Injury to reputation and honour has become quite a frequent phenomenon in our society and in everyday life, especially in today’s world of digitalization, social networks, and times when information travels “at the speed of light”. Therefore, the question needs to be asked of what honour is, what reputation is, which ways does injury to each of them come about, and what are the methods in which they can be protected?
I The concept of honour and reputation
The Constitution of the Republic of Serbia prescribes that human dignity is inviolable and that everyone is required to respect and protect it, while Article 198 of the Law of Contracts and Torts prescribes:
“Whoever insults another person’s honour, or whoever utters or conveys false statements concerning another person’s past, knowledge and ability, or concerning anything else of the kind, although being aware, or should have to be aware, that these are untrue, thus causing material damage to such person, shall be liable for damages.”
Honour is a set of non-material values that every person owns. It is a subjective category, which represents a set of person’s values, and the opinion that that person has about themselves – honour concerns our inner feeling of self-worth.
Reputation is a set of non-material values which a person has acquired through their work, lifestyle, and behaviour among people, in their environment. Therefore, reputation represents other people’s opinions and perceptions of that person.
Honour and reputation can be injured by uttering false statements concerning another person’s past, profession, ability, or anything else which may damage the value of that person in the eyes of others or in their own eyes. However, a person that caused the injury will not be liable if they have mistakenly believed that the uttered information was true.
II Types of damage in the event of injury to honour and reputation
There are two types of damage that can occur due to injury to honour and reputation. The first is material damage – which concerns the person’s financial loss, such as loss of job, reduction of income, expenses incurred through paying for the “use” of legal protection. And the other is far more frequent – non-material damage occurring due to suffered mental anguish or fear that the person is enduring for knowing that falsehoods about them are being uttered. In fact, non-material damage consists of the person’s emotional and psychological suffering.
In the event of injury to honour and reputation the court may order, at the expense of the tort-feasor (the person uttering false statements), that the sentence, namely the correction, be made public, or it may order that the tort-feasor take back the statement causing the violation, or order something else which would reach the purpose, otherwise apt to be achieved by indemnity (Article 199 of the Law of Contracts and Torts).
However, in practice, proceedings are most often conducted for indemnity of non-material damage in the form of monetary compensation for suffering mental anguish.
The Law of Contracts and Torts prescribes that for mental anguish and fear suffered for offended honour and reputation, the court shall, after finding that the circumstances of the case and particularly the intensity of pains and fear, and their duration provide a corresponding ground thereof, award equitable damages, independently of redressing the property damage, even if the latter is not awarded.
The same law prescribes that the court shall, in deciding on the request for redressing nonmaterial loss, as well as on the amount of such damages, take into account the significance of the value violated and the purpose to be achieved by such redress, but also that it does not favour ends otherwise incompatible with its nature and social purpose.
The court will award a certain monetary amount should it find that the circumstances of the case, and in particular the severity of the pain and fear and their duration should provide suitable grounds thereof – which is at the judge’s discretion. The judge will, taking into consideration the particularities of each individual case, evaluate independently, at his or her own discretion, whether the injured party has endured emotional anguish – and subsequently balance whether and in what amount to award damages to the injured party.
An example from the case law of the First Basic Court in Belgrade (from the statement of reasons):
An example from the case law of the First Basic Court in Belgrade (from the statement of reasons): “The court hereby decides that the claim is groundless, concluding that that the statements from the defendant are insufficient as to cause non-material damage for the injured party in the form of mental anguish due to injury to honour and reputation, for which the liability of the defendant could be established…
Taking into consideration all of the circumstances of the case, the contents of the subject statements, the fact that the injured party states her political views publicly, and herself uses harsh and offensive words when commenting on other people, that the statements were given on a social network where both disputing parties happen to be especially active, and that they were generated as a response to the change in political views of the injured party, grounds for compensation for damages are unfulfilled…”
Hence, for the injured party to be entitled to compensation for damage it is necessary to prove the existence of proximate cause between the harmful event, i.e., statement on the one hand, and the incurred damage, i.e., endured mental anguish, on the other hand.
In practice the existence of proximate cause is most often proved by the statement of the injured party themselves, explaining in detail to the judge how he or she was feeling due to the uttered falsehoods. According to case law, the injured party often feels ill, sad, worried, family members and friends are asking questions regarding the uttered statements which makes him or her feel even worse. Should the injured party have children – they often become “targets” of their peers due to the “epithets” stuck to their parent, i.e., injured party – making the mental anguish of the injured party even more intensive.
An example from the case law of the First Basic Court in Belgrade (from the statement of reasons):
“…in which statement there was talk of the injured party’s behaviour in the Assembly of the City of Sombor, where the injured party was called a liar and a person that is potentially financed by people who wish ill upon the city of Sombor. These types of statements, in view of the court of first instance, undoubtedly represent insults at the expense of the injured party, having in mind that the injured party, who is a councillor in the Assembly of the City of Sombor, is an associate University professor and a doctor of philosophy enjoying an exceeding reputation in the city of Sombor, and both statements are capable of causing injury to honour and reputation of the injured party, seeing as how these statements are prejudicial to the integrity of the injured party, as is her professional and political engagement within her community.
…The injured party was called by her family members and friends regarding the published article as they were concerned and confused by the statement, with the injured party thereby suffering severe mental anguish, fear, and embarrassment…”
III Actual court jurisdiction and deadline for protection
A damage claim against a person that has uttered false statements is to be filed before the court on the territory of the defendant’s residence, i.e., habitation, or the court on which territory the wrongful act was committed.
The claim is to be filed within 3 (three) years from the date when the injured party had become aware of the damage or aware of the person that caused the damage. With the passing of 5 (five) years from the date that the damage had occurred, the right to protection of honour and reputation ceases due to the statute of limitations.
