the Law of Ukraine "About the taxation of profit of the companies" is intangible asset which cost is determined as difference between book value of assets of the company and its regular cost as complete property complex which arises owing to use of the best managerial qualities, the dominating line item on commodity market (works, services), new technologies and so forth.

The goodwill as intangible asset is subject to financial accounting according to the Provision (standard) of financial accounting 19 of "Merging of the companies" approved by the order of the Ministry of Finance of Ukraine of 07.07.1999 N 163 and registered in the Ministry of Justice of Ukraine 23.07.1999 N 499/3792.

6. Humiliation of goodwill of the subject of housekeeping (entrepreneur) is distribution in any form of inveracious, inexact or incomplete data which discredit method of maintaining or results of its economic (entrepreneurial) activity in this connection the cost of its intangible assets falls. The specified actions do property and moral harm to subjects of housekeeping and therefore this harm in the corresponding claims of injured persons is subject to compensation by rules of Articles 1166 and 1167 of group of companies. Provisions of these regulations of rather specific categories of distributors of information can be concretized in the separate laws.

In case of absence at the subject of housekeeping of financial accounting of goodwill as intangible asset such subject of housekeeping is not deprived of the right to prove the size of cash equivalent of humiliation of goodwill other proofs. In origin cases with respect thereto of questions which explanation needs special knowledge the economic court can appoint the corresponding judicial examination according to article 41 HPK.

7. Distributors of information who belong to the category of mass media are exempted from liability and therefore do not compensate property or moral harm in cases, the stipulated in Article 42 Laws of Ukraine "About printing mass media (press) in Ukraine", article 35 of the Law of Ukraine "About news agencies" and article 17 of the Law of Ukraine "About the state support of mass media and social protection of journalists".

Such cases, in particular, is the publication (distribution) of the data received from news agencies or if they are literal reproduction of official performances of officials of state bodies, organizations and associations of citizens or literal reproduction of the materials published by other printing mass media with reference to it.

Determination of mass information and its means is stated in article 20 of the Law of Ukraine "About information".

In the solution of question of whether the performance of the corresponding official is official, the economic court should proceed, in particular, from this whether such performance in connection with execution by this person of the job (office) responsibilities is performed.

8. On contents of instructions of Article 91 of group of companies the right to confutation of unreliable information, stipulated in Article 277 groups of companies, belongs not only to physical, but also legal entities in the cases provided by the law including as method of judicial protection against distribution of information which harms goodwill of business entity (entrepreneur). The rights of legal entities, state bodies and local government bodies to confutation of unreliable information are provided by instructions of article 37 of the Law of Ukraine "About printing mass media (press) in Ukraine" and article 33 of the Law of Ukraine "About news agencies".

In the decision of the corresponding disputes economic courts need to recognize that unauthenticity of the negative information is legal presumption.

According to part three of Article 277 of group of companies the negative information distributed about person is considered doubtful if person who extended it does not prove opposite. Along with it according to part five of article 35 HPK the facts which according to the law are considered as established are not given when considering the case. Such assumption can be confuted in general procedure. Therefore, the burden of proof of reliability of the negative information about the claimant is assigned to the defendant, and only the obligation is assigned to the claimant to prove the fact of distribution of such information by the defendant. This conclusion is approved with the instruction of paragraph one of part two of Article 302 of group of companies.

The question of whether information distributed about this person is negative concerning it, is solved in each case taking into account circumstances of specific case.

General the procedure and methods of confutation by person of the unreliable information extended by it are provided in Article 277 of group of companies. In article 37 of the Law of Ukraine "About printing mass media (press) in Ukraine" and article 33 of the Law of Ukraine "About news agencies" the procedure and methods of confutation by mass media of information distributed by them are concretized.

9. HK, unlike the Civil code of the Ukrainian SSR of 1963, is allowed compensation of the moral damage caused by distribution of data which do not answer reality or are stated inveraciously, without their preliminary confutation. Therefore, person, whose rights or the interests are violated by distribution of unreliable information, has the right taking into account rules GPK to give to economic court the integrated claims about compensation of the moral damage caused by its distribution and about confutation of unreliable information or separately any of these requirements of own choice.

10. In cases on compensation of moral damage and confutation of the unreliable information extended by mass media, courts shall find out whether the defendant is proper. So, according to requirements of article 21 of the Law of Ukraine "About printing mass media (press) in Ukraine" edition of this means or other organization which performs its functions is responsible for distribution of data by printing mass media which can do harm to interests of other persons. Therefore in case of distribution of the called information the claim to the publisher of printing mass media cannot be satisfied, except cases when constituent documents of this means provide combination by person of functions of the publisher and edition.

11. On contents of instructions of Article 91 of group of companies the right to prohibition of distribution of information, the stipulated in Article 278 Civil Code, belongs not only to physical, but also legal entities as this right can be used by the managing subject (entrepreneur) as method of judicial protection against possible distribution of information that harms its goodwill.

12. Claims for protection of goodwill should be distinguished from claims for compensation of damage from unfair and illegal comparative advertizing. Methods of protection against these violations are provided by the Law of Ukraine "About advertizing".

13. In case of placement of information on the Internet in the type available to public acquaintance, person, whose rights and legitimate interests are violated by its distribution, can give the conforming claims to the owner of the website on which this information is posted. Data on the owner of the website can be requested according to requirements of articles 30 and 65 HPK from Hostmayster limited liability company which for this time administers system of registration and accounting of domain names and the address of the Ukrainian segment of the Internet. After implementation of the actions connected with redelegation of the rights of administration, the combining "Ukrainian Network Information Centre" shall perform these functions.

If information which does harm to goodwill of the subject of housekeeping was distributed on the Website (even not registered as mass media) and by court it is determined that such information does not answer reality, then according to the judgment it shall be confuted on the same website with observance of the requirements determined by parts of the third or sixth article 37 of the Law of Ukraine "About printing mass media (press) in Ukraine".

In case the relevant information is extended in type of messages not by the owner of the website, access to which is free, and the third parties who are anonymous, then the owner of the website as its activities created technological capabilities and conditions for distribution of the negative information which does not answer reality and violates the rights and legitimate interests of person shall bear responsibility for such distribution of information and the caused with respect thereto harm of goodwill of the subject of housekeeping.

14. For violation of property rights of intellectual property on trade secret or the rights to "know-how", in particular, by getting by illegal method of someone else's commercial information, its disclosure without the consent of person authorized on that or inducement to its disclosure or use of someone else's commercial information without the consent of the authorized person, the owner of this information has the right to compensation put property and moral harm according to rules of Articles 1166 and 1167 of group of companies. Such civil responsibility can come also in case of making of the actions specified in Chapter 4 of the Law of Ukraine "About protection against unfair competition". However it cannot be applied responsibility for collection, disclosure or use of data which cannot belong to circle of trade secret according to instructions of the resolution of the Cabinet of Ministers of Ukraine of 09.08.1993 N 611 "About the list of data which are not trade secret".

In resolution of disputes, connected with compensation of the moral damage caused by distribution of the negative information about the subject of housekeeping, the economic court in each case shall find out in what sum of money the claimant estimates the losses of non-property nature caused to it and what he proves by the amount of compensation of such harm which is subject to collection.

15. General limitation period lasting three years is applied to requirements about compensation of the property or moral damage caused by distribution or disclosure of information which violates the rights or the interests of other person.

Special limitation period in one year according to Item 2 parts two of Article 258 of group of companies is applied to requirements about confutation of the unreliable information containing in mass media. In this case limitation period is calculated of day of the room of these data in mass media or of day when person learned or could learn about these data. General limitation period lasting three years is applied to requirements about confutation of the unreliable information extended by other categories of distributors of information.

16. Disputes which arise between subjects of information relations are subordinated to economic courts if both of their parties are the faces determined in article 1 HPK. Courts should consider that according to the instruction of paragraph two of part four of Article 277 of group of companies the legal entity in whom it works is considered the distributor of information which gives official or the official in case of execution of the job (office) responsibilities.

Claims of legal entities and citizens which found the status of the subject of business activity to archive, library, museum institutions and so forth about removal of obstacles in access to open information are within the competence of economic courts (articles 1 and 12 HPK). Disputes between members of economic societies and societies concerning provision of information on activities of society are subordinated to economic courts if claimants are persons determined in article 1 HPK.

Because article 21 of the Law of Ukraine "About information" to the official documented information carries information of state bodies and bodies of local and regional self-government which is created in the course of the current activities of legislative, executive and judicial authority, of bodies of local and regional self-government, consideration of claims of citizens and legal entities to refusal in satisfaction of query concerning access to official documents or delays of satisfaction of this request (article 32-35 of the Law of Ukraine "About information") is within the competence of administrative courts (Item of 1 part one of article 17 of the Code of administrative legal proceedings of Ukraine.

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