The internet, for better or worse, completely changed the rules of the game of information distribution, as it democratized publication and expanded the variety of means for reaching an unlimited number of people. In the age of private websites, self-posting, blogs, and social networks, individuals may very easily distribute information concerning any other person (no matter whether they are natural or legal persons or public authorities). Thus, the possibilities of harming another’s personality rights through an abusive publication on the Internet have increased. The unequivocal practice is that in case of such violation of rights when the interests of an individual are harmed, compensation for non-pecuniary damages can be sought. It is still debatable whether such compensation can be demanded by legal persons and to what extent the detriment of the interests of companies should be compensated.
Main Views in Case Law
Older European Court of Human Rights (ECHR) case law states that personal rights can by definition belong to individuals only, due to the nature and consequences of the exercise of such rights (since, for example, pain and suffering are inherent exclusively in humans). Gradually, this court practice is changing, whereas the United Kingdom is among the first countries in the European Union to argue that the damage sought in response to harmful information published on the internet corresponds in reality to a commercial loss for legal entities.
The domestic law of many Member States provides detailed regulation on the protection of personality and reputation at the statutory level. Liability for such type of harm is not limited to what is protected by constitutionally guaranteed fundamental rights. Those rules are then, inevitably, applicable to both natural as well as legal persons.
Protection of the personal rights of legal persons leads to (or is necessary for) other rights those persons enjoy, such as the right to property or the freedom to conduct business (and any other rights provided for in international law in the field of protection of rights). Applying this logic, the violation of a company’s rights consisting of harm to their good name and reputation will directly translate into the infringement of their economic rights. Thus, the effective protection of those economic rights also requires the protection of their personal rights.
When comparing the personal rights of individuals and the rights of legal entities, older case law tends to assume that the rights of companies are less important or even non-existent than those of individuals. This view is substantiated by the ECHR with arguments which are summarized as follows: Personality rights as an intrinsic value means that they are worthy of protection in themselves. Personality rights may be seen as an emanation of human dignity. The mere fact of being a human is worthy in itself and by itself of protection. If that notion of personality rights is embraced, then there might indeed be some intellectual difficulty in ascribing such a status to a legal person.
From comparative law point of view, according to German law, the protection of the general personality rights has constitutional roots. Both natural and legal persons are protected. The personality right of the enterprise protects an undertaking’s reputation and its constitutionally guaranteed freedom to engage in business. In France, the case law seems to have accepted that legal persons enjoy certain personality rights, particularly when their honor or reputation is at stake.
In Bulgaria, the deliberate selective and incomplete spreading of allegations, without proper verification of the truthfulness of the information, may cause damages to the interests of the subject, regardless of whether it is a natural or legal person.
According to the Supreme Court of Cassation’s case law, the right of opinion recognized and guaranteed by the Constitution of the Republic of Bulgaria, the exercise of the right of opinion is exercised with the intention to cause damages to the good reputation of third parties, constitutes a misuse of this right. Such guilty conduct of the authors of untruthful, incomplete, and misleading information and statements with specific content, which carry information about specific circumstances or events, determine the engagement of tortious liability.
The Bulgarian courts many times have stated that if such an act is deliberately committed by a subject well-aware that the information presented is false and the fact that this compromising information is consciously brought to the attention of the audience, clearly indicates intent. From an objective point of view, when such acts are committed on the Internet and among an indefinite number of society members outside the virtual space, such conduct unconditionally falls within the constituent elements of defamation under the Criminal Code.
Liability Under the Consumer Protection Laws
Disclosure of statements that are not general and not supported by evidence of the existence of any illegal acts claimed to be performed by a legal entity does not only affect the good name and the commercial reputation of the entity, but it also endangers the interests of an unlimited number of individuals which are by these means misled.
In view of the above, it should be concluded that, although with some hesitation, the Bulgarian case law gradually assumes that protection against damage to the good reputation of a legal entity is possible through:
- Civil court proceedings instituted for compensation claim and tortious liability against the offender;
- Penal court proceedings – if the constituent elements of the crime of defamation and / or insult under the Criminal Code are present;
- Administrative court proceedings before the Consumer Protection Commission, when the interests of consumers are harmed or may be harmed;
- Administrative court proceedings before the Commission for Protection of Competition, if the damages are caused by a competitor.