If a journalist’s report has been made in accordance with ethic standards, the court officials shall most certainly protect the freedom of expression, including both journalists and media house, in most appropriate ways

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SARAJEVO, 06.07.2018.-European Court of Human Rights point of view, may be summarized in terms of determining whether the correct information in regard with wide public interest release and excuse both journalists and media houses from any responsibility applicable for all the damages it may have caused. If the released information is not true and if it concerns wide public interest, then the so-called “responsible journalism” represents (to some extent), the defense system that both journalists and media houses apply. 

Interview with Vesna Alaburić

E-journalist: What are the fundamental values promoted by the European Court of Human Rights, as far as cases with defamation charges included, are concerned? Where are the frontiers and limits of freedom of expression in regard to the ECHR and what are the minimum principles that must be respected and obeyed based on this court’s decisions?

Alaburić: European Court of Human Rights even protects the freedom of releasing the information and ideas that may be considered as offensive, insulting, shocking or disturbing an individual or part of the certain population. As far as discussions about political and similar issues considered as important in terms of public awareness are concerned, the limits and borders of expression widely appear here. This is why the releasing of allegations, based on defamation charges, does not necessarily have to be prevented and sanctioned, regarding the issue of public interest, also including the situations where journalists had good intentions, pursuant to rules based upon professional journalism principles. Namely, in some situations, journalists simply fail to confirm and prove the correctness and accuracy of information provided, however, it is important that they take all actions required in order to check all information provided. European Court of Human Rights point of view, may be summarized in terms of determining whether the correct information in regard with wide public interest release and excuse both journalists and media houses from any responsibility applicable for all the damages it may have caused. If the released information is not true and if it concerns wide public interest, then the so-called “responsible journalism” represents (to some extent), the defense system that both journalists and media houses apply. If journalist reports are tailored in accordance with journalist’s ethics standards, it is almost certain that the courts shall most certainly protect the freedom of expression, including both journalists and media house, in most appropriate ways.

E-journalist: Is there a way of advancing the court practice and processing the defamation cases in BiH, in terms of promoting the Article 10 of the European Convention on Human Rights, including the implementation of standards by European Court of Human Rights in Strasbourg, in protecting the freedom of expression? What exactly shall the judges that work of defamation cases, be familiar with and what shall be considered important for lawyers and solicitors representing their clients (journalists/editors/media houses) as the accused party?

Alaburić: It is certainly most crucial to recognize the practice by the European Court of Human Rights, but also court practices in other democratic countries. It is also important to bear in mind that certain court decisions may be well comprehended only after having examined the circumstances of the particular case, since court sentences which we often use seem unreasonable in some context, while under other circumstances, they seem reasonable. Knowing rights and good preparation of media “defense”, in terms of facts provided, represent a prerequisite to success in court proceedings. It is also important, however, to pay attention to content prior to the media report. If journalists fail in their professional performance, a not even best lawyer would not be able to “rectify” their mistakes during the court proceedings. This is why it is important to educate journalists and editors. For the beginning, it is essential to identify and recognize the assertions they use whilst entering the risky zone, in terms of charges and eventual accusations, so they could, during the preparation stage, counsel with their lawyers. The possibility of a success in certain court proceedings often depends on the presentation of certain information.

E-journalist: Although there is no reliable information covering this particular area, experts in this field, estimate that there are many cases based on defamation charges in BH courts. It is clear that court proceedings outcomes, in cases based on defamation charges, are most frequently damaging the journalists/editors/publishers. What do these evaluations and information indicate regarding the situation, as far as freedom of expression in this country is concerned, and what kind of indicators for proper work by judiciary institutions this may represent?

Alaburić: From Croatian perspective, the number of disputes on BiH is not a significant number. In Croatia, there are thousands of these cases. I don’t believe that the number of court proceeding cases denies freedom of expression by its genuine nature. Many democracies have gone through (or still undergoing) through the stage of numerous charges pressed against publishers and journalists. High court expenses and costs, compensation and consequences deriving from releasing unreliable and unchecked allegations for media reputation, have resulted with strengthening and reinforcing the self –regulation and stricter journalist ethic standards. If journalists and editors express fear from being fined and from being demanded to cover all costs for compensation, fail to release information that public should be provided with, we could refer to this as to a “freezing effects” of court proceedings in terms of media freedoms. This may consequently represent the alarm and warning that something must be altered and changed urgently as far as the judiciary system or court practices are concerned. The fact that there have been no charges pressed against BiH at the European Court for Human Rights, due to violation of Article 10 of European Convention, except in negligible cases, in fact confirms that journalists, editors, media houses and their lawyers still reckon that local court proceedings are competent, pursuant to European standards in terms of protection of freedom of expression.

E-journalist: To what extent can journalists and media houses contribute in terms of reducing the defamation accusation? Does the implementation of ethical standards and codes of reporting may prevent defamation charges and accusations?

Alaburić: The answer is: Absolutely yes. As I have already said, if journalists work in accordance with ethical standards, they shall be protected in any court. If not protected instantly (during the first instance proceedings), they shall certainly be protected during some other instance.

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). 


Arman Fazlić, BHN Bulletin E-journalist, Sarajevo, 06/07/2018