SARAJEVO, 18.07.2018.-If I had to choose a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter” (Tomas Džeferson 1787)
If I were to describe the first thing that comes to my mind, when it comes to defamation, it would certainly be Emile Zola, a historical figure, a reflection of a human kindness and his letter “J’áccuse” (I Accuse). “I was determined that my country should not remain the victim of lies and injustice. I may be condemned here. The day will come when France will thank me for having helped to save her honor”.
Alfred Dreyfus, a military officer of Jewish origin was found guilty of treason in 1894. Based on false evidence he was sentenced for life. In his letter, sent to the president of France, Emile Zola accused reactionary military representatives that were using false documents, so they could hide true guilty person so Alfred Dreyfus, a military officer was at the end accused of treason. Emil Zola was sentenced to one year in prison due to defamation and was fined with 3.000.00 French Francs. Also, l’Aurore director was sentenced to 4 months in prison and fined with 3.000.00 French Francs too. In order to avoid a prison sentence, Emile Zola escaped to England.
It’s been 12 years since the accusation in 1894, until the rehabilitation of Alfred Dreyfus in 1906. Zola never lived to see the end of Dreyfus affair. He was found dead on 29 Sep 1902, apparently suffocated from the chimney fumes. Was it a stupid accident? Was it assassination? We don’t know. To stand for someone, to support his views by openly expressing a will to defend him, to show the truth, to stand alone in front of everyone, assaulted, exposed, excommunicated, but on the other hand, to remain confident and certain that the truth, once it is launched, wipes out everything that lays ahead. We believe that what we do is serving the truth in the best possible way, because of freedom, equality, brotherhood, right to freedom of expression, rule of law and so on.
Similarities, from the time of Zola until today exist even today. Very few things have changed as far as a misunderstanding, accusing, punishing, threatening; even the duration of acquiring a liberating decision is concerned. And today, when journalists write that court decision had been passed, an unusual atmosphere in the community would emerge and as a result, no one, not even the journalists would feel comfortable with the invalid decision. What is the origin of comments limitation? Who and for what reason is favoring this kind of standard? Could this result in pressure upon the judiciary system? Is this opposite to democracy and etymology and is a complete ban of comments the next stage?
“Marriage cancelation, deriving from the fact that a woman was not a virgin at the moment when she decided to get married, a case which happened in France last year in Lille, when the local court decided to cancel the marriage of two French citizens of Arabic origin on 1 April 2008, resulted in enormous media and public attention as this particular case opened many sensitive issues. The cancellation was required because husband discovered that during their first marriage night, his wife was not a virgin despite the fact that, before they got married, she had presented herself as “free innocent and virgin female”. He demanded and was approved with marriage cancellation. Ministry of Justice, following the court verdict, demanded from the public prosecutor to submit an appeal accordingly.
On 17 Nov 2008, the appellation court in Doyen canceled and ruled out the Lille court decision, so the couple, at least until the County Court passes new decision, is still legally married. The canceling decision outlined that “in this hypothesis, deceit does not consist of main qualities, that is, does not contain key qualifications required for marriage canceling“. The reason why this specific case disturbed and, to some extent, upset the public, was due to the fact that the key priority considered as crucial reason in cancelling this particular marriage, Quran was given a priority; instead of favoring civil right principles, but also because of sexism based verdict (only woman must prove the loss of virginity, although the dissatisfaction is seen as exclusive loss for men only; therefore there was no sexism issue present here).
The verdict imposed another obligation within this marriage; a retroactive fidelity, which is considered as rather uncommon comparing to current and modern-day ideas. Finally, the verdict was in contrast with the French Law (without unnecessary analyzing) as this was the only issue in this case. The question was whether we could comprehend the meaning of “main qualities” of a personality and this is actually a well – known discussion, where, despite the dark zone, there is yet another belief: this is public consciousness and awareness, which limits everything the qualities of personalities of future couples in France (in 2008)3 . This case witnessed about the scope of the length of both public and journalists, that managed to inform the public about the court’s decision outcome. Would anyone have been informed that the court approved the cancellation, instead of marriage divorce, which would represent the only way to cease this marriage if it was not courtesy of journalists that managed to reveal the case, post its content and make comments about this issue?
The public would have never found out that the marriage had been canceled due to misleading (in terms of a virginity) of a married person. Today, when we have values, defined by the European Convention on Human Rights and Freedoms, the right to freedom of expression in society, is always being subject to tests. Just to refresh our history knowledge, ever since the French Revolution, when the Declaration on Human and Civil Rights from 1789 was passed, Article 11 defined the existence of freedom of opinion and attitudes and that this was one of the most precious human rights; any citizen is entitled to speak, write and publish freely unless these freedoms and liberties are misused in cases defined by the law. An increasing number of defamation charges may indicate that we do live in a “sensitive” society, where the largest number of damaged persons include public figures that do not recognize personal responsibility and readiness for public critics and figures that attempt to revive broken or loss reputation during the court procedures, including their reputation, through compensational claims which they consider as some kind of limited and partial satisfaction.
Often, the appealing claims are very high and unbalanced with European court practice. After World War II, our court practice did not accept compensations of non-property damages caused by honor violation and this was in accordance with common views in regard to this issue at the time. “Violation of honor”, as defined in the decision passed by the High Court of Serbia from 1949, “may serve as the fundament for compensation only if the violation caused the damage, namely if the material damages derive from the violation. Considering that defamation compensational claims in form of money, it would be interesting to reach the statistic during last ten days, whether any compensational claim reach the amount of BAM 1.00 or some other symbolic minimum and whether the damaged party refused to accept the money for the benefit of the third party, as some usually like to announce.
During the seminar covering the topic freedom of expression, ethical standards, free and responsible journalism and good judiciary implementation, many problems were outlined that professionals encounter during their work and the decisions based on defamations by journalists. Unacquaintance of journalism forms, insufficient knowledge of European Court for Human rights practice, obeying the decisions or innocence presumption, as well as good preparation of journalists in civil and law procedure, altogether represent basic and fundamental problems upon which these procedures are lead.
The fact that there is not enough will to have these problems solved in mediating procedures, through the implementation of ethical and professional standards and that it is necessary to advance the cooperation between journalists and lawyers with the purpose of between legal aid and protection for journalists. Due to easier access to defamation cases, it is concluded that there is a necessity for handbook with real cases and verdicts, including the advancement of cases evidence, but also devotion to more attention to the online field, including comments on social media, court practice balancing in our local courts etc.
In any event, future handbook should contain new decisions passed by the Constitutional Court of BiH, since they could improve journalists’ position during the procedure, just as one of their decisions, which outlined that the proof which journalists failed to prove cannot be proved invalid, instead the proof must be considered in context of standards established by the Law on Protection against Defamation and Article 10 EKZLJP (status of suitors, public interest, acceptable critics etc.
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).
