Removal of defamatory articles: This is the only way the purpose of the law would be reached to correct the damage
… The appeal was admitted on the grounds of Art. 280, para. 1, item 3 of the Civil Procedure Code*, on the question, is there any citizen a subjective right to defense against unlawful attack on his rights by bringing a claim for removing an article published in an electronic media containing defamatory allegations and insults.
On the question asked, the present panel accepted the following:
The main civil -lawyer of the tort (note) is the occurrence of a delinquent obligation (ed. – the person causing the damage) Correct the damage he has caused another. Correcting the damage can be both by paying monetary compensation and in kind – by restoring the previous state (the situation in which the victim was before the unauthorized disability).
The purpose of the law is to « repair the damage », ie. To correct all the negative consequences affecting the subjective right of the injuries caused to him by the unlawful behavior of the delinquent.
| In order to achieve this, the law does not introduce restrictions on the ways in which the correction of the damage and the deletion of the negative consequences that have occurred in the legal sphere of the injuries will be carried out. |
Prosecutors write articles on yellow editions, or how the compromise machine works
Are there any restrictions on the court regarding the ways of reparation, ie. For the repair, restoration of the negative consequences caused to the injuries, it was also discussed in connection with the provision of Art. 56 of the Law on Obligations and Contracts, prom. SG, issue. 268/1892/rev., Similar in content of the provision of Art. 45 of the current Law on Obligations and Contracts (« Any action of a man, which causes harm to another obliges this, by fault to whom it has followed, to correct the harm »).
In « Comment on the Law on Obligations and Contracts », Dr. M., D.I. L., LF, ed. 1926, pp. 141-142, it is assumed that the defect usually consists in the award of a sum of money, in capital or rent, but the court may also award the return of the item subject to the tort may force the perpetrator to restore the violated law, may oblige the defendant to write the refutments in the press.
| It is summarized: « In general, the law does not bind the court in the manner of implementation of the envisaged reparation. The court has in this respect all the width given to him the general laws and principles. » |
Judge Capiigpada has condemned the PIC for slander and insults, the articles should be downloaded from the site
In the case of illicit damage, which is expressed in the violation of honor, dignity, good name by publication in an electronic edition of an article containing offensive and defamatory allegations, « repairing the damage » would not be achieved only by the award of non -pecuniary damage, because it would not fully satisfy the interests of interest of the delinquent.
If the article is not downloaded from the website of the electronic media, the unobstructed access to its contents of multiple entities will continue, and it is unlimited in time, respectively, the negative mental experiences for the injuries contained in it will not be discontinued.
In order to fulfill the requirement of the CPA to « repair the damage », ie. The requirement to give the necessary protection to the injuries by deleting all the negative consequences for it and restoring the situation before the illicit disability should be acknowledged the possibility of requesting, along with the monetary compensation, and the restoration of the previous position by removing the website of the electronic edition of the article containing offensive and defamatory statements.
| Because only in this way would the purpose of the law be reached to correct the damage by restoring the existing situation before the violation. |
In the interpretation of Art. 45 of the CPA and resolving the question of what ways of protection it includes, implied, established in Art. 45 of the CPA the rule for « repairing the damage » in the hypotheses of publication of an article in an electronic edition containing insults and slander, the established in Art. 32, para. 1 of the Constitution of the Republic of Bulgaria Principle that everyone has the right to protect against his honor, dignity and good name, and full protection will not be reached if the right to request the restoration of the situation before the unlawful damage is requested by removing the relevant article from the website of the e -edition.
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For these reasons for the question asked, it should be answered in the sense that every citizen whose personality is violated through an article in an electronic edition containing insults and slander, is entitled, on the grounds of Art. 45 of the CPA, to file, along with the claim for awarding monetary compensation for non -pecuniary damage, and a claim for condemnation of the owner of the electronic edition to recover the situation before the unlawful disability by removing the article from its site.
This method of protection is included in the scope of the obligation of the delinquent for « repairing the damage » provided for in Art. 45 of the APA.
On the merits of the cassation appeal: In view of the answer to the question raised, the cassation appeal is justified. Contradicts the provision of Art. 45 of the CPA the conclusion of the appellate court that the law does not regulate the possibility of ordering the defendant to remove the procedural articles from the website of the electronic edition.
As an incorrect, the appeal decision will have to be annulled in the specified part, instead of which another, which is upheld the claimed claim.
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* Art. 280. (1) The appeal against the Supreme Court of Cassation shall be subject to the appellate decisions in which the court has ruled on a substantive or procedural issue, which is: item 3 of relevance for the accurate implementation of the law, as well as for the development of the law.
