Being dissatisfied with the quality of the purchased product, a buyer of an online store had published a comment criticizing the seller in the Facebook interest group, among other things, describing the seller's representative in word of non-literary language. Namely, the defendant (buyer) published a comment on the Internet, in which, using vulgarity, he called the plaintiff (seller's representative) by a name that means "liar, chatterbox", because he (the seller) did not fulfil the promise given to the buyer. The persons mentioned in the comment (the commercial company and its representative) appealed before the court with a claim in which they requested to instruct the author of the comment to withdraw it, to apologize to the plaintiffs and to pay compensation for the harm to honour and dignity.

The Senate examined the cassation appeal of the defendant regarding the judgment of the court of appeal, which satisfied the claim. The Senate decided to set aside the judgment of the court of appeal and to refer the case for re-examination.

The Senate gave several considerations which the court should take into account when balancing the interests of protecting the reputation of the entrepreneur and the honour and dignity of a private person and the right of the buyer or recipient of the service to freedom of expression, which in such a situation manifests itself as the right to engage in public debate on an issue that affects many consumers and Internet users.

The Senate pointed out that posting both positive and negative reviews or comments in online social network groups, where interested parties in a field discuss their experiences related to the quality of purchased goods and the availability of service, is acceptable and is recognized as a common and useful practice that serves public interest and the purpose of creating such groups. It follows from case law of the European Court of Human Rights that, in principle, even vulgar and offensive expressions, when used to highlight an idea, emphasize an issue important to society and expressed in an appropriate forum, may be appropriate under the relevant circumstances. Even if someone might consider the use of the expression in question to be indecent, the court should consider how it would be perceived by a reasonable person with an average threshold of sensibility and tolerance.

The Senate pointed out that when assessing whether a comment expressed in a non-literary language has violated a person's honour and dignity, the court should consider whether such use of language might be determined by the specifics of the communication style in the relevant social network and the specific user group. If a critical comment is made on such a platform in relation to certain business practices that may be considered misleading and harmful to their customers, the mere fact that the comment is expressed in a vulgar manner cannot be the sole criterion for recognizing the statement as defamatory.

Moreover, in a situation where the claim has been brought by two persons (a commercial company and a natural person) the violation of the rights of each claimant must be assessed separately, taking into account each claimants specific aspects and assessment criteria.

The Senate has previously recognized that it is important to distinguish whether offensive statements, which can sometimes be expressed as rude phrases, refer to a person's private or family life, or to his/her professional activity, and it is essential to clarify the purpose for making statements public and reasons for choosing offensive statements. In order to provide a sharp and negative assessment of a person, there must be a certain basis, for example, some events or the victim himself/herself performed some actions that created a basis for a specific assessment of his/her personality or activity (in this sense, see also Senate’s judgment in case No SKC-40/2019)

The Division of Case-law and Research states that Senate’s ruling in case No SKC-327/2022 is the first civil case in which correspondence published in a social network interest group, which also uses low-register Latvian language, is assessed. Essential here is case-law finding of the European Court of Human Rights, namely, that language style as a form of expression is part of communication and therefore should also be protected (23954/10). The Senate has previously examined cases in which a plaintiff addresses court requesting to declare as insulting to honour and dignity such statements that include words of non-literary language or that are worded in a derogatory or misleading manner. In various situations, the said statements were made public in the internet media (SKC-40/2019), in a television program (SKC-208/2017), in a newspaper publication (SKC-73/2008) or on the notice board of a residential building (SKC-75/2021).

Senate’s judgement of November 3, 2022 in case No SKC-327/2022 (C33405620)

The information was prepared by the Division of Case-law and Research of the Supreme Court

 

 

Baiba Kataja, the Press Secretary of the Supreme Court

Tel.: +371 67020396; e-mail: baiba.kataja@at.gov.lv