Article 19 calls on Croatia to decriminalize insult and defamation

Source: CJA
Article 19 calls on Croatia to decriminalize insult and defamation
www.article19.org

Article 19, an international organization promoting freedom of expression, calls on Croatia to decriminalize defamation and insult.

“We share the concerns of the Croatian media community and civil society, who have noted the devastating effect of the current Criminal Code. The threat of criminal prosecution, often combined with the abuse of civil lawsuits for defamation, restricts journalism and stifles public debate. Decriminalization should be accompanied by a deep reform of civil legislation, including measures to combat strategic lawsuits against public participation (SLAPP), and a change in the approach to their application in judicial practice. The protection of reputation should be balanced with the public interest and should not be addressed through criminal measures,” states Article 19, an organization that is part of the esteemed consortium Media Freedom Rapid Response (MFRR) in its announcement.

The Croatian Criminal Code penalizes ‘defamation’ (Article 147) and ‘intentional defamation’ (Article 149). Although the scope of this second offense has been previously limited by amendments to the Criminal Code, the intentional dissemination of false claims that may harm the ‘honor or reputation’ of another person remains a criminal offense. There are no exceptions, such as a defense that the information was in the public interest, Article 19 states.

The existence of the defamation provision in the Criminal Code is not a theoretical problem. The provision is actively applied, including cases against journalists, as well well-documented by the Croatian Journalists’ Association and civil organizations. The problem is further exacerbated by the horrifying use of insult provisions to restrict journalistic work and the dissemination of information in the public interest. The number of SLAPP lawsuits in Croatia remains among the highest in the EU. The concerning strategy of dual prosecution — initiating criminal proceedings against journalists while simultaneously filing a civil lawsuit against their publisher — stifles journalism in Croatia, believes Article 19.

International Standards on Defamation

International human rights law recognizes that freedom of expression may be restricted to protect personal reputation. However, defamation laws, like all restrictions, must be proportionate to the harm caused and must not go beyond what is necessary in given circumstances.

Article 19 argues that any law that criminalizes defamation constitutes a violation of the right to freedom of expression. Not only are criminal defamation laws outdated and overly harsh, but they also constitute unnecessary and disproportionate measures for protecting the reputation of others. Criminal prosecution for defamation in response to a statement on a matter of public interest represents a particularly serious attack on freedom of expression. The application of criminal sanctions, or the threat of their application, creates a chilling effect on the free flow of information and deters journalists and other social actors from performing their essential public function in a democratic society.

Relevant international and regional authorities have made compelling arguments against the criminalization of defamation:

In its General Comment No. 34 on freedom of opinion and expression, the UN Human Rights Committee recommended that states decriminalize defamation and “avoid excessive criminal measures and penalties.” The Human Rights Committee also added that “the public interest in the subject of criticism” should be recognized as a legal defense. In addition to formulating general standards on this issue, the Committee has actively supported the decriminalization of defamation in its comments on reforms in specific countries. For example, it welcomed the decriminalization of defamation and insult in North Macedonia as “steps in the right direction towards ensuring freedom of opinion and expression, especially for journalists and publishers.” The UN Special Rapporteur on freedom of opinion and expression explicitly called on governments to: (a) abolish criminal defamation laws in favor of civil laws, (b) limit sanctions for defamation to ensure that they do not deter freedom of opinion and expression and the right to information, and (c) prohibit government bodies and public authorities from filing defamation lawsuits with the explicit purpose of preventing criticism of the government. The Rapporteur further noted that the subjective nature of many defamation laws, their overly broad scope, and their application within criminal law have turned these provisions into a powerful mechanism for silencing investigative journalism and stifling criticism. The European Court of Human Rights (ECtHR) has repeatedly reviewed the incompatibility of criminal sanctions for defamation with the principle of greater tolerance and openness to criticism applied to public figures. In the landmark case Lingens v. Austria, the European Court characterized criminal proceedings for defamation against a journalist as a measure that:

“[A] constitutes a form of censorship likely to dissuade him from repeating such criticism in the future … In the context of political debate, such a penalty would likely deter journalists from contributing to public debate on issues affecting the life of the community. Similarly, such a sanction could hinder the media in fulfilling their role as purveyors of information and guardians of the public interest.”

The Principles on Freedom of Expression and Protection from Defamation (Defamation Principles), which were overseen by Article 19, further detail the international standards and best practices for approaches aligned with freedom of expression in protecting reputation.

The Principles provide that all criminal defamation laws should be abolished without delay, even if they are rarely or never applied. They should also be replaced, where necessary, with appropriate civil defamation laws. In those states that still have such defamation laws, steps should be taken for the gradual implementation of this principle.

While civil defamation laws are certainly a better measure for protecting someone’s reputation than criminal sanctions, they must also be drafted and enforced in a way that does not deter public debate. States must implement measures against the abuse of defamation laws by government officials and politicians who suppress criticism, investigative journalism, or any other dissemination of information on matters of public interest.

In this regard, the mere falsity of factual claims that are the basis for defamation lawsuits is not sufficient. As the Defamation Principles explain in detail, defendants in civil cases should have the opportunity to defend reasonable publication such that even false statements would not be subject to liability where circumstances justify publication. The importance of the right to freedom of expression is heightened regarding information of public interest and the public’s right to timely information on such matters. This principle has been applied in the case law of the European Court of Human Rights, which concluded that punishing an overall balanced news publication concerning a matter of public interest, which contains certain inaccurate and defamatory statements, violates the guarantee of freedom of expression.

Finally, best international practices favor, where appropriate, resorting to non-criminal alternatives. This can include the publication of retractions, apologies, or corrections, and the right to reply. Such measures should be voluntary and should not violate media freedoms, particularly editorial freedom and independence. Instead of limiting the free flow of information and deterring debate on matters of public interest, such measures represent a better-aligned response to an unjustified attack on someone’s reputation, allowing for the correction, clarification, or direct rebuttal of inaccurate claims made as defamatory.

Insult

The European Court is known for its statement that the right to freedom of expression “applies not only to ‘information’ or ‘ideas’ that are favorably received or considered harmless or unimportant, but also to those that offend, shock or disturb.” International human rights law does not recognize a “right” not to be offended and protects speech that may be subjectively perceived as “offensive.” Therefore, the criminalization of insult can never be justified by the protection of the rights of others.

In the case Lingens v. Austria, cited above, the Court drew a line between factual assertions and “value judgments,” which by their nature are not subject to proof. The term “insult” usually refers to expressions of opinion, which do not contain assertions of fact, and protects feelings, not reputation. As such, sanctioning “insults” undermines freedom of thought. Unlike freedom of expression, the right to freedom of thought is absolute and cannot be subject to any restrictions, states Article 19.

As the Defamation Principles explain, some statements may initially appear as factual assertions, but due to language or context, it would be unreasonable to understand them that way. Rhetorical devices such as hyperbole, satire, and jokes are clear examples of this. Therefore, it is necessary to define opinions for the purposes of defamation law in a way that ensures that actual, rather than merely apparent, meaning is operative. Defamation laws of any kind cannot be used to punish non-factual “value judgments,” such as intentional exaggerations or satirical expressions, regardless of whether they are perceived as offensive, according to Article 19’s announcement.

Analysis of Croatian Law

The Croatian Criminal Code penalizes defamation and insult.

The offense of defamation is broadly defined as the act of spreading “false factual claims (about another person) that may harm their honor or reputation, knowing that it is false.” It is punishable by a fine. Additionally, the dissemination of a defamatory statement to a large audience, especially “through print, radio, television, computer systems or networks, or at a public gathering,” incurs heightened criminal responsibility.

The law clearly criminalizes all “false” statements, without recognizing a defense of reasonable publication. International standards on defamation hold that defendants should have the opportunity to defend reasonable publication so that even statements that are false would not be subject to liability where circumstances justify publication. In such cases, the public interest in the disputed information should prevail. Croatian criminal law does not recognize the crucial public interest exception. In fact, it treats statements disseminated through mass media as a more dangerous offense and prescribes higher penalties for such violations. This approach increases the risk of prosecuting journalists and defies the fundamental public interest defense.

Criminal provisions on defamation are often applied in combination with civil lawsuits in Croatia. The high level of SLAPP lawsuits in Croatia, particularly against journalists, exacerbates the problem by obstructing the public function of the media and hindering the public’s right to receive information of public interest. The dual burden of criminal prosecution and civil proceedings entangles journalists in lengthy and expensive lawsuits. There is an evident “chilling effect” on investigative journalism, and this burden disproportionately restricts the role of the media as a guardian of the public interest.

Moreover, the Croatian Criminal Code contains a provision punishing the act of insult. Insulting a person is defined as offending the honor or dignity of another person through “any action, statement or message.” This broadly defined criminal offense is punishable by a fine. There are no exclusions, and the insult offense is applied to expressions of opinion and judgments, which constitutes a serious attack on the right to freedom of expression.

The Croatian law regarding defamation and insult is far from meeting the standards required by international human rights law. The recommendations of the Council of Europe have largely been ignored, and there is a persistent gap between the constitutional guarantee of freedom of expression and the current legal framework in Croatia.