What Decriminalisation of Defamation means for financial sustainability of investigative journalism?

SARAJEVO, 10.07.2018.-Media houses have the vast possibility to influence the public opinion and public awareness regarding certain social appearances, issues, and problems, as the nature of media and mechanisms they dispose of may largely contribute to processing and solving numerous social issues of public interest. This statement sounds really nice on one hand, but on the other, it is merely a phrase as it is also often used by politicians that are prepared to sue media houses, their representatives and journalists being critical towards their work, that is, “influence the public opinion and awareness”.

This is common for local politicians, but BH courts often neglect stances by the European Court for Human Rights, like the one in the case of „Lopez Gomez da Silva v. Portugal“:

“Limits of acceptable critics are wider in case of politicians’ characters themselves, in comparison with private figures. Politicians are inevitably and deliberately more open to particular examining of their words and action… and according to this, they must express a larger scope of tolerance”.

Journalists in BiH have been under constant pressure and these kinds of pressures make their work much harder. One mechanism for obstructing the journalists in performing their work, including the posting and releasing true and investigative reports, is best seen through the defamation charges (lawsuits) appealed by both politicians and their close persons. Chronic absence of adequate support for the production of independent, quality – based media content is additionally complicated (due to unbalanced and biased court practice and lack of comprehension and understanding of journalists and media forms).

Since the Law on Protection against Defamation was legally passed on 15 years ago, the legislative institutions have since been attempting to convince the public that its purpose was to provide the protection for journalists and media representatives from criminal responsibility in case of defamation emerging; judiciary bodies promised that verdicts shall not be aimed towards vast financial fines and endangering media houses survival. It seems that the situation, in reality, is rather different. Closing down of “Slobodna Bosna”, a local weekly magazine, confirms exactly that the situation, in reality, was indeed different. Nowadays, “Zurnal”’ magazine is facing similar problems, (and may face similar scenario as “Slobodna Bosna”) since “Zurnal” is one of the very few media houses in BiH that produce investigative stories and reports, which automatically implies that they have been under constant pressure and enormous compensational reimbursements amounting from BAM 3.000.00 to even BAM 50.000.00. Not to mention the effects that eventual verdicts would have on this particular media house. It may sound brutal, but the fact that journalists write the truth does not necessarily mean that they would not be convicted of defamation. Unfortunately, the real world confirms this practice.

Frankly, not all media houses, (including journalists) are innocent and with no mistakes in their articles, texts, and posts, just as all judges are not just and benevolent. This is why we must exclude generalizing, but it is possible to outline (through some examples and cases) certain problems that both journalists and media have during the process based on defamation charges.

Courts are generally complaining that they have been “loaded” with defamation charges. In reality, there are still no rejected cases following the appeal, that is, dismissed cases after the submission of reply to the charges pressed. There have indeed been cases where suitor failed to submit a single proof of evidence or argument for his/her claims for untrue journalist allegations or no evidence that may serve as the basement for defamation.

On the other hand, the response of the accused party proved and confirmed the authenticity of their stories, despite the fact that the charges are already accepted and hearings are being scheduled accordingly.

The assumption is that judges have no time to study and examine arguments for and against the accusations and charges, so they accept charges pressed and let the entire process continue, which eventually results in additional costs and expenses of court resources for hearing processes and produces unnecessary expenses and costs as well.

Another, equally significant and disputable characteristic of defamation charges is the involvement of court experts from the field of psychiatry. They provide their expert opinions related to the degree of “anguish” that the suitor had suffered. Not once, the estimate provided by the court experts was based on expertise that was very often conducted six and even twelve months after the accused party had published, released or posted their article, text or post. One does not have to consider her/himself as an expert, in order to realize that these kinds of tests had been completed mostly on the copy – paste method. In one of the many cases, (also based on defamation charges), the court expert wrote, in his report, that the suitor was “clearly disturbed and had to take medications (tablets/pills) and that he/she felt depressed for a week”. The court expert identified and determined this kind of state ten months after the article had been posted! After being asked about the precise type and name of tablets the suitor had to use, and after being asked about who prescribed them, and was the suitor able to go to work during this period, the court expert had no adequate and appropriate answers, except that he wrote what the suitor had previously told him to write down.

It becomes more and more evident that certain court proceedings with the defamation charges proceedings show almost no interests in asserting whether the defamation had even existed. Journalists attempt to prove and confirm the correctness of their allegations, but the discussion is usually directed to “anguish” that the suitor had suffered, from the moment of article/post releasing and without even being determined and confirmed whether the defamation had even existed in the first place?!

In reality, there is ever-present frustration by journalists that must prove every single and even every minor detail from their article, text or post. Courts vastly neglect the issue of public interest and also, the practice is completely unbalanced as far as the estimate of valued courts is concerned. Courts are if we could say so, rather conservative when it comes to these issues.

The question of presumption of innocence has become “slippery surface” for journalists, but for courts as well. Additionally, the first – instance verdict was recently passed, based on charges where the suitor claimed that he/she had been subject to defamation by releasing certain information, which additionally results in charges being pressed against her/him, as a result. Although the prosecutor’s office spokesperson confirmed the allegations, regarding the charges and content, the court proceedings against the suitor commenced in the meantime and the verdict exposition confirmed that “presented information was insufficient in order to prove the presumption of innocence by the suitor until the termination of the entire process”. Should such verdict become first – instance verdict and become (partially) court practice, it would definitely mark the end of investigative journalism era, which is based on discovering, exposing and releasing the illegal deeds and irregularities by the governing authorities (politicians), with all parties involved before the judiciary official authorities even notice such occurrences. Recent case where certain female judge passed the verdict to the benefit of journalists is indeed rare. She claimed that the passion used by the accused party, in order to defend their allegations, was so intense and convincing, that she simply had to pass such verdict to their benefit.

This case reminded us of time of the beginning of the implementation of the Law on Protection against Defamation, where the interpretation of the provision of this law was that no party shall be accused and convicted, even if the allegations were false, if there were no bad intentions present and which was based on the journalists’ convincement to dispose of correct information.

But, during this period and as we had already mentioned and indicated, the convincement was that fines shall not be enormous and at present, however, two or three such verdicts could financially destroy the media house completely.

Numerous charges, even when you’re completely right, do not guarantee a verdict of release. Some local courts still pass their verdicts based on political impacts and are imposed with pressure by local suitors, especially if this suitor has a certain influence in the community. A female judge of Elemental Court in the Republic of Srpska almost admitted that she had passed the verdict based of defamation charges, to the benefit of the suitor, though it was significantly reduced verdict, comparing to indemnity demand, just because the suitor was known as very influential in that particular area. Therefore, she knew that there was no basis for such a verdict. Luckily, second – instance court had neither fear nor dilemma as they rejected and dismissed the suitor’s appeal.

All of the above mentioned is, we repeat, not intended to amnesty journalists in advance from their professional responsibility for releasing and exposing their texts, articles or posts. Naturally, the rules of professional journalism must be obeyed, including journalists ethics as the presumption of successful defense against the defamation charges. Of course, they should have sensibility in terms of innocence presumption, but on the other hand, they should not express fear from the court that shall lead the court proceedings, including the fear from the judge that shall lead the case and fear from “powerful” suitor. If journalists’ and media existence must be jeopardized, because of unbalanced court practice and the interpretation of principles of freedom of expression, then there is the ground of suspicion that the Law on Protection against Defamation has become a tool that politicians shall use to close down “unsuitable and undesired” media houses.

Prior to the passing of the Law on Protection against Defamation, there was penal – based journalists’ and media responsibility, but they were mostly terminated with a verdict of release or in some cases, the cases concluded with the conditional discharge. Verdicts, therefore, did not jeopardize the existence of media and their staff. For the record only, in 20 European Union countries, defamation is still not treated as a criminal deed or felony.

This text is a part of E-Bulletin–the first edition of the special serial of BHJ online bulletin implemented as part of the following project: Reinforcing Judicial Expertise on Freedom of Expression and the Media in South-East Europe (JUFREX). 

Amarildo Gutić BHN Bulletin E-journalist, Sarajevo, 10/07/2018