Sources of lawRight of publicity
Is the right of publicity recognised?
Although there is no legal concept of the right of publicity in Russia, separate elements of the individual’s personality, such as name, pseudonym, voice, image, are protected by law. The right of publicity is related to the right to privacy and protection of the individual’s private life, honour, dignity and business reputation, personal data and image from its unauthorised use.
Russia is still building its court practice on protection of the right to privacy. It cannot yet boast high-profile cases and the amounts of compensation awarded for invasion of the right to privacy cannot be compared with those granted in Europe, even more so in the US.
Most of the privacy protection cases are initiated by the public figures and well-known persons against celebrity magazines and newspapers. The amounts of compensation claimed and awarded in such cases are usually omitted from the court decisions available in the open sources. It is common knowledge that the awarded compensations are not high and are significantly reduced by the court in comparison with what has been claimed by the plaintiff.
In 2017, a court considered a defamation case related to child abuse in a nursery allegedly committed by their nursery teacher. The article describing the events had been rewritten based on another press release and published by the defendant. Nevertheless, editors and journalists are not usually found liable for reproducing articles, and the defendant was found responsible for the claims of the teacher’s violent behaviour in the absence of substantial evidence. In addition, the defendant violated the claimant’s right to using her image because no permission to use her image for the article was given and there was no evidence that the image had this been previously released for use in the public domain.
In a recent case, Case No. 4g-9067/2018, an actress and model filed a lawsuit against a newspaper for the unauthorised use of her photograph, which was taken without her consent in a public place. The Moscow City Court decided that the actress was a public figure and the photograph was lawfully used in an article for a publicly valid discussion. Therefore, the media did not need special authorisation to use her images.
In a similar case, though, the Moscow City Court noted that the public nature of the plaintiff’s profession could not affect the assessment of the defendant’s actions in view of the right to privacy granted by articles 23 and 24 of the Russian Constitution, and did not exempt the defendant from the obligation to obtain prior permission from the plaintiff for dissemination in the mass media of the information about the plaintiff’s private life.
In its recent Ruling No. 274-O, dated 12 February 2019, ‘On the refusal to accept for consideration of the complaints of Sergey V. Bezrukov on the violation of his constitutional rights by article 152.1, paragraph 1 and article 152.2, paragraph 1 of the Civil Code of the Russian Federation’ and the Ruling No. 275-O, dated 12 February 2019, ‘On the refusal to accept for consideration of the complaints of Anna O. Bezrukova on the violation of her constitutional rights by article 152.1, paragraph 1 and article 152.2, paragraph 1 of the Civil Code of the Russian Federation’, the Constitutional Court stated that the publication and use of the image of a citizen without his or her consent is allowed in case of public interest, in particular if the citizen is a public figure (holds a public office or a municipal office, plays a significant role in the public life in politics, economics, art, sports or any other field), and the publication and use of the image is carried out in connection with a political or public debate or interest in the person in question.
However, a person’s consent is necessary if the sole purpose of the publication and use of the image is to satisfy an ordinary interest in his or her private life or to make a profit. At the same time, the ban on the dissemination in the mass media of the information about private life of citizens, if no consent has been obtained from them or their legal representatives, does not apply only to cases when it is necessary to protect public interests, and the public interest should not include any interest shown by the audience, but, for example, the need of society to detect and disclose a threat to the democratic state of law and civil society, public safety and the environment.
The Constitutional Court also noted that the said conditions of disclosure and use of the image of a citizen (taking into account the absence of differences between the ways (forms) of dissemination of information about the person’s private life) are applicable not only in case of publication of such citizen’s images but also the information about his or her private life in mass media, including In online publications, without the consent.Principal legal sources
What are the principal legal sources for the right of publicity?
There are a number of international and federal laws that regulate the right of publicity. Among the international treaties are the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms.
On a domestic level the following apply.
- Article 23 of the Constitution guarantees the right to privacy, personal and family secrets, protection of honour and reputation. Other guarantees include the right to privacy of correspondence, telephone, telegraphic and other communication. Restriction of such rights is only possible on the basis of a court decision.
- Article 24 of the Constitution prohibits collection, storage, use and dissemination of information about an individual’s private life in the absence of his or her permission. The Russian Civil Code regulates non-material values and their protection. Article 19, paragraph 4 of the Civil Code provides that a person’s name or pseudonym can only be used with the individual’s consent by third parties in their artistic, business or other activity in ways that exclude confusion of the person’s identity, as well as abuse of rights in other forms.
- Article 150 of the Civil Code lists among non-material values, life, health, human dignity, personal inviolability, honour and good name, business reputation, privacy, security of residence, personal and family secrets, freedom of travel, freedom of residence, name of the individual, authorship, and other non-material values that belong to a citizen naturally or by operation of law and are inalienable and non-transferable. Honour, dignity and business reputation are protected under article 152 of the Civil Code, whereas the right to one’s image is protected under article 152.1 of the Civil Code. All provisions of article 152 equally apply to legal entities in the same way as to physical persons, except for the ability to claim moral damages. Article 152.2 protects a person’s private information from collection, storage and distribution, unless it is done through governmental or public interest or the information was revealed earlier by the person voluntarily.
- Article 1265 protects the author’s right to use or authorise the use of a work under his or her name, under a pseudonym or anonymously. In accordance with article 1315, paragraph 1, sub-paragraph 1 of the Civil Code, an artist has the exclusive right to performance, including her image and voice. The artist is entitled to exercise his or her right and prohibit third parties from using the recording of the performance or give authorisation to such use.
- Article 3, paragraph 7 of the Law on Information, Information Technologies and Protection of Information provides for the right of privacy, prohibition of collection, storage, use and dissemination of information of private nature without the individual’s permission.
- Article 49 of the Law on Mass Media requires that a journalist obtain a person’s consent or a consent of his or her representatives for disseminating information of a private nature, except for the cases when such dissemination is necessary in the public interest.
- The Law on Data Protection in article 6, paragraph 1 allows collection and processing of personal data only with the holder’s consent.
- Article 128.1 of the Criminal Code provides for liability for defamation: depending on the aggravating circumstances, the violator would have to pay a fine up to 5 million roubles or compulsory community service of up to 480 hours. Criminal liability does not exclude the possibility of a civil lawsuit, which allows the claimant to receive compensation for financial and moral damages as well as demanding the refutation and removal (from the online media source) of discrediting information.
How is the right enforced? Which courts have jurisdiction?
Legal entities and individuals that believe that their right has been violated are entitled to initiate court proceedings against the infringer, and claim an injunction against the infringer and compensation.
Courts of general jurisdiction and commercial (arbitration) courts both have jurisdiction. Cases involving individuals are tried by the courts of general jurisdiction. As regards cases involving legal entities, jurisdiction will depend on the nature of the claim and the sphere of the claimant’s activity.
As prescribed by sub-paragraph 7, paragraph 6, article 27 of the Arbitrazh Procedure Code, cases on protection of business reputation in the sphere of business and other economic activity fall under the jurisdiction of commercial (arbitration) courts.
In accordance with article 152 of the Civil Code, an individual is entitled to claim refutation of information discrediting his or her honour, dignity and business reputation if a person disseminating such information does not prove that it is true. Defamatory information disseminated in the mass media must be denied in the same mass media. In addition to the refutation and publication of a response to the defamatory information, the individual is entitled to claim damages.
As with individuals, legal entities are entitled to protect their business reputation even if their firm name was not mentioned in the false publication. In its ruling ‘Review of court cases on resolution by the courts of the disputes of protection of honour, dignity and business reputation’, dated 16 March 2016, the Presidium of the Supreme Court of the Russian Federation stated that dissemination of false information about the trademark under which the plaintiff’s products are manufactured derogates the plaintiff’s business reputation even if the plaintiff was not referred to in the publication. Absence of the plaintiff’s name in the publication does not exclude the negative effect of the statement towards the plaintiff. A trademark is a designation used for individualisation of legal entity’s goods and, thus, inextricably connected with the person who manufactures the goods branded with the trademark. Therefore, dissemination of false information regarding the trademark derogates the business reputation of the manufacturer and trademark owner and results in loss of the customer’s interest in its goods and occurrence of loss.Other relevant rights
Are there other rights or laws that provide a claim based on use of a person’s name, picture, likeness or identifying characteristics?
Article 19, paragraph 4 of the Civil Code prohibits use of the person’s name or pseudonym if it results in passing-off, regarding the identity of the persons and abuse of rights in other forms.
- Article 1483, paragraph 9, sub-paragraph 2 of the Civil Code prohibits registration as trademarks of designations identical to the name, pseudonym or the derivative therefrom, portrait or facsimile of a person well known in Russia (as of the date of the trademark application) without such person’s consent.
In its ruling in Case No. SIP-1010/2014 on annulment of the ZEGNA trademark registration, the IP Court concluded that the claimant failed to prove its interest in filing claims under article 1483(9)(2). That article provides that only an interested party, such as the well-known person, or his or her heirs, can object to trademark registration on these grounds. However, the claimant was neither related to nor represented Ermenegildo Zegna or his heirs but was another company. Furthermore, the claimant did not prove that the surname of the Italian fashion designer was well known and not merely a fictional name for the benefit of Russian consumers.
Existence of rightProtectable aspects
What aspects of a person’s identity are protectable under the right of publicity?
Under the right of publicity, aspects of a person’s identity such as their name and pseudonym, image, personal data, honour, dignity and business reputation, as well as private life, are protected.
Russian law does not regulate use of an individual’s voice, per se. A voice can be protected as an element of an artist’s performance.
In Ruling No. 25 of 23 June 2015, the Presidium of the Supreme Court of the Russian Federation stated that in accordance with article 152.1 of the Civil Code, an individual’s consent for publishing and further use of his or her image is not required when the image is used, inter alia, for state, social and other public interests.
Public interest occurs when a person is a public figure (eg, holds a state or municipal position, plays a significant role in public life in the sphere of politics, economics, art, sports, etc), and publishing and use of his or her image relates to political or public discussion, or the interest in such a person is publicly important. Publication of photographs and information about the person’s private life, with the only purpose being to satisfy the readers’ curiosity regarding the particulars of the individual’s private life, cannot be considered as a contribution to publicly important discussion, even if the individual in question is a well-known figure.
In 2016, Case No. 33-654/2016 of the Supreme Court in Mary-El Republic, publication of a comical photograph of the mayor of Yoshkar-Ola without his authorisation was considered lawful because he was the object of public political discussion and the photograph was not deliberately retouched to offend him or harm his reputation.
In the same ruling, the Supreme Court stated that the individual’s consent is not required if his or her image is not a main object of use and the photograph depicts information in the public domain. As a rule, if people depicted in it clearly expressed their consent to the photograph being taken and did not prohibit publication and use of the photograph, one of them is entitled to publish and use the photograph without additional consent from the others, except if such a photograph contains information on their private lives.
Certain laws contain stricter regulations with respect to publishing in relation to minors. Article 4, paragraph 6 of the Law on Mass Media prohibits publication in mass media and telecommunication networks information on a minor suffering as a result of unlawful acts, which includes his or her name, surname, photograph and video images, his or her parents and other legal representatives, date of birth, recorded voice, place of residence or location, school or work and other information that would allow the minor to be identified.
A legal entity can initiate a legal proceeding against the person who disseminated false and defamatory information relating to such a legal entity, including against members of their governing bodies. If defamatory information is published against the chief executive officer of a business, such an action is deemed to be aimed at the business because the reputation of its manager is inseparably associated with the business that he or she runs. It is noteworthy that a person who has published such information can be brought to administrative responsibility by the chief executive officer and not the organisation. Article 5.61 of the Administrative Code provides for liability for derogation of honour and dignity expressed in indecent form.
Do individuals need to commercialise their identity to have a protectable right of publicity?
No. Russian law does not require that individuals commercialise their identity to have their right of publicity protected.Foreign citizens
May a foreign citizen protect a right of publicity under the law of your jurisdiction?
Yes. Any person whose right of publicity has been violated in Russia is entitled to protection.Registration requirements
Is registration or public notice required or permitted for protection of the right? If so, what is the procedure and what are the fees for registration or public notice?
No. Neither registration nor public notice is required for protection of the right of publicity.Protection after death
Is the right protected after the individual’s death? For how long? Must the right have been exercised while the individual was alive?
In general, the period of limitation does not apply to the claims on protection of non-material values. Non-material values of the deceased person can be protected by his or her heirs and other interested persons. In the absence of heirs, consent to publication of the individual’s image is not required.
There is no legal requirement that the right must be exercised during the individual’s life in order to be protected after his or her death.
Ownership of rightTransferring
Can the right be transferred? In what circumstances?
Under Russian law, non-proprietary right and non-material value are non-transferable and inalienable.Licensing
Can the right be licensed? In what circumstances?
Generally, unless the name or image are registered as trademarks, they cannot be licensed under Russian law. Article 1265 does not allow the author to transfer or license the right to his or her name. Article 19 of the Civil Code allows an individual to grant the right to use his or her name and pseudonym to third persons in artistic, entrepreneurial or other economic activity provided there is no confusion regarding the individual’s identity or other abuse of right. Such an individual’s consent is granted by way of a contract, which can be with or without charge.Infringement
If the right is sold or licensed, who may sue for infringement?
As indicated in question 10, non-proprietary right is non-transferable. Therefore, only the owner of such a right, his or her heirs and other authorised or interested persons are entitled to sue for moral damages.
If the individual’s name used by the third parties is distorted or used by means or forms that derogate his or her dignity, honour or business reputation, the individual is entitled to claim refutation refutation and, as well as compensation for moral injury.
If the element of personality is a registered trademark, the exclusive licensee is entitled to sue for infringement.Post-mortem rights
If post-mortem rights are recognised, are they limited to natural heirs or can they be enforced under a contract by an assignee or left to an entity?
By virtue of article 1112 of the Civil Code, a personal non-proprietary right and other non-material value cannot be inherited. At the same time, article 150, paragraph 2 of the Civil Code provides that the non-material values of the deceased person can be protected by his or her heirs and other interested persons.
Article 1483, paragraph 9, subparagraph 2 of the Civil Code provides that designations identical to the name, pseudonym or their derivative, portrait, facsimile of the well-known person can only be registered with the consent of such a person or his or her heirs.Recommended actions
Are there any actions that rights owners should take to ensure their rights are fully protected?
A personal non-proprietary right is protected permanently for individuals at birth. Unless the name, pseudonym or image has been registered as a trademark, the right owner need not take action to ensure their protection.
What constitutes infringement of the right?
Because the right of publicity consists of a number of elements, different actions can be deemed infringement depending on which element is infringed.
In accordance with article 152.1 of the Civil Code, publication and further use of the individual’s image, including his or her photograph, recorded voice or fine art, in which he or she is depicted without consent, are considered an infringement.
Infringement does not occur when:
- the image is used in the state, social or other public interests;
- the image is taken in public places or during public events, with the exception of when such an image is the principal object; and
- an individual participated as a model for payment.
In 2015, the Court of the Krasnoyarsk Region clarified in Case No. 33-72/2014 how exceptions applied to images taken at public events. The plaintiff filed a lawsuit for infringement against a dental clinic for using her image in the dental clinic’s advertising. Her photograph was taken at her wedding by a professional photographer. In its defence, the defendant stated that because there were two other women in the photograph, the plaintiff’s image was not the principal object of use. However, the court ruled against the dental clinic and noted that even though the picture was taken at a public event, the close-up shot allowed the plaintiff to be identified.
In 2017, the Court of the Novosibirsk Region held in Case No. 33-6812/2017 that installation of surveillance cameras in a car park did not infringe the right of the claimant because the car park is an open public space.
Article 152 of the Civil Code grants protection to anyone who suffered from information discrediting their honour, dignity or business reputation. Any dissemination of such information is illegal unless the person who disseminated it proves that it corresponds to reality. In order to be qualified as an infringement, the disseminated information must be defaming and false.
In Case No. 4g-8721/2017, the Moscow City Court held that publishing an article containing information that serves the public interest and aims to attract the attention of public enforcement bodies cannot infringe the claimants’ interest. However, that did not extend to the photographs of the claimants used by the newspaper without authorisation.
Article 152.2 of the Civil Code grants legal protection to a private life. In 2017, a famous person filed a lawsuit against a newspaper for publishing an article about his family without obtaining his prior consent. The Moscow City Court upheld the claim in Case No. 4g-6458/2017 in part and awarded moral compensation.
In accordance with article 1483, paragraph 9, subparagraph 2 of the Civil Code, registration and further use of a trademark identical to the name, pseudonym or any designation that is derivative therefrom of a person well-known in Russia without his or her consent constitutes infringement of right.
Any disclosure and dissemination of personal data that is protected by virtue of article 7 of the Law on Personal Data without the owner’s consent is qualified as infringement.Excluded formats
Are certain formats of intellectual property excluded from claims based on the right of publicity? What is the legal basis of the exclusions?
News, biographies, documentaries and other publicly available information is excluded from claims based on the right of publicity. If such information disparages a person’s honour, dignity and business reputation, he or she is entitled to protect his or her right under article 152 of the Civil Code.
Another format excluded from rights of publicity claims is parody. In Case No. 4g/8-7212, the plaintiff, a famous Russian singer, filed a claim for infringement of his right to the image in a film. However, the Moscow City Court, in its cassation ruling, dated 3 October 2014, agreed with the defendant that for the portrayal of the singer in the film his image, photographs or voice recordings were not used. The court also stated that the character used in the film had all the features of parody and, therefore, the singer’s consent was not required. The role of the singer was played by the actor made up to have similarities with the plaintiff but that did not prove that the actor’s image was used. However, if a parody or cartoon discredits the honour, dignity or business reputation of the author of the original work, she or he can protect it according to article 152 of the Civil Code.Infringement claim requirements
Is knowledge or intent to violate the right necessary for a finding of infringement?
Knowledge or intent to violate the right is not necessary to find infringement. However, when determining the amount of compensation for moral damage, the courts take into consideration the degree of guilt and other mitigating circumstances.
In Supreme Court Decree No. 3, dated 24 February 2005, concerning ‘Court practice on cases on protection of honour, dignity and the business reputation of citizens and legal entities’, the Court noted that meritorious circumstances may include the character and content of publication, as well the degree of distribution of disinformation.
Above all, the Supreme Court noted that the infringement claim can be filed even when it is impossible to determine the identity of the infringer (ie, when the information was delivered by anonymous correspondence or spread on the internet).Liability of media
Does liability extend to media publishing content created by an advertiser and website operators publishing posts by third parties? Does republishing or retweeting or other social media propagation of existing content give rise to liability?
Yes. Liability extends to media publishing content created by an advertiser and website operators publishing posts by third parties. In Decree No. 58, dated 8 October 2012, the Plenum of the Supreme Commercial Court stated that the distributor may be held liable for distributing unfair or false advertising together with the advertiser if the distributor requested proof from the advertiser that the information contained within the advertisement complies with Russian law, or if such a proof has been requested but has not been received and still published.
Grounds for advertising to be qualified as unfair is denigration of a person’s honour, dignity or business reputation, including the business reputation of a competitor. Such advertising can be qualified as a violation of the Law on Advertising in accordance with article 14.3 of the Code of Administrative Offences. Moreover, when such information is spread beyond advertisement (ie, product packaging) the distributor may be liable for unfair competition under article 14.33 of the Code of Administrative Offences.
The parties responsible for spreading the contested information may include the media as a legal entity or, in the absence of the publication’s author, the editor. The creator of the mass media is liable when the media does not exist in a form of a legal entity.
However, republishing or retweeting other people’s content in the form of a citation or with the reference to the original source will not give rise to liability.
Article 1253.1 of the Civil Code states that a party responsible for data transfers on the internet, or a party facilitating the data transfer or access to the data (the intermediary) can be liable for the infringement of intellectual property rights, including the non-proprietary right of an author to his or her name, unless the case falls under exclusive circumstances. Such circumstances include:
- where the intermediary neither initiated the transfer, nor determined the data receiver;
- where the intermediary did not alter the transferred data, apart from the changes necessary for facilitating the technical process of the transfer; and
- where the intermediary did not, and had no knowledge that, the use of the data in question infringed the intellectual property right.
If the published content has be delivered, a warning letter from the right holder will demand the intermediary take necessary measures to stop the infringement in a timely manner. Even if the intermediary is not liable for the infringement of the intellectual property right, the right holder can put forward a claim for inter alia removal of the infringing data or restriction of access to it.
What remedies are available to an owner of the right of publicity against an infringer? Are monetary damages available?
The remedies available to an owner of the right of publicity are compensation of damages, compensation of moral damage, refutation of information, publication of the victim’s response, taking down infringing articles or information, including on the internet, seizure and destruction of tangible media, and prohibition of exploiting image. Unlike physical persons, legal entities are not entitled to claim moral damages.
Under article 1251 of the Civil Code, in the case of violation of non-proprietary right, the aggrieved party is entitled to the following remedies of general nature:
- recognition of the right;
- restoration of the position that existed prior to the violation of the right;
- suppression of actions violating the right or creating the threat of infringement thereof; and
- compensation of damages or moral damage and publishing the court’s ruling on the infringement committed.
If a person has had a moral damage inflicted in the form of physical or moral suffering by actions that violated his or her personal non-material right, the court may impose the payment of monetary compensation for such a harm.
Russian law also provides for special remedies. In cases of unauthorised publication and dissemination of information about a person’s private life, the infringed party may file a request with the court for the removal of such information and cessation of its further dissemination by means of seizing and destroying copies of the tangible media that contain such information.
If the false information is available on the internet, the owner of the website who posted information on it is obliged to delete it by the request of the infringed party.
One of the special remedies for unauthorised use of one’s image is withdrawal from circulation and destruction of all copies of tangible media that contain such an image without compensation.Time limits
Is there a time limit for seeking remedies?
Under article 208 of the Civil Code, the statute of limitations does not apply to the claims on the protection of personal non-proprietary right and non-material value. However, in accordance with article 152 of the Civil Code, claims for dissemination of information defaming one’s honour, dignity or business reputation in the mass media can be brought only within one year of the date of publication.Attorneys' fees
Are attorneys’ fees and costs available? In what circumstances?
In its Decree No. 1, dated 21 January 2016, ‘On Certain questions of application of legislation concerning recovery of attorneys’ fees’, the Supreme Court clarified that the limits of recovering attorneys’ fees are considered reasonable if such fees are usually charged in similar cases for similar services.
However, judges adopt a conservative approach to the recovery of attorneys’ fees. Mostly, the courts significantly reduce the amount of claimed attorneys’ fees at the respondent’s action or on their own initiative.Punitive damages
Are punitive damages available? If so, under what conditions?
Russian law does not provide for punitive damages in the same way as in the common law jurisdictions. However, Russian law does allow the possibility of imposing compensation in addition to damages.
Article 1064 of the Civil Code stipulates that law or contract may obligate the inflictor of injury to repay to the aggrieved persons compensation over and above the damages compensation. The law may establish that the person who did not inflict the harm to pay to the aggrieved persons compensation in excess of the compensation for harm.
Parties to the contract may include a compensation payment clause in addition to the payment of damages prescribed by law. Such a clause is called the ‘penal sum’.
The Russian legal system provides for two types of compensation prescribed by law, including compensation of moral harm and compensation of lost profits in case of unjust enrichment.Preliminary relief
Is preliminary relief available? If so, what preliminary measures are available and under what conditions?
Preliminary relief is available only in the arbitration proceedings. Preliminary relief is aimed at securing the plaintiff’s property interests prior to filing a claim.
In the courts of general jurisdiction, preliminary relief is not available. However, it is possible to secure a claim after filing a statement of claim with the court. The judge and parties to the case are entitled to take measures securing a claim at any stage of the proceeding if failure to take such measures affects or makes the execution of the court ruling impossible.Damages measures
What are the measures of damages?
The amount of compensation for moral damages must be reasonable, fair and proportionate to the consequences of damage. Russian civil law provides for a broad criterion for assessing the amount of compensation to be awarded for moral damage. At the same time, the amount of compensation must be proportionate to the harm inflicted and must not limit the freedom of the mass media.
Russian courts usually take into account the nature and content of the disputed publication, method and duration of dissemination of false information, the degree of its impact on forming negative public opinion about the person on whom the damage is inflicted and other negative consequences, sometimes including the individual’s circumstances (such as age and health). In determining the damages, the courts also take into consideration the minimum wage amount of the particular area.Significant case law
What significant judgments have recently been awarded for infringement of the right?
In 2014, the Moscow City Court held that uploading of images on social media did not exclude the necessity to obtain the owner’s permission for further use. In Case No. 33-10144, the plaintiff, a famous Russian singer, filed a lawsuit for privacy right violation against the newspaper Express Gazette. In its defence, the defendant claimed that the images were posted by the plaintiff himself on his personal account with Russian social network VKontakte and on Instagram. In its ruling, dated 28 March 2014, the Court did not accept the defendant’s arguments and awarded compensation of moral damage to the plaintiff.
A plaintiff filed a lawsuit against a photographer when she found her picture in an online photo bank. The picture was taken during her holiday without her consent for further use of her image. The defendant’s defence argument was that the plaintiff’s face was covered with glasses and a hat, therefore she could not be identified. However, the Court of the Altay District, in its Ruling No. 33-3897/2013, dated 21 May 2013, ruled that the picture was not only an image of the face but rather an overall look.
In what forum are right of publicity infringement proceedings held?
Generally, claims are filed in the court at the defendant’s location or place of residence. If the defendant’s location is unknown, the claim may be filed at the location of the defendant’s property or at his or her last-known residence in Russia. When a claim is brought against multiple defendants located in different places, the plaintiff has the option of choosing the court in the location of any of the defendants.
Claims for personal data violation, in particular with regard to compensation for losses and compensation for moral harm, may also be filed with the court at the place of the plaintiff’s residence.
To enforce the right to be forgotten, the claim may be filed in the court at the plaintiff’s place of residence.Use of juries
Are disputes decided by a judge or a jury? Are damages determined by a judge or a jury?
The disputes are decided by a judge. The Russian court system does not recognise jury proceedings in civil cases. Jury court trial is only possible in criminal cases.Applicable law
How is the choice of applicable law determined?
With respect to the infringement of the right of publicity, the applicable law is determined by the personal law of an individual. Under article 1195 of the Civil Code, the personal law of a natural person is determined by the law of the country of which the person is a citizen.
If, apart from being a Russian citizen, a person also has foreign citizenship, his or her personal law will be deemed Russian law. If a foreign citizen has a place of residence in Russia, his or her personal law will be deemed Russian law.
The Civil Code provides for conflicts of law rules when determining the applicable law of an individual to name.
Article 1198 of the Civil Code stipulates that ‘an individual’s right to a name, and the use and protection of a name shall be determined by his or her personal law, except as otherwise required by the present Code or other laws’.
On 22 July 2015, the Moscow City Court applied Russian law based on the personal law of the foreign defendant and ruled in her favour enforcing her right to a name in Case No. 33-22427/2015. The plaintiff initiated a lawsuit for infringement of her right to the last name, asking the court to oblige the defendant to change her last name and award compensation of moral damages. The plaintiff has stated that the defendant changed her name to the same as the plaintiff’s and represented herself as a spouse of the plaintiff’s husband.Consideration of foreign decisions
To what extent are courts willing to consider, or bound by, the opinions of other national or foreign courts that have handed down decisions in similar cases?
In Russia, court decisions are not officially considered to be sources of law as they are in the common law states, and court decisions are not considered to be binding precedents for future cases. However, the decisions of higher courts are not irrelevant in ascertaining the law. Constitutional Court rulings on law interpretation are mandatory to all courts, federal and municipal authorities, legal entities and citizens. With regard to rulings issued by the Supreme Court, the lower courts consider them as guidelines for adjudicating similar cases.
In accordance with the Supreme Court Ruling No. 3, dated 24 February 2005, which follows ratification of the European Convention for the Protection of Human Rights and Fundamental Freedoms, when deciding on protection of honour, dignity and business reputation, the Russian courts have to take into account the interpretation of the Convention.Appeals
What avenues of appeal are available in main proceedings or preliminary injunction proceedings? Under what conditions?
A statement of appeal can be filed within one month of the decision of the court of first instance being issued and before it comes into legal force. A cassation appeal is filed with the court of third instance within two months of the date of the appellate ruling. The judgment of the cassation court may be further challenged in the supervisory instance of the Supreme Court.Average cost and time frame
What is the average cost and time frame for a first-instance decision, for a preliminary injunction, and for appeal proceedings?
It is difficult to provide average costs as attorneys’ fees vary quite significantly depending on the recognition, experience and reputation of an attorney.
The costs of a Russian attorney’s services may vary from US$5,000 to US$15,000 for a reputable law firm in a court of first instance. Celebrities or public figures prefer to seek legal advice and further representation from the most recognised attorneys whose fees are significantly higher than average.
It is also an established practice to charge a 10 per cent contingency fee.
The approximate time frames are between two and three months with a court of first instance, and up to two months with a Court of Appeal.
Updates and trendsKey developments of the past year
Are there any emerging trends or upcoming legislation regarding the right of publicity in your jurisdiction?Key developments of the past year 32 Are there any emerging trends or upcoming legislation regarding the right of publicity in your jurisdiction?
It remains difficult to win the defamation cases due to the formalistic approach of the Russian courts. In most cases, the information is considered to be of ‘subjective’ nature (ie, mere expression of a person’s opinion and not stating facts). There is still a rather small number of cases for protection of right of publicity being filed with and considered by the courts. There are even fewer cases in which the courts ruled in favour of the plaintiff. We do not see any trends to the contrary.