Protection of personality in cases of infringement of civil honor, privacy, name, and dignity of the person concerned, and protection of the good reputation of a legal entity

When is there an infringement of our personal rights?

1. As the Supreme Court of the Slovak Republic correctly explains in its resolution under file number 5Cdo/274/2007: “The concept of interference with the personal rights of a natural person is not defined by the Civil Code, nor does it provide a list of specific forms of interference that may affect the personal rights of a natural person. However, it undoubtedly includes both active conduct and passive behavior (refraining from or omitting to act) that has the characteristics specified in the law. These characteristics are, in particular, the unlawfulness and impermissibility of the interference, the objective capacity of the interference to have a negative impact on the personality of a natural person, and the causal link between the interference and the violation of personal rights. The absence of any of these conditions precludes the possibility of imposing sanctions under the provisions of Section 13 of the Civil Code.
2. Furthermore, according to the judgment of the Supreme Court of the Slovak Republic under file number 1 Cdo 113/2009: “An infringement of the personal rights of a specific natural person may occur through false statements, but also through factual statements that are true in themselves but have been presented in such a form, in such a context or under such circumstances that they objectively give a distorted impression of the truth, thereby having a defamatory effect. Finally, an infringement of personal rights may also occur through the presentation of unjustified criticism of certain behavior of that person.”
3. Furthermore, according to the resolution of the Regional Court in Bratislava under file number 9Co/75/2019: “Even a rhetorical question is essentially an evaluative judgment. The use of a rhetorical question does not give the author a license to make any evaluative judgment, even one that has no factual basis. While the use of a question may, in a certain context, imply that the author admits doubts about his judgment, in another context, a rhetorical question may be only a literary device to make the text more dynamic, and doubts about the statement contained therein may not necessarily follow from it. Even in the first case, however, criticism expressed in this form requires that the content of the rhetorical question represent at least one of several possible ways of interpreting or understanding the factual basis for the criticism. Individual statements may not in themselves constitute a serious infringement of the right to protection of personality, which is why the overall tone of the article, or the overall context of the article, which may have a negative effect, is much more important.
4. Unjustified interference with the personality rights of a natural person can therefore occur in many ways. In order for there to be an unauthorized interference with the personality rights of a natural person, the interference must be unauthorized and impermissible, the interference must be objectively capable of having a negative impact on the personality of the natural person, and there must be a causal link between the interference and the violation of personality rights.
5. An interference with personality rights may be justified and permissible, for example, in cases where the natural person has given their consent (e.g., consent to take a photograph or the so-called “roast me challenge”). Nor will it be an unjustified and unlawful interference in the case of the existence of so-called statutory licenses, which are specified in Section 12 of the Civil Code:
6. “Documents of a personal nature, portraits, images, and audio and video recordings relating to a natural person or their expressions of a personal nature may only be made or used with their consent.
7. Consent is not required if documents of a personal nature, portraits, images, sound or image and sound recordings are made or used for official purposes on the basis of the law.
8. Portraits, images, and audio and video recordings may also be made or used in an appropriate manner without the consent of the natural person for scientific and artistic purposes and for press, film, radio, and television reporting. However, even such use must not conflict with the legitimate interests of the natural person.
9. The interference must be objectively capable of having a negative impact on the personality of the natural person. The subjective feeling of the natural person that there has been a negative interference with their personality rights is not sufficient; it will be necessary to assess whether the majority of other natural persons would also perceive the interference in question as negative. This assessment may be made at the discretion of the court or, in our opinion, also on the basis of witness statements, for example in the case of an interference with the personality rights of a member of a particular subculture or social group, which would not appear negative to an ordinary natural person, but could be perceived as such by members of that subculture or social group (for example, disparaging the gaming skills of a professional player of a certain computer game, which would exceed the limits of permissible criticism and humiliate the player in the gaming community, but to an ordinary natural person, the professional player’s willingness to address this interference would seem petty).
10. Another prerequisite for an infringement of personal rights is the existence of a causal link between the infringement and the violation of personal rights. According to the judgment of the Supreme Court of the Slovak Republic under file number 5 Cdo 126/2009: “In legal theory, the causal link (causal nexus) refers to a direct connection between phenomena (objective circumstances) in which one phenomenon (cause) causes another phenomenon (effect).”
11. In the case of interference with the civil honor, dignity, reputation, or privacy of the person concerned, the interference most often occurs through the expression of a particular person, and it is therefore necessary to examine the proportionality between the interference with the freedom of expression of the potential interferer and the guarantees of the personal rights of the person concerned.
12. The Constitutional Court of the Slovak Republic performs a proportionality test based on finding answers to the questions WHO, ABOUT WHOM, WHAT, WHERE, WHEN, and HOW in the assessed case “spoke” (published information) (e.g., II. ÚS 152/08, II. ÚS 326/09, I. ÚS 408/2010, IV. ÚS 492/2012).
13. The question of WHO infringed the right to protection of personality (right to privacy):
14. In connection with the question of WHO interfered with the right to protection of personality, the Constitutional Court refers to the case law of the ECtHR, which clearly shows that journalists and the mass media enjoy a privileged position in terms of the protection of freedom of expression, especially when reporting on matters of public interest (e.g., ECHR judgment Prager and Oberschlick v. Austria of April 26, 1995, complaint no. 1594/90, or ECHR judgment Bladet Tromso and Stensaas v. Norway of May 20, 1999, complaint no. 21980/93). Journalists have a (social) duty to provide information and ideas on all matters of public interest, and the public has a right to receive such information. Journalists are allowed to use a certain degree of exaggeration and provocation when providing information (Perna v. Italy, application no. 48898/99, ECtHR judgment of 6 May 2003, paragraph 39).
15. The conduct of a journalist who, when publishing defamatory information, fails to demonstrate that he had reasonable grounds to rely on the truthfulness of the defamatory information he disseminated and furthermore, if he does not prove that he took all reasonable steps to verify the truthfulness of the information, to the extent and intensity to which verification was available to him, and finally, if he himself had no reason to believe that the defamatory information was untrue. The publication of such information cannot be considered reasonable if the disseminator of the information does not verify its truthfulness by questioning the person to whom the information relates and does not publish their opinion, except where such a procedure is impossible or where it was not necessary (decision of the House of Lords of 28 October 1999 in the case of Reynolds v. Times News Papers Limited, cited in the ruling of the Constitutional Court of the Czech Republic, file no. I. ÚS 453/03, see also IV. ÚS 302/2010).
16. The question of WHO was the subject of the interference (whose personal sphere was interfered with):
17. The effort to promote the exchange of views on topics of public interest and appeal also results in the categorization of persons who are the subject of information published in the press or other media and whose personal sphere is or may be negatively affected. The limits of acceptability for the dissemination of information relating to the personal sphere are broadest for politicians and narrowest for “ordinary” citizens.
18. In connection with the above facts, the Constitutional Court notes that it has already expressed a legal opinion in its case law, according to which, in terms of the intensity of personality protection, judges are in the middle of the spectrum ranging from unknown individuals to politicians, with a slight tendency towards politicians (m. m. II. ÚS 152/08, point 31, see also II. ÚS 261/06). This conclusion of the Constitutional Court is essentially consistent with the legal opinion of the ECtHR, which, for example, in the case of JULY and SARL Libération v. France, complaint no. 20893/03, judgment of February 14, 2008, stated that members of the judiciary acting within the scope of their duties may be subject to a wider degree of acceptable criticism than ordinary citizens.
19. According to Vozár: “There is no definition of persons of public interest in the Slovak legal system, although this term is often used in public and in the media. We will therefore attempt to clarify this term, as it is important in terms of the possibilities for criticising such persons. In general, persons of public interest can be divided into two categories:
20. absolute persons of public interest,
21. relative persons of public interest.
22. Absolute persons of public interest are the focus of public attention primarily as a result of their public office. Relative persons of public interest are only temporarily the focus of public attention because they are briefly associated with a particular event of public interest. Persons can become relative persons of public interest not only through positive actions, but also through negative actions.
23. By referring to the category of persons of public interest, we wanted to draw attention to the protection of their individual personality rights. In the case of these persons, the right to information takes precedence over individual personality rights in the event of a conflict between the right to information and individual personality rights. As a result, the boundaries of permissible criticism are broader for politicians (persons of absolute public interest) than for private individuals. Unlike private individuals, politicians inevitably and knowingly expose themselves to close scrutiny of their words and deeds by journalists and the general public and must therefore show a greater degree of tolerance. When it comes to criticism of the government, the limits of permissible criticism are broader in relation to the government than in relation to a private individual or even a politician. In a democratic system, all government actions must be subject to strict oversight not only by the legislature and the judiciary, but also by the press and public opinion. Persons of public interest are presumed to have given their implied consent to the publication of information about themselves.
24. The question of WHAT was the content of the interference:
25. In assessing this question, the court examines, for example, whether the content of the interference (e.g., what the article is about) was a matter of public interest or a private matter of the person concerned. This prima facie simple question sometimes causes problems in practice when, for example, persons of public interest claim that a certain event (e.g., a Saturday garden party attended by high-ranking public officials and influential businesspeople) concerned only their private lives and that media articles about it infringed on their privacy, and the media argue that even if the event at first glance concerned the private lives of persons of public interest, the behavior of persons of public interest at the event, the possible presence of persons of questionable reputation at the event, or the very nature of the event, which was attended by a large number of persons of public interest, attracts public interest to the event and it is legitimate to write or report about it.
26. In the case of matters of public interest, increased protection is provided for the search for and dissemination of related information and ideas. Matters of public interest primarily include information about the activities of state authorities and the persons who represent them, i.e., persons active in public life (politicians).
27. The question of WHERE the interference occurred:
28. A significant criterion that is routinely applied when assessing interference with freedom of expression is the “place” where the incriminating statements were made or published. In general, the more widely the information is distributed, the higher the level of protection of personal rights.
29. The question of WHEN the interference occurred:
30. Whether or not an issue is in the public interest may in some cases depend on the passage of time. A particular issue may acquire or lose this character over time.
31. The question of HOW the interference occurred:
32. When assessing the limits of freedom of expression, a distinction must be made between facts and value judgments. The existence of facts can be proven, whereas the truthfulness of value judgments cannot be proven (e.g., Lingens v. Austria, paragraph 46; also the ECtHR judgment of July 12, 2001, in the case of Feldek v. Slovakia, No. 29032/95, para. 75), although even these must be based on a sufficient factual basis (ECHR judgment of 24 February 1997, De Haas and Gijsels v. Belgium, no. 19983/92, para. 47). The protection of statements that are evaluative in nature is thus generally more intense from the perspective of freedom of expression than in the case of the publication of facts (factual claims) that may later prove to be untrue (II. ÚS 152/08, II. ÚS 326/09, IV. ÚS 302/2010). The sub-questions defined in this way, in principle , make it possible to assess the proportionality of the interference with the personal rights of the addressee of the criticism from all relevant aspects, but they may not always provide a clear answer. This test is therefore only one of the tools used for the constitutional assessment in question. At the same time, it should be emphasized that a possible conclusion that the interference with personal rights is inadmissible does not automatically provide an answer to the follow-up question of whether, in addition to moral satisfaction, compensation for non-material damage is also justified and to what extent.

Protection of the good reputation of a legal entity

1. Legal entities also have their own name or title. As with natural persons, the reputation of a legal entity may be damaged by the actions of other persons. In modern society, this can happen especially in the case of media articles that inform the public about certain actions of a legal entity or in the case of false negative reviews written by competitors or dissatisfied business partners or customers who create fictitious reviews solely for the purpose of damaging the reputation of a legal entity.
2. According to Csach: “The protection of reputation is, so to speak, the protection of the personality of a legal entity. It protects against unauthorized interference with the public’s perception of a legal entity. (…) Good reputation is a legal category, an abstract concept. Every legal entity has a good reputation, regardless of whether it is a global corporation using child labor or a non-profit organization pursuing noble goals. However, specific actions by a legal entity that call into question its credibility in the eyes of its contractual partners or the public (failure to fulfill contractual or legal obligations) will be reflected in the punishment of statements that may constitute an interference with its good reputation. In principle, any unauthorized or incorrect statement about a legal entity, such as a defamatory statement, may constitute damage to its reputation. It is not excluded that even a true statement about a legal entity may be considered damage to its reputation. However, it must always be damage of such intensity that it can no longer be tolerated in a democratic society. In disputes over the protection of reputation (similar to personal honor), the interest in protecting reputation on the one hand is balanced against freedom of expression on the other. Similar to entities of public interest, legal entities under public law or legal entities with state or other public corporation ownership should tolerate a higher degree of criticism than ordinary legal entities under private law (Supreme Court of the Slovak Republic, file no. 4 Cdo 212/2007). It is still debatable whether economically powerful corporations should also tolerate a similar higher degree of criticism (in this regard, see ECtHR in Steel and Morris v. the United Kingdom, application no. 68416/01, judgment of February 15, 2005, paragraph 94).
3. In view of the above, interference with the reputation of a legal entity is very similar to interference with the personal rights of a natural person. The court will therefore also examine the proportionality between the freedom of expression of the potential interferer and the guarantee of the right to protection of the reputation of a legal entity.
4. Just as the court will take a different view of the protection of the personality rights of a person of public interest and an ordinary natural person, it will take a different view of the protection of the reputation of a so-called state-owned enterprise (a legal entity with state ownership) and the protection of the reputation of an ordinary “private” legal entity. In our opinion, legal entities in which the state does not have an ownership interest but which actively trade with the state will also be subject to stricter scrutiny by the court.
5. Specifically, in connection with the right to monetary compensation for non-pecuniary damage for damage to the reputation of a legal entity, we consider it appropriate to mention the decision of the Supreme Court of the Czech Republic under file number 23 Cdo 327/2021, according to which the constitutional guarantee of good reputation under Article 10 of the Charter of Fundamental Rights and Freedoms does not imply the necessity of its legal protection through the private law of a legal entity for compensation for non-pecuniary damage caused by an unjustified interference with its reputation.
6. The Supreme Court of the Czech Republic ruled in proceedings in which the plaintiff commercial company sought protection against interference with its reputation, which the defendant association allegedly committed by publishing information about the quality of the plaintiff’s activities in the field of nature and landscape protection. No agreement on compensation (reparation) for non-pecuniary damage was expressly concluded between the parties to the proceedings.
7. The Supreme Court of the Czech Republic concluded that a legal entity is not entitled to compensation for non-pecuniary damage caused by (the mere) unjustified interference with its reputation under Section 135(2) of the Czech Civil Code, unless expressly agreed otherwise. The Supreme Court of the Czech Republic took into account that the current legal regulation in the Czech Civil Code assumes the obligation to compensate for non-pecuniary damage only if such an obligation has been expressly agreed or if it is specifically provided for by law, and that the law does not specifically provide for this in connection with an unjustified interference with the reputation of a legal entity.
8. The judges therefore considered whether the existence of this right could be inferred on the basis of constitutional principles, by analogy with the legal provisions of one of the grounds for the right to compensation for non-pecuniary damage specifically provided for by law, or from a directly applicable provision of a ratified and promulgated international treaty.
9. The Supreme Court of the Czech Republic thus took into account, in particular, that the constitutional guarantee of good reputation under Article 10 of the Charter of Fundamental Rights and Freedoms does not imply the necessity of its legal protection (precisely) through the private law of a legal entity for compensation for non-pecuniary damage caused by an unjustified interference with its reputation.
10. The obligation to protect this right does not arise from ratified and promulgated international treaties binding on the Czech Republic, nor from EU law. The Supreme Court of the Czech Republic also took into account that, according to the case law of the European Court of Human Rights, it is necessary to distinguish between the good reputation of a legal entity and that of a person in relation to the question of the existence and scope of the right of legal entities to a good reputation, with Member States having broad discretion as regards the remedies they provide under national law.
11. On the basis of a comparative analysis of related foreign legal regulations, the Supreme Court of the Czech Republic further concluded that the existence of this right cannot be considered part of the European continental convention of private law, because these legal regulations contain a wide range of approaches to this issue and the right to compensation for non-pecuniary damage is granted to legal entities only in exceptional cases. Similarly, supranational (academic) projects for the unification of (European) private law leave open the question of compensation for non-pecuniary damage to legal entities as a result of unjustified interference with their reputation. The Supreme Court of the Czech Republic further considered that this right cannot be regarded as a traditional institution of Czech private law, since most of the legal regulations in force in the Czech territory, even in the period before 1948, on which the effective legal regulation in the Civil Code is conceptually based, did not recognize this right for legal entities, and legal theory and practice did not even derive it by interpretation (with the exception of the period from February 1, 1992, to December 31, 2013).
12. Regarding this otherwise interesting decision of the Supreme Court of the Czech Republic, we would like to point out that its conclusions are not applicable in the legal environment of the Slovak Republic. The Slovak Civil Code (unlike the Czech Civil Code) expressly regulates the right of the legal entity concerned to compensation for non-pecuniary damage in the event of an infringement of its good reputation, subject to the fulfillment of other requirements (provision of § 19c (2) and (3) of the Civil Code, see also point83 of this article).

What to do if the personal rights or good reputation of a legal entity have already been infringed?

1. If the personality rights or the right to protection of the good reputation of a legal entity have already been infringed, the person concerned has several means of protecting their rights at their disposal. These means are provided by private and public law regulations.
2. First and foremost, if there has been an infringement of the personality rights or the right to protection of the good reputation of a legal entity in a periodical publication, the new Act No. 265/2022 Coll. on Publishers of Publications and on the Register in the Field of Media and Audiovisual Media, as amended (the Publications Act), grants the affected person:
3. the right to express their opinion,
4. the right to additional notification.
5. According to the provisions of Section 2(1)(a) and (b) of the Publications Act:

“A publication is content or a set of content expressed in words, writing or images, publicly distributed in the territory of the Slovak Republic or intended to be made available to the public in the territory of the Slovak Republic for the purpose of informing, entertaining or educating the general public; a publication is not

1. an audiovisual work, an audiovisual recording of an artistic performance, an audiovisual recording of a program,
2. an audio recording of an artistic performance of a musical work, or an audio recording of a program.
3. According to the provisions of Section 2(4)(a) to (c) of the Publications Act:

“A periodical publication is a publication that is publicly distributed or made available to the public at least twice a year under the same title and marked with an international standard serial number (ISSN), if assigned, which is

1. periodical press,
2. an electronic periodical publication; an electronic periodical publication accessible in multiple file formats is considered to be a single electronic periodical publication,
3. news web portal.”
4. According to the provisions of Section 2(5) of the Publications Act:

“A news web portal is a periodical publication that provides the general public with regularly updated communications of a journalistic nature through an application or website under a common second-level or lower-level web domain name, , unless it is an appendix or special content thereof; Regular updates are considered to be updates that are made at least once a week.”

1. According to the provisions of Section 2(17) of the Publications Act:

“An agency service is a set of communications distributed by a press agency for which the press agency is editorially responsible.”

1. According to the provisions of Section 8(1) of the Publications Act:

“If a false or incomplete factual statement has been published in a periodical publication or agency service that interferes with the honor, dignity, or privacy of a natural person or the good reputation of a legal entity, on the basis of which the person can be precisely identified, that person has the right to publish a statement. The publisher of the periodical publication, the operator of the news web portal, and the press agency are obliged to publish the statement at the request of that person.”

1. According to the provisions of Section 8(2) of the Publications Act:

“A request for publication of a statement must be delivered to the publisher of a periodical publication, the operator of a news web portal, or a press agency within 30 days of the publication of the factual claim in question, otherwise the right to a statement shall expire. Rights arising from special regulations shall not be affected thereby.”

1. In accordance with the above, any natural person whose honor, dignity, or privacy has been infringed upon in a periodical publication and any legal entity whose reputation has been infringed upon in a periodical publication shall have the right to request the publication of a statement defending their personal rights/good reputation.
2. According to the provisions of Section 9(1) of the Publications Act:

“If a periodical publication or agency service containing communications of a journalistic nature or being a communication of a journalistic nature contains a factual statement about proceedings before a public authority against a person on the basis of which the person can be precisely identified, and these proceedings have been concluded by a final decision, that person has the right to request the publication of an additional notice of the final outcome of these proceedings.”

1. According to the provisions of Section 9(2) of the Publications Act:

“A request for the publication of an additional notice must be delivered to the publisher of a periodical publication, the operator of a news web portal, or a press agency within 30 days of the date of the final decision concluding the proceedings, otherwise the right to an additional notice shall expire. Rights arising from special regulations shall remain unaffected.”

1. The purpose of the right to additional notification is to create a tool for providing additional information to the public about proceedings before a public authority that have been legally concluded. This right will probably be relevant for persons of public interest who, for example, have been charged but the criminal case has ended with their final acquittal, and the responsible person has not informed the public of this fact on their own initiative.
2. In the new Publications Act, the legislator also addressed the frequent practical question of who is responsible for the content of a publication in a specific case.
3. According to the provisions of Section 2(13) to (15) of the Publications Act:
4. “The publisher of a publication is a person at whose initiative or under whose direction the publication is published or made available to the public and who directs and ensures the public distribution of the publication or makes the publication available to the public at their own expense and responsibility.
5. The publisher of a periodical publication is a person who is editorially responsible for the content of a periodical press or electronic periodical publication.
6. The operator of a news web portal is a person who is editorially responsible for the content of the news web portal and, at their own expense, allows the public access to the content of the news web portal.
7. Nevertheless, an interesting question remains: what if the author of a defamatory statement who uses the space provided by the above-mentioned responsible person is different from the above-mentioned responsible person?
8. The Supreme Court of the Czechoslovak Socialist Republic addressed this issue in the 1960s in its Collection No. III. It stated the following:
9. “In the case of interventions carried out by the press (radio, television), it is necessary to distinguish between cases where the author of the report (article) is a third party or an employee of the publishing house (radio, television). If the author of an article published in the press is a person other than an employee of the publishing organization, there is no doubt that protection can be sought against that person as directly responsible for the intervention. In view of the right of disposal of the affected citizen, it cannot be ruled out that the plaintiff in a court dispute will either settle for a claim against the organization itself (…), or, conversely, against the author (…), or decide to file a claim against both. In none of these cases will there be any misconduct. However, if the author of the article (director, editor of the program, etc.) is an employee of the organization who acted within the scope of his or her duties by committing an unauthorized intervention, then judicial practice tends to favor the opinion that, with regard to the provisions of § 421(2) of the Civil Code (note: currently Section 420(2) of the Civil Code) in relation to the provisions of Section 20(2) of the Civil Code, the interference is caused by the organization, provided, of course, that it is proven that the employee acted within the scope of the organization’s tasks.”
10. However, even the opinion of the Supreme Court of the Czechoslovak Socialist Republic did not expressly address the now common situation where the space provided by the responsible person is used by discussants, mostly under the cloak of anonymity, who spread hatred and vulgarity. A significant shift in this issue came with the decision of the Grand Chamber of the European Court of Human Rights on June 16, 2015, which ruled in the case of Delfi AS v. Estonia.
11. This was the first case in which the European Court of Human Rights dealt with responsibility for the content of comments published on an online news portal. The complainant, Delfi AS, is one of the largest operators of an online news portal in Estonia. In January 2006, it published an article on its website about a shipping company and its decision to change the routes of some ferries to the islands.
12. To this end, the shipping company had an icebreaker break up the route between the islands, thereby delaying the opening of routes on solid ice – a faster and cheaper connection to the islands than by ferry – by several weeks. Below the article, readers had the opportunity to view comments from other visitors to the site.
13. Some comments contained defamatory and threatening text directed at the shipping company and its owner. At the request of the owner of the shipping company, Delfi AS removed the comments, but only six weeks after they were published. The shipping company Delfi AS sued and obtained a judgment holding Delfi AS liable for the offensive comments and ordering it to pay 5,000 kroner (approximately €320) in damages.
14. Delfi AS considered the Estonian court’s ruling to be an infringement of freedom of expression and therefore lodged a complaint with the European Court of Human Rights. In its judgment of October 10, 2013, the European Court of Human Rights found that Delfi AS’s right to freedom of expression, protected by Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, had not been violated. Given that this case raised serious questions of interpretation of the Convention for the Protection of Human Rights and Fundamental Freedoms, the case was referred to the Grand Chamber of the European Court of Human Rights at the request of the company.
15. The comments under the article about the shipping company were clearly illegal – they were hateful, sometimes vulgar, verbal attacks (hate speech), many of which also incited violence. Such statements are not protected by the Convention for the Protection of Human Rights and Fundamental Freedoms, and therefore their authors do not enjoy freedom of expression in this regard.
16. The central question in the case is therefore whether the operator of an internet portal is responsible for the statements of third parties who participate in the discussion under the article. The European Court of Human Rights considered it essential to assess four aspects of the case, namely the context of the comments, the possibility of attributing direct responsibility to the commentators, the steps taken by Delfi AS to prevent offensive comments, and the consequences it had to bear on the basis of domestic court proceedings.
17. The Grand Chamber considered the extreme nature of the comments and the fact that Delfi AS is a professionally managed news portal operated on a commercial basis, which profits economically from the volume of comments, to be key factors. Its role cannot be limited to purely technical support, as it has full control over the content of the portal. The discussants themselves did not have the option of deleting posts once they had been published. In addition, Delfi AS allowed readers to discuss articles anonymously, without the obligation to register, and did not implement any system enabling the retroactive identification of the author of hate speech.
18. Victims of such speech therefore had no way of holding the author of the comments directly accountable. The website’s mechanism for filtering verbal attacks consisted of an automatic system for deleting profanity, warnings that comment authors were fully responsible for their content, and the option to report inappropriate comments to the administrator.
19. However, these measures clearly failed to prevent the publication of hate speech and threats against the owner of the shipping company, which remained publicly available for six weeks. The consequences for Delfi AS were not significant, however, as the fine imposed by the court was low and the readership of its website remained unchanged. On this basis, the Grand Chamber concluded that the interference with Delfi AS’s freedom of expression was necessary in a democratic society to protect the rights of others, specifically the right to respect for private life. The Grand Chamber also pointed out that the conclusions of the case apply exclusively to the operation of news portals, not to other internet discussion forums, blogs, or social networks, where participants share their personal opinions without being moderated by the forum operator.
20. In connection with the Grand Chamber’s opinion, the question arises as to who will be responsible for content published on internet discussion forums, social networks, and blogs, which are designed to allow contributors to create discussion topics themselves and discuss them freely.
21. This issue was partially addressed in the case of Stacho v. Klub Strážov, which concerns the liability of a discussion forum provider for defamatory posts by anonymous contributors. According to our information, the latest decision in the case is a resolution of the Supreme Court of the Slovak Republic under file number 9Cdo/78/2021.
22. According to the provisions of Section 2(a) of Act No. 22/2004 Coll. on electronic commerce and amending and supplementing Act No. 128/2002 Coll. on state control of the internal market in matters of consumer protection and amending and supplementing certain acts, as amended by Act No. 284/2002 Coll. (Act on Electronic Commerce):

“information society service” means a service provided at a distance, by means of electronic equipment connected to an electronic communications network, normally for remuneration, at the request of a recipient of information society services, in particular commercial communication, processing, transmission, storage, retrieval or collection of data and electronic mail, except for personal electronic mail; Information society services do not include radio and television broadcasting, including teletext, voice telephony services, fax services, and services whose content precludes their provision at a distance.”

1. According to the provisions of § 6(1) to (5) of the Electronic Commerce Act:
2. “The service provider shall not be liable for the information transmitted if the information society services consist exclusively of the transmission of information in an electronic communications network or the provision of access to an electronic communications network, and the service provider
3. has not initiated the transmission of information,
4. has not selected the recipient of the information,
5. has not compiled or modified the information.
6. The transmission of information in an electronic communications network or the provision of access to an electronic communications network pursuant to paragraph 1 shall also include the automatic temporary storage of transmitted information, which serves solely to carry out the transmission in an electronic communications network, provided that the information is not stored in the network for longer than is necessary for its transmission.
7. The service provider shall not be liable for the automatic temporary storage of information solely for the purpose of making its further transmission in an electronic communications network to other service recipients more efficient, if the service provider
8. does not modify the information,
9. complies with the conditions of access to the information,
10. complies with the rules for updating information in a manner generally accepted and used in the relevant sector,
11. does not use technology to illegally obtain and use stored information,
12. without undue delay, prevents access to stored information or removes the information after learning that it has been removed from the original source of transmission or access to it has been prevented, or a court or supervisory authority has ordered its removal or prevention of access to it.
13. The service provider shall not be liable for information provided by the recipient of the service and stored at his request in the memory of electronic devices used for searching for information, if the service provider is not aware of the illegal content of the stored information or of the illegal conduct of the service recipient and takes action to remove the illegal situation without undue delay; however, it shall be liable for such information if the service recipient acts in accordance with its instructions.
14. If the service provider provides information society services within the scope of paragraphs 1, 3, and 4, it is not obliged to monitor information or authorized to search for information that is transmitted or stored. However, if it becomes aware of the illegality of such information, it shall be obliged to remove it from the electronic communications network or at least prevent access to it; the court may order the service provider to remove it from the electronic communications network even if the service provider was not aware of its illegality.
15. According to the aforementioned resolution of the Supreme Court of the Slovak Republic under file number 9Cdo/78/2021: “The provisions of Act No. 22/2004 Coll. may be applied to the defendant’s liability for statements made by other persons published on the website www.otvorene.sk only if it is proven that the defendant is an entity engaged in economic activity. Given that the lower courts incorrectly assessed the nature of the defendant’s activities when applying Act No. 22/2004 Coll., they made an incorrect legal assessment of the application of Act No. 22/2004 Coll. to establish the defendant’s liability. It was not proven that the defendant’s service is provided for a fee, either directly or indirectly, nor was it proven that the operation of its website is an economic activity or that it is operated on a commercial basis, nor that the defendant is remunerated for its operation, the publication of information, and the provision of space for the expression of opinions by visitors to the website, authors of discussion posts, or other income, such as from advertising. It follows from the above that the defendant cannot be considered an entity carrying out an economic activity, and therefore the provisions of Act No. 22/2004 Coll. cannot be applied to the defendant’s liability for statements made by other persons published on the website www.otvorene.sk. However, the above legal conclusion that the provisions of Act No. 22/2004 Coll. cannot be applied to the defendant’s liability does not mean that the defendant is not liable, but that its liability must be assessed on the basis of the general provisions on the protection of personality rights within the meaning of Section 11 et seq. of the Civil Code.
16. It follows from the above that if the operator of an internet discussion forum, social network, or blog, which are intended for contributors to create discussion topics themselves and discuss them freely, operates the aforementioned internet spaces intended for discussion as an economic activity, their liability for the content of the internet spaces in question may be inferred from the relevant provisions of the Electronic Commerce Act. However, the Supreme Court of the Slovak Republic adds that, regardless of whether the operator carries out an economic activity by operating the internet spaces in question, it is still possible to assess the existence of its liability under the relevant provisions of the Civil Code.
17. According to the judgment of the Regional Court in Trenčín under file number 19Co/35/2012 (also issued in the case of Stacho v. Klub Strážov): “In addition to assessing the question of whose rights were infringed by the unauthorized interference, it is the duty of the court to thoroughly examine who committed the interference. Only if it is established that the defendant committed the act which the plaintiff in the proceedings considered to be an infringement of his protected rights and from which he derived his right to protection of personality can the proceedings be successful. These findings are part of the assessment of who has standing in the proceedings. Lack of standing always leads to the dismissal of the motion to initiate proceedings by a decision on the merits. In the case at hand, it is an undisputed fact that the defendant is not the author of the discussion posts in question. The defendant is not the one who caused the infringement of the plaintiff’s personality rights, he is not liable (objective liability regardless of fault) and he does not have substantive passive legitimacy. The defendant did not infringe the plaintiff’s personal rights even by being the registrar and operator of a website that allows third parties, even anonymously, to publish their thoughts and opinions on social and political events in the city of H. T.. In this regard, we can agree with the defendant’s opinion that, in accordance with the Constitution of the Slovak Republic, obligations can only be imposed on the basis of law, and no legal provision can be used to infer the defendant’s liability for the interference with the plaintiff’s personality rights caused by an anonymous discussant. According to the case law of the European Court of Justice, liability “for someone’s unlawful activities cannot be transferred to third parties who have not themselves violated the law.”
18. The Regional Court in Trenčín therefore held that the operator of an internet space intended for discussion is not responsible for contributions by third parties in the internet space it operates, as it is not the operator who infringes the personal rights of the person concerned. Furthermore, in the court’s opinion, there is no legal provision on the basis of which the court could impose any obligations on the operator of an internet space intended for discussion in connection with the infringement of the personal rights of the person concerned by third parties.
19. According to the provisions of Section 13(1) and (2) of the Civil Code:
20. “A natural person has the right, in particular, to demand that unauthorized interference with their personality rights be stopped, that the consequences of such interference be removed, and that they be given adequate satisfaction.
21. If the satisfaction referred to in paragraph 1 appears to be insufficient, in particular because the dignity of the natural person or their standing in society has been significantly diminished, the natural person also has the right to monetary compensation for non-pecuniary damage.”
22. As follows from the grammatical interpretation of Section 13(1) of the Civil Code, a natural person has the right to demand “that unauthorized interference with the right to protection of his or her personality be discontinued, that the consequences of such interference be removed, and that he or she be given adequate satisfaction.” The provision in question does not state that a natural person may seek the fulfillment of the rights set forth therein (similarly, compensation for non-pecuniary damage pursuant to Section 13(2) of the Civil Code) only from the violator of their personality rights.
23. In our opinion, the legislator chose a wording for the provision in question that allows the person concerned to demand the fulfillment of the rights set forth therein from any person who has the possibility to comply with the requested rights. In some situations, it will no longer be possible to demand that the infringer refrain from unauthorized interference with the right to protection of the personality of the person concerned or to remove the consequences of such interference, since interference with the personality rights of the person concerned may be carried out in the Internet space, where only the administrator (usually the operator) can remove posts, or a situation may arise where the infringer forgets their account login details and is unable to retrieve or change them.
24. In modern society, it is therefore desirable to interpret the provisions of Section 13(1) and (2) of the Civil Code (according to a grammatical interpretation, but also an interpretation according to the meaning and purpose of the law) in such a way that the data subject may demand the fulfillment of the rights set forth therein from anyone who is able to fulfill these rights.
25. Our opinion is also shared by Dr. Husovec in his contribution to the internet forum lexforum.sk on the decision of the Regional Court in Trenčín in the aforementioned case of Stacho v. Klub Strážov under file number 19Co/35/2012, in which he states: “(…) Section 13 of the Civil Code conceals the addressee of the removal and restraint claim when it states that ‘a natural person has the right, in particular, to demand that unauthorized interference with the right to protection of their personality be discontinued and that the consequences of such interference be removed’. (…) Broad passive legitimacy in these disputes (and not only in them) is required by everyday reality, where it is often necessary to compel persons who have not themselves acted unlawfully to take certain action in order to achieve effective justice (…). Today, such extended passive legitimacy exists in Slovak law for intellectual property rights infringements, and its necessity is also evident in property rights or the right to protection of personality ( ). Its purpose is to make it possible to oblige persons who have a certain indirect influence on the commission of infringements to achieve a legal status. The current wording of Section 13 of the Civil Code in particular supports this interpretation. Of course, such a possibility must be balanced with the personal freedom of the individual, which cannot be unreasonably and without legal grounds impeded (Article 2(2) of the Constitution).
26. In the next part of the article, we will take a closer look at the aforementioned means of protecting personality rights under the Civil Code.
27. The means of judicial protection of personality under Section 13 of the Civil Code include:
28. negatory action – the right to seek the cessation of unlawful interference,
29. restitution action – the right to seek the removal of the consequences of unauthorized interference,
30. satisfaction action – the right to receive appropriate satisfaction.
31. According to Vozár: “If we consider the specifics of mass media, a negative action is usually only applicable in cases of repeated interference with personality rights. The basic condition for applying this type of action is that the unauthorized interference continues or there is a threat of repetition. In justified cases, if there is a threat of repetition, this form of action may be used.

The same arguments can also be applied to restitution actions. The essence of this action is to remove the source of the consequences caused by the unauthorized interference and thus restore the original state.

In practice, the most commonly used form of action is the action for satisfaction. In all cases where negative and restitution actions do not lead to complete redress for the interference, the subject is entitled to have the court order the infringer to provide satisfaction. Pursuant to Section 13(1) of the Civil Code, this includes, among other things, the legal right to have an apologetic correction published in the press. The form and content of the apology will depend on the court’s assessment of the specific case. However, it is always necessary, with regard to the possible subsequent enforcement of the court’s decision, that this satisfaction be determined and defined in accordance with the findings of fact based on the evidence presented in the court proceedings, taking into account all the circumstances and conditions under which the attack on the plaintiff’s personality occurred.

However, an apology as a form of satisfaction is often insufficient given the intensity of the interference with personal rights. We therefore consider the extension of the possibility of personal protection by Act No. 87/1990 Coll., amending and supplementing the Civil Code, to be very welcome. This amendment to the law guarantees a natural person the right to monetary compensation for non-pecuniary damage if there has been a significant reduction in

‒ the dignity of a natural person,

‒ the reputation of a natural person in society.”

1. In the case of monetary compensation for non-pecuniary damage, it is sometimes argued in practice that this non-pecuniary damage must be quantified. This is, of course, impossible by its very nature, as non-pecuniary damage cannot be precisely quantified. The amount of non-pecuniary damage that the defendant will have to pay will depend on the discretion of the court. The court should take into account, for example, the intensity of the interference with personal rights and the financial circumstances of the interferer.
2. According to Section 16 of the Civil Code: “Anyone who causes damage by an unjustified interference with the right to protection of personality is liable for it in accordance with the provisions of this Act on liability for damage.”
3. In addition to the right to compensation for non-pecuniary damage, the person concerned may also have the right to compensation for damage, i.e., a legal claim for monetary compensation from the infringer, but based on a different legal title.
4. According to Vozár: “Liability for damage and liability for harm have many features in common. As with damage, liability for non-pecuniary harm requires proof of the existence of a causal link between the unlawful conduct of the infringer and the non-pecuniary harm that has occurred as a result.

The tortfeasor’s liability is assessed according to an objective principle (fault is not examined or assumed in any way). The mere threat to the relevant protected rights is sufficient to give rise to liability for harm. It is therefore a so-called private law tort of a threatening nature.

Objective liability for the threat or violation of rights is systemically characteristic of the area of legal protection of personality rights. It is not possible to exculpate oneself from liability for damage, as this option only applies to liability based on fault. The perpetrator is liable for damage regardless of fault or knowledge that their actions violate the law.

Damages must be proven precisely by the courts, while harm only needs to be proven and, depending on the circumstances and specifics of the case, justified. Damages can be quantified precisely, and only in exceptional cases can the court use judicial discretion in awarding damages if it is not possible to determine the exact amount of harm. Unlike a claim for damages, where the compensation awarded compensates in principle for the entire damage caused, the satisfaction provided is to be paid proportionately.

Compensation for damage and harm must be understood differently. They cannot be confused. Appropriate satisfaction is understood as a means of remedying non-material harm, not as compensation for material damage caused. In the case of material damage, the law provides for two means of compensation, namely compensation for damage and the surrender of unjust enrichment. Therefore, it is not possible to allow the entitled party to claim appropriate monetary satisfaction to remedy the material damage incurred.

Adequate satisfaction serves primarily as compensation for non-pecuniary damage, which may also have a pecuniary impact. In the case of a lawsuit, it is necessary for the plaintiff to precisely determine and specify the non-material damage for which he or she is claiming compensation, as well as the facts proving the extent of these non-material losses (degree of aggressiveness of the conduct, duration of the unlawful conduct, repeatability, etc.).“

1. Specifically, a legal entity has the right to protect its good reputation under Section 19c(2) and (3) of the Civil Code:
2. “In the event of unauthorized use of the name of a legal entity, it is possible to seek a court order requiring the unauthorized user to refrain from using it and to remedy the situation; it is also possible to seek appropriate satisfaction, which may also be in the form of monetary compensation.
3. Paragraph 2 shall apply mutatis mutandis to unauthorized interference with the good reputation of a legal entity.”
4. The means of judicial protection of the good reputation of a legal entity under Section 19c of the Civil Code therefore include:

The right to refrain from and remedy the unlawful situation. The claim is directed towards the future and its purpose is to prevent the infringer from further unlawfully interfering with the good reputation of the legal entity. It presupposes the risk of repetition or continuation of the unlawful situation. Together with the claim for refraining from unlawful interference with the good reputation of a legal entity, a claim for removal of the defective situation may be asserted, which is aimed at removing the consequences that have already arisen and is therefore directed more towards the past. However, this is a separate claim, which is similar in nature to a tortious claim for damages in the form of restoration to the original state. It presupposes that the infringer will remedy the defective situation and also remedy its consequences. As a rule, this will not be possible, and therefore the legal entity concerned also has other claims at its disposal.

Claim for adequate satisfaction. An important claim in the event of an unjustified interference with the good reputation of a legal entity is the claim for adequate satisfaction, including monetary satisfaction. When determining this, both the satisfaction and a certain punitive component must be taken into account. As such, however, it should serve to compensate for non-pecuniary damage to a certain extent, and not to eliminate the difficulties in determining the exact extent of the pecuniary damage caused or the extent of the enrichment of the unauthorized user of the legal entity’s name.

1. Of course, even in the case of interference with the good reputation of a legal entity, in addition to the claim for compensation for non-pecuniary damage, one cannot overlook the possible claim for compensation for damage caused by interference with the good reputation of the legal entity.
2. Even in the case of interference with the good reputation of a legal entity in an online discussion forum by persons other than the operator of that forum, we are of the opinion that the person concerned may also claim the fulfillment of rights under Section 19c(2) of the Civil Code from the operator of this internet space.
3. Strictly speaking, this may not be apparent from a grammatical interpretation of Section 19c(2) and (3) of the Civil Code, since:
4. pursuant to Section 19c(2) of the Civil Code, the data subject may claim the rights in question from the “unauthorized user”;
5. Section 19c(3) of the Civil Code stipulates that Section 19c(2) of the Civil Code “applies mutatis mutandis to unauthorized interference with the good reputation of a legal entity”;
6. which, in conjunction with the provisions in question, may also be interpreted to mean that the rights in question may only be claimed from the infringer of the right to the good reputation of a legal entity, since Section 19c(2) of the Civil Code specifies a specific entity with passive legal standing.
7. However, legal norms must also be interpreted according to their meaning and purpose. If, in the case of a natural person, it is permissible to claim the fulfillment of rights under Section 13(1) and (2) of the Civil Code even from the operator of an internet space intended for discussion, who did not himself interfere with the personal rights of the natural person, this must also be permissible by analogy in a similar case concerning a legal entity.
8. Moreover, the word “appropriately” used in Section 19c(3) of the Civil Code may paradoxically extend passive legitimacy to (but not only) the operator of an internet space intended for discussion who has not himself infringed the good reputation of a legal entity. This is because in cases under Section 19c(2) of the Civil Code (unauthorized use of the name of a legal entity), it is clearly appropriate to seek standardized remedies from the specific infringer, whereas in cases of interference with the good reputation of a legal entity, as we have already explained, it will often be necessary to seek nd cooperation from third parties, such as operators of internet spaces intended for discussion. In practice, it will therefore be necessary to extend passive legitimacy from a specific entity under Section 19c(2) of the Civil Code to a general entity so that standardized remedies can also be sought from persons who have not themselves interfered with the good reputation of a legal entity.
9. Interference with the personal rights of a natural person and the good reputation of a legal entity can sometimes be so intense that the use of sanctions provided for by criminal law is appropriate. Intentional interference with the personal rights of a natural person and the good reputation of a legal entity may constitute the factual basis for the criminal offense of defamation under Section 373 of the Criminal Code, which reads as follows:

“Whoever reports false information about another person that is capable of significantly jeopardizing their reputation among fellow citizens, damaging them in their employment or business, disrupting their family relationships, or causing them other serious harm, shall be punished by imprisonment for up to two years.”

1. If the infringement of the personal rights of a natural person and the good reputation of a legal entity does not reach a significant degree of disruption, it may still constitute an offense against civil coexistence under the provisions of Section 49 of the Offenses Act.

Will any legal proceedings be lengthy?

1. An entrepreneur who, for example, faces fabricated attacks in connection with his business, or a natural person about whom false information is spread, for example, in the online space, has a wide range of options to prevent this undesirable situation and reverse its consequences.
2. If out-of-court negotiations with the person infringing on the rights of the affected person are unsuccessful, the affected person will probably have to initiate legal proceedings to stop the infringement of their rights, reversing the consequences of the infringement of their rights, or even compensation for non-pecuniary damage for the infringement of their rights or compensation for damages.
3. However, it is not always true that these types of proceedings take a long time and thus lose their effect. The affected person, about whom, for example, a former business partner has written a misleading review, naturally wants to have it removed from the online space as quickly as possible.
4. In such cases, it is appropriate to consider the use of the so-called urgent measure under Section 324(1) of the Civil Procedure Code: “Before the commencement of proceedings, during proceedings, and after their conclusion, the court may, upon request, order an urgent measure.”
5. The court may thus issue an urgent measure prohibiting the person infringing on the rights of the affected person from continuing the infringement and, if possible, may order them to restore the original state, i.e., the state as if the infringement of the rights of the affected person had never occurred. In certain cases, it will even suffice to issue an urgent measure, and the person concerned will not even be forced to file a lawsuit and spend several years in court.
6. However, when it comes to urgent measures, it is important to bear in mind the key word that is already present in their name. The court may order an urgent measure if it is necessary to immediately adjust the relationship between the parties, which means that the person concerned should not delay in filing a motion for an urgent measure. It is then difficult to justify the need for immediate adjustment if the infringement of their rights occurred some time ago and they did not need to request an urgent measure during the following period.

References

1. Resolution of the Supreme Court of the Slovak Republic under file number 5Cdo/274/2007
2. Judgment of the Supreme Court of the Slovak Republic under file number 1 Cdo 113/2009
3. Resolution of the Regional Court in Bratislava under file number 9Co/75/2019
4. Judgment of the Supreme Court of the Slovak Republic under file number 5 Cdo 126/2009
5. Ruling of the Constitutional Court of the Slovak Republic under file number II. ÚS 224/2016
6. Also
7. Also
8. Also
9. VOZÁR, Jozef. § 11 [Personal Rights]. In: ŠTEVČEK, Marek, DULAK, Anton, BAJÁNKOVÁ, Jana, FEČÍK, Marián, SEDLAČKO, František, TOMAŠOVIČ, Marek et al. Civil Code I. 2nd edition. Prague: C. H. Beck, 2019, pp. 65–66.
10. Ruling of the Constitutional Court of the Slovak Republic under file number IV. ÚS 492/2012
11. Ruling of the Constitutional Court of the Slovak Republic under file number II. ÚS 224/2016
12. Ruling of the Constitutional Court of the Slovak Republic under file number IV. ÚS 492/2012
13. Also
14. CSACH, Kristián. § 19b [Name of legal entity and its good reputation]. In: ŠTEVČEK, Marek, DULAK, Anton, BAJÁNKOVÁ, Jana, FEČÍK, Marián, SEDLAČKO, František, TOMAŠOVIČ, Marek et al. Civil Code I. 2nd edition. Prague: C. H. Beck, 2019, p. 116, marg. no. 8.
15. Česká justice portal. [Supreme Court: The constitutional guarantee of good reputation does not imply the necessity of its legal protection] Available atwww.ceska-justice.cz/2021/12/nejvyssi-soud-z-ustavni-garance-dobre-povesti-nevyplyva-nezbytnost-jeji-zakonne-ochrany/ [points34 to39 of this article].
16. Opinion of the Supreme Court of the Czechoslovak Socialist Republic, ref. no.: Prz 33/67, published in Collection No. III, pp. 181–182.
17. Ministry of Justice of the Slovak Republic. [Delfi AS v. Estonia] Available at www.justice.gov.sk/tlacovespravy/tlacova-sprava-1971/ [points59 to67 of this article].
18. Resolution of the Supreme Court of the Slovak Republic of 31 May 2022, ref. no. 9Cdo/78/2021
19. Judgment of the Regional Court in Trenčín dated April 25, 2012, ref. no. 19Co/35/2012
20. HUSOVEC Martin. [KS Trenčín: Liability of a discussion forum provider for allegedly defamatory posts by third parties]. In: lexforum.sk, Available at: www.lexforum.sk/405
21. VOZÁR, Jozef. § 13 [Legal means of personality protection]. In: ŠTEVČEK, Marek, DULAK, Anton, BAJÁNKOVÁ, Jana, FEČÍK, Marián, SEDLAČKO, František, TOMAŠOVIČ, Marek et al. Civil Code I. 2nd edition. Prague: C. H. Beck, 2019, pp. 84–85.
22. VOZÁR, Jozef. § 16 [Liability for damage]. In: ŠTEVČEK, Marek, DULAK, Anton, BAJÁNKOVÁ, Jana, FEČÍK, Marián, SEDLAČKO, František, TOMAŠOVIČ, Marek et al. Civil Code I. 2nd edition. Prague: C. H. Beck, 2019, pp. 98–99
23. CSACH, Kristián. § 19b [Name of a legal entity and its good reputation]. In: ŠTEVČEK, Marek, DULAK, Anton, BAJÁNKOVÁ, Jana, FEČÍK, Marián, SEDLAČKO, František, TOMAŠOVIČ, Marek et al. Civil Code I. 2nd edition. Prague: C. H. Beck, 2019, p. 115, marg. no. 7.