Czech Republic: Changing The Rules On Personality Protection

Last Updated: 10 May 2011
Article by Jiří Hrádek

In 2010, the Czech Government began with the draft of a new Civil Code which is to be passed by the Czech Parliament at the end of this year. However, while the new Civil Code should be in force by January 2013 at the earliest, case law has been developing regardless of any legislative aims.

Thus, we want to point out one important decision of the Higher Court in Olomouc, file No. 1 Co 2/2010 which has the potential to change the past incoherent practice of the general courts regarding the protection of personality rights under the Czech Civil Code even without the help of any appropriate legislative means.

Damages according to the Czech Civil Code

The Czech Civil Code contains provisions on damages which stipulate general provision both for the compensation for pecuniary and non-pecuniary damage. In particular, under sec. 444 of the Civil Code, it is provided that (1) an injury to health, pain suffered and aggravation of the social position of the aggrieved shall be compensated by a lump sum. Paragraph (2) then stipulates rules for the adjustment of compensation for aggravated social position based on the increase of costs of living.

Apart from the first and second paragraph which stipulates the scope of damages in case of damage to health, paragraph 3 hereof provides for compensation of moral distress caused by the death of a closely related person. Thus (3) a lump-sum payment is to be made to the surviving dependants for damage suffered from death.

These provisions are rather complex and together with other regulations on damages grant the injured party full compensation for damage or harm suffered, i.e. even compensation for interference with non-pecuniary damage arisen as consequence of a breach of personality rights.

The Civil Code also contains a general regulation on the protection of personality rights which is to be deemed fully independent.

The corresponding regulations are contained in sec. 11 et seq. of the Civil Code. In particular, sec. 11 provides that (1) An individual shall have the right to protection of his person, in particular his life and health, civic honour and human dignity as well as his privacy, his name and any expressions of a personal nature.

This general clause is then amended by particular provisions, which establish rules for the compensation (satisfaction) for illegal interference with personality rights.

Under sec. 13 (1) an individual shall be entitled in particular to demand that unlawful interference with his personal rights cease, that the consequences of this breach be removed and that adequate satisfaction be awarded to him. (2) If the satisfaction under paragraph 1 appears insufficient compared to the severity of the reduction of the individual's dignity or honour, the individual shall have the right to monetary satisfaction for non-pecuniary harm. (3) The amount of the satisfaction under paragraph 2 shall be specified by the court taking into consideration the seriousness of the harm inflicted and the circumstances under which the harm occurred.

Consequences of competing rules

Based on these two competing systems of compensation for damage to the immaterial sphere, harm suffered can be compensated based on both provisions. The public has been made aware of this and, as a result, claimants in liability suits try to get as much compensation as possible under both provisions using the same facts and allegations for both claims.

In reality it often happens that a surviving dependant of a person who died in a car accident receives first full compensation under sec. 444 (3) of the Civil Code and then claims for compensation under sec. 13 of the Civil Code. Therefore, by way of additional satisfaction for his loss, a survivor may get as little as 100 000 CZK or as much as ten million CZK.

New approach

The claimant in the case which is the subject of this article also tried to obtain compensation under both provisions.

After an operation of her right eye, the claimant suffered damage to health through medical malpractice of the defendant consisting of the implantation of the incorrect intraocular lens, due to a mix-up of pre-operative measurements entered in the medical charts of the claimant. Based on the damage to health suffered, the claimant filed a petition to the court for damages based on sec. 444 of the Civil Code. The amount requested was only EUR 2 000. However, after receiving the damages, the claimant decided to claim the same amount but this time based her claim on the personality protection provision.

However, the claimant did not bring forth any legally significant circumstances other than those which she had presented in her suit claiming compensation for damage to health. Based on this failure, the court of the first instance rejected the claim of the claimant because she had failed to present decisive facts, i.e. by not fulfilling the burden of proof in the damages case.

The appellate court in its decision to this matter surprisingly fully accepted the opinion of the court of the first instance even though in similar cases the higher courts had constantly repealed such considerations of lower courts.

The appellate court concluded that the claims stemming from the right to compensation for damage to health must be deemed special claims in their relationship to the general claims which arise in the regime of personality protection. Thus, if the claims for non-material damage set by the regulation according to sec. 444 (1) of the Civil Code do not constitute sufficient satisfaction for the damage to health in form of both damages for pain suffered as well as aggravated social position, it cannot be excluded that the affected persons will seek further satisfaction according to the general regulations pertaining to the right for the protection of personality. However, it is not admissible for the person affected in his health to try to compensate or increase his claims stemming from the right to compensation for damages to health through a suit based on the same evidence and circumstances as previously claimed under sec. 444 of the Civil Code.

Conclusion

This clarification made by the Higher Court in Olomouc is very important because it changes the general practice which used to be that in cases which are subject to sec. 444 the courts award damages without setting other requirements even though no new or at least amended evidence is presented by the claimant.

This decision and the new strict consideration of decisive facts have brought a solution to an issue which has been sought after by the legal professions, as previously no attorney had been able to provide to his client, a defendant, a clear estimation of the compensation or satisfaction which he could expect to have to pay.

Now, it is necessary for the injured party to bring forth decisive factual allegations that the compensation granted by means of damages for pain suffered and aggravation of social position did not constitute sufficient satisfaction for the damage to the personal rights of injured individuals.

This means in particular that in case of damage to health the injured party must show evidence that her social life has been substantially breached based on pain suffered and that e.g. her divorce and her subsequent lowered social position was also a consequence of the damage incurred. The same applies to cases determined under sec. 444 (3) of the Civil Code which requires proof that depending survivors have suffered from moral distress which goes beyond the standard situation intended by the legislator when setting up the fixed amounts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions