OOO MEMO v. RUSSIA JUDGMENT
factory to win the call for tender, and that the subsidy transfer had been
suspended solely because the budget limit for subsidies had been exceeded.
11. The applicant company argued that the impugned statements were
Mr S.’s value judgments based on his opinion rather than statements of fact.
It further argued that the impugned publication had touched upon a matter of
public concern, in particular, the complex relations between the regional and
municipal authorities. The applicant company insisted that the impugned
statements had not been offensive, had not represented a gratuitous attack on
any particular official of the Administration of the Volgograd Region, and
had not exceeded the limits of acceptable criticism in respect of the latter,
that, being a body of the executive, should display a higher degree of
tolerance towards such criticism than private individuals.
12. On 8 April 2009 the Ostankinskiy District Court of Moscow (“the
District Court”) examined the case on the merits. It noted that, by virtue of
Article 152 of the Civil Code of Russia, in defamation proceedings a claimant
carried an obligation to prove a fact of dissemination of the information and
its nature, whereas a defendant was under an obligation to prove the accuracy
of that information.
13. The District Court held as follows:
“On 1 July 2008 an article entitled ‘[Mr S.]: the Mayor’s Office of Volgograd fell out
with the Administration of the Volgograd Region over a bus factory’ authored by
Mr [S.] was published on [the applicant company’s] Kavkazskiy Uzel. In the article the
author reached a conclusion about an economic nature of the conflict between the
Mayor’s Office of Volgograd and the Administration of the Volgograd Region, the
reason for which had been lobbying by the Administration of the Volgograd Region of
the Volzhanin factory’s interests in a call for tender, and the suspension of allocation of
subsidies to the Town of Volgograd from the regional budget as an act of revenge for
the lost call for tender. The defendant has not contested the fact that the impugned
information was published. It has only argued that the expressions in question were not
statements of fact, but value judgments. However, the court considers that the defendant
had disseminated statements of fact in the form of affirmations that the Administration
of the Volgograd Region had lobbied the Volzhanin factory’s interests. Lobbying, in its
essence, implies someone’s intent to create advantageous conditions for one person in
comparison with the others. In other words, it means to incline a person or a State body,
through the use of unlimited resources for achieving the aim pursued with a view to
creating a priority for someone over the others.
Despite the fact that the author is using such an expression as ‘it appears to me’, he is
affirming that the suspension of allocation of subsidies to the Town of Volgograd is an
act of revenge by the Administration of the Volgograd Region.
Allegations of lobbying a particular legal entity’s interests and those of revenge on
the part of a body of the executive authority, are, in themselves, damaging for the
reputation of the Administration of the Volgograd Region, as they can make numerous
Internet users believe that the Administration has been involved in unclean and
unethical – even if not unlawful and criminally punishable – activity condemned by
society. At the same time, the defendant has failed to provide any evidence to prove
that the events referred to in the article did take place. The Administration of the
Volgograd Region has submitted its orders to suspend allocation of subsidies to the
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