Today, the reputation of a business or an individual can be damaged by a single online post. News sites, blogs, Telegram channels, forums, and social media allow information to spread instantly, and negative content often remains accessible for years. That is why more and more people are turning to the courts to demand the retraction of false information.
However, the chosen method of protection is not always the right one. A recent analysis of court practice conducted by the National Bar Association of Ukraine (hereinafter—NBAU) showed that the mere fact that the author of the post or the website owner is unknown does not in itself grant the right to file a lawsuit under separate proceedings. The Supreme Court has established a clear approach that anyone planning to protect their business reputation online should take into account.
Why it is not always possible to demand a retraction immediately
Ukrainian law provides for a special protection mechanism in cases where the identity of the person disseminating false information cannot be established. In such a situation, a person may file a petition with the court to establish the fact that the information is false and to have it refuted through separate proceedings.
In practice, many petitioners believe that it is sufficient to check the website, fail to find information about the author or owner of the resource, and immediately use this mechanism. However, the courts take a different position.
The Supreme Court of Ukraine emphasizes that the plaintiff must prove not only that the information is false, but also that they have indeed exhausted all possibilities for identifying the person who disseminated it. If there is even a potential possibility of finding the author or the website owner, the case must be heard in civil proceedings against a specific defendant. In fact, the courts proceed from the principle that separate proceedings are an exception, not the primary means of protecting one’s reputation.
The Case of the Anonymous Article: Why the Court Denied the Applicant’s Claim
Case No. 755/1773/24, analyzed by the NAAU, is illustrative. An individual filed a petition with the court seeking a declaration that false information had been disseminated on a website and requesting its retraction.
The petitioner claimed that they could not identify the website owner and therefore could not file a lawsuit against a specific defendant. However, the courts of first and appellate instance refused to open proceedings. The Supreme Court of Ukraine upheld this position.
The reason was that the article itself contained information about the author, and there were other ways to obtain information about the owner of the website. The court noted that the plaintiff had not proven that he had used all available mechanisms to identify the person disseminating the information. Furthermore, the court emphasized that information about the website owner could be obtained through the domain system administrator, the domain name registrar, or the hosting provider. Therefore, it was premature to claim that it was completely impossible to identify the defendant.
As a result, the courts concluded that there is in fact a legal dispute between the parties, and therefore the case must be heard in civil proceedings rather than in separate proceedings.
Even a foreign website does not exempt one from locating the defendant
Even more interesting is Case No. 953/6430/22. In that case, the plaintiff attempted to prove that it was impossible to identify the author and owner of the website because the domain was registered abroad and the data in the WHOIS service was hidden.
At first glance, the situation seemed hopeless. However, the Supreme Court of Ukraine did not agree with these arguments. The court noted that even foreign domain registration or hidden registration data does not automatically preclude the ability to identify the resource’s owner. The case file contained information regarding the email address, the domain name registrar, and the hosting provider. The applicant could have contacted these parties or used procedural mechanisms to compel the production of evidence through the courts.
Furthermore, Ukrainian procedural law allows courts to issue international letters rogatory to the competent authorities of other states to obtain evidence. Therefore, the mere fact that the information is located abroad does not mean it cannot be obtained.
As a result, the Supreme Court of Ukraine upheld the decisions of the lower courts and confirmed that the applicant had not demonstrated that all available means of identifying the information distributor had been exhausted.
What This Case Law Means for Businesses and Public Figures
For companies, entrepreneurs, bloggers, and experts, this case law is of great significance. It demonstrates that protecting one’s reputation online requires taking a proactive stance and carefully preparing evidence.
Before filing a lawsuit, it is advisable to:
- document the fact that the information was disseminated;
- attempt to identify the author of the material;
- send requests to the website owner;
- gather information about the domain, registrar, and hosting provider;
- utilize the court’s authority to compel the production of evidence.
Only after all these mechanisms have been exhausted can one argue that it is impossible to identify the defendant and apply the procedure for separate proceedings.
In fact, the Supreme Court of Ukraine is establishing an approach under which the internet is not an “anonymous territory,” and website owners and information disseminators must be sought out as actively as possible before resorting to simplified defense mechanisms.
Current judicial practice demonstrates that to refute false information on the internet, it is not enough to simply state that the author of the publication is unknown. The court will require evidence that the claimant has exhausted all possible means to identify the disseminator of the information. Therefore, protecting one’s business reputation online today requires not only legal arguments but also a sound strategy for gathering evidence. A mistake at the initial stage can result in wasted time and a refusal to hear the case.
If you have encountered the spread of false information online or need to protect your business reputation, please contact our law firm. We will help you determine the best course of action and build an effective legal strategy.
