to Offend, Shock and Upset:
of the New Law on Defamation in Bosnia and Herzegovina
journalists are going down a good path towards a quick resolution of some of
their problems with laws and courts, and much easier than some of their other
colleagues in the Balkans and Eastern Europe regions. However, it would not harm
them if they at least glanced over the results of a recent survey on the
reputation of the US journalists among their own public before they start
celebrating, particularly so as the US journalists have reportedly resolved
their problems of this sort already.
to the US Freedom Forum web page, “there have been no major instances of
misreporting for almost two years now” in the US journalism (which is good
news), such as those back in 1998, but the public opinion still prevalent in
that country is that newspapers are “partially biased and unreliable, and too
often sensationalistic as well” (which is bad news).
course, credibility is easy to lose and hard to win back. Back in that
disastrous year of 1998, The New Republic was compelled to make a public
confession that one of its journalists, Stephen Glass, had fabricated as many as
27 out of the 41 published stories, whereas Boston Globe had to lay off even two
of its columnists (Patricia Smith and Mike Barnicle) for similar reasons. The
leading daily in the state of Ohio The Cincinnati Enquirer had to fire its
journalist Mike Gallagher for using disallowed instruments in information
gathering and paid up to 10 million dollar claim to Chiquita Brands
International. The list of the major “sinners” also contains one of the
Great – the CNN that had to admit that a piece of information on use of
poisonous gases in Vietnam was false.
a similar survey were to be conducted for the whole of Bosnia and Herzegovina,
it would not necessarily bring any good news to local journalists and press.
Public standing of journalists is unfortunately not too high, although it seems
to be higher than the reputation of politicians. But this is hardly of any
comfort at all.
days, however, a piece of good news has reached Bosnian-Herzegovinian
journalists after all. It is not to do with survey findings or polls on
reputation in the public, but rather a support from aside. Namely, in late
February 2001, a Draft Law on Defamation was publicised, as prepared by a group
of international and domestic experts under the auspices of international bodies
in Bosnia and Herzegovina (Office of High Representative and OSCE).
news is that, after one and a half year long preparations, the Draft was finally
published, regulating the issues of defamation and claims in cases of defamation
in a completely modern fashion appropriate to democratic countries. But, as
usual, there is also a piece of bad news to go along with the good one. It is to
do with the way the law was initially received in public, including journalists
of all, why is the law itself a piece of good news?
a country where people used to be criminally liable and punished for several
months or even several years of prison for the so-called crime of opinion
(“verbal crime”) not so long ago, back in the communist days, this law –
once it is finally adopted – will help decriminalize defamation proceedings.
practice of prosecution against press and journalists in criminal procedures was
legalized and broadly applied in the former Yugoslavia in all of its parts. It
exists in Bosnia and Herzegovina of today and is applied more often than not.
option of prosecution in case of defamation does exist in the majority of the
West European laws, but, as stated by the Article 19 organization, it has not
been used against journalists and press in the past twenty years.
practice in BH is different. Between 1996 and 1999, some fifty criminal charges
were raised against journalists and editors before only of Sarajevo courts (the
Court of First Instance). At that very moment, as many as 13 criminal charges
were raised against the editor-in-chief of a weekly newspaper, renown for its
to the analysis done by the ombudsman for media, majority of those charges were
initiated by politicians, and although courts ruled in favor of journalists in
most cases, the proceedings were generally seen as an instrument of additional
pressure upon free media. In several cases, however, courts did sentence
journalists and editors on suspended sentence, and this motivated the High
Representative of the international community in BH – who is the supreme
authority under the Dayton Peace Agreement – to suspend prison punishments in
cases of defamation as of July 31, 1999. The explanation of this decision reads
that “it is completely inappropriate for a democratic society to imprison
journalists” and that “existence and enforcement of these provisions
discourages free press in BH".
this was only a semi-decriminalization of defamation. From then until today,
there is still an option for running criminal proceedings and fining the
perpetrators of defamation, whereas sentences to prison and suspended sentences
were revoked as legal instruments. The new law on defamation definitely does
away with all these, and defamation is fully (i.e. not just when involving press
and journalists) regulated by the civil law.
this “transfer” from the criminal to the civil law, the new law omits some
previous crimes from the same field, such as “offence of the state (BH and
Federation of BH), their flags, coats of arms or anthems, constitutive ethnic
groups and others living in BH and in Federation of BH”. The public prosecutor
had the official responsibility to raise criminal charges for such crimes by the
virtue of his/her very position.
of such type of “shield” for the state, for its authorities and symbols, and
lifting the obligation on the part of the public prosecutor to extend such
protection by the virtue of his/her position is deemed to be one of the
democratic accomplishments of European societies, and it comes as no surprise
that law-makers kept this in mind. However, as early as in the initial
discussions on the Draft Law, judges found this to be “absurd”. “Is it
possible that nobody shall be held liable for ridiculing the state or its
symbols?” One of the judges concluded that “from now on, then, anyone may
set the state flag to fire and get away with it”.
judge who gained his/her professional experience under the regime that cared
much more for symbols and far less for people, of course, finds it hard to even
imagine new form of relations which favour different value systems.
presently applicable Criminal Law in both entities of Bosnia and Herzegovina
does regulate the crimes of both defamation and libel. Defamation has been
defined as “disclosing or conveying false information which may harm honour or
reputation of another person”, i.e. disclosing or conveying false facts.
However, the Law on Defamation contains no explanation of libel, except for a
brief statement that “the one who offends others shall be punished” … In
practice, such wording leaves room for prosecution even in the cases of minor
harm to honour or integrity of others, but also in the cases of expressing views
on other persons which are deemed to be “offensive”.
new draft law does not even mention the word “libel” and it accordingly may
not be used as grounds for filing suits or claims in the future. Such position
of the law drafters was informed by the opinion of the European Court for Human
Rights: the Court has stressed on several occasions so far that the requirements
to prove truthfulness of normative judgments or opinions “can not be met”,
and that such a demand in fact “violates the freedom of opinion itself”.
the new law’s introduction, Article 1, literally reads that “ … the right
to freedom of expression protects the contents of expression as well as the
manner, and it is applicable not only in the cases of views deemed beneficial or
non-offensive but also of those that can offend, shock or upset …”
simply shocked lawyers and judges but, quite frankly, some journalists too.
Namely, being informed by the old school of legal thought and long-standing
experience of their own, some judges in Bosnia and Herzegovina exclaimed once
again, “it was absurd that nobody should be held liable for libel”. However,
there are also some journalists who believe “such a degree of freedom” will
open door to the so-called boulevard press and turn newspapers and other media
into battlefields where integrity and honor of citizens and public personas
would be assaulted in various ways.
an opinion of judges and journalists partly originates from the guaranteed right
of journalists (editors and others) not to disclose identity of their
confidential sources, or any documents that may reveal identity of the source.
Some have namely understood provisions of this law as granting journalists and
editors to defend themselves simply by referring to the fact that they used
information from “reliable sources”.
things are not quite as simple as that. The new law does encourage free press
and freedom of expression, even expression which “may be offensive, shocking
or upsetting”, but this is just one side of the coin. The other side assumes
responsible press and responsible journalists.
journalist, if a journalist is concerned, shall be held responsible for defaming
and suffer the consequences if the journalist “deliberately or due to
negligence causes illegitimate damage to integrity of either a physical or legal
person by disclosing or conveying untruthful facts” (a citation from the Law
– translation by B.R.). Thus, journalists and press are required to act
reasonably, in compliance with the professional code of ethics, and
instance, a journalist can defend him/herself before the court even if s/he
stated untruthful facts, if s/he can prove that s/he has acted in a professional
manner (according to the code of ethics) and in good faith. This practically
means that, for instance, s/he can prove that s/he has had a reason to believe
that the facts presented were truthful and that s/he has based her/his story on
several sources and that, in addition to others, s/he has also sought the
opinion of the person about whom s/he wrote. Thus, a journalist will not be
faced with a difficult task of defense, if the journalist can prove that her/his
actions have been professional and taken in good faith, meaning – responsibly.
the other hand, a journalist will not be able to defend her/himself if s/he has
known or could have known that the facts used as a basis for the story were
untruthful. The burden of proving truthfulness or untruthfulness of facts, as
can be seen, lies on the plaintiff, not on journalists. It is a general opinion
in the democratic world, evidently accepted by the makers of this law that
imposing such an obligation on journalists – to have to prove truthfulness of
the facts stated – would pose a major restriction on the freedom of press and
would not serve public interests.
of this of course also applies in cases pertaining to protection of confidential
sources. Namely, the journalist shall take the responsibility for the facts
published and for her/his professionalism in actions. In other words, an
anonymous source cannot be used to conceal irresponsible actions of journalist
or press and to justify the use of facts the falsity of which they (journalists
or press) “have been aware or could have been aware of”.
Freedom of press
as guaranteed under this law builds on the highest international standards. The
law itself reads: “Any restriction of freedom of expression must be
interpreted with great precision, and any specific requirement for such
restriction must be stated explicitly.”
also count on a number of other benefits brought to them by the new law. Thus,
the law insists on mitigating circumstances in addressing the act of defamation.
In general, the law encourages both press (journalists) and injured parties,
i.e. individuals and legal persons that could seek court protection in the case
of defamation, to resolve any disputes in the simplest way possible and outside
If the injured
party files a suit after all, the court must examine at the very beginning of
proceedings if there is any possibility for reconciliation of the parties, in
order to avoid further procedure. Secondly, in setting the amount of
compensation, the court must establish if the plaintiff or the defendant have
previously taken any steps to reduce or to alleviate the damage caused by
defamation by a text or any other form of expression. This means publishing
corrections and apology. Injured integrity or dignity can be best restored by
publishing corrections, withdrawing statements or apologizing.
law actually encourages the plaintiff to approach the media that assaulted her/him
at the first place and to claim satisfaction in this way, that is, to approach
the court only if s/he is not given any satisfaction, or if a damage created is
so big that is cannot be undone by simply publishing a correction. In any event,
the court must examine if the plaintiff has done so, and it also must examine if
the defendant published corrections or apology in good faith – if the
defendant did so, the court may decide to cut down the amount of claim ruled.
for settling claim for somebody who believes her/himself defamed, the new law
prescribes that claim can be made only on account of actual material damage
whereas a very limited compensation can be paid on account of psychological
Draft Law does not specify the amounts of claim settlements. Judges and lawyers
believe this to be a drawback, because they would find it “easier” if, as
they say, they knew the limits. On the other hand, the law-makers believe that
they can not set any limits or criteria, because these largely depend on the
case and thus must be determined on a case by case basis and by reference to
actual scope of the damage done. As for the so-called non-material damage, i.e.
suffering, material compensation will not be given that frequently anyhow.
course, the Draft Law on Defamation is of main concern to journalists, but it
does not pertain to media only. Namely, the law is to be applied to all
individuals and legal persons (enterprises, companies, associations) that may
either sue or be sued for harming other person’s integrity. Therefore, it is
not a law on media, although it is of major importance particularly to media and
the list of those who may file suit based on this law is endless, it does
contain one restriction, precluding from suing those who used to exercise this
right most in the past. Those are institutions of the government and any other
public authority (the law defines “public authority” as “any legislative,
juridical, executive or any other administrative authority … performing a
public function and any institution owned or controlled by a public authority”).
All these, namely, will not be allowed to act as plaintiffs in cases of
restriction results from experience of democratic countries, which suggests that
granting public authorities the option to sue the press would inevitably
encroach upon freedom of media. In addition, public persons have a number of
other options to defend themselves against harsh criticisms and to present their
opinions in public.
suits may not be filed by government, parliament, court, but by members of
government, public officials, judges as individuals … Their lawsuits, however,
in such cases, are not lawsuits filed by prime-ministers, ministers or judges,
but merely private lawsuits filed by ordinary citizens …
one can see, this law protects journalists to a large extent, provided that they
work responsibly and professionally, whereas politicians in general will enjoy a
much lesser degree of protection in relation to what they used to have in this
country. It is not just that they will not have any special protection, but they
will also have to show a much higher degree of tolerance – by contrast to
ordinary citizens – for public criticism because they do perform public
functions and therefore their performance must be followed closely by both a
vigilant public and rigorous press.
However, Bosnian-Herzegovinian journalists must bear on mind that “privileges” under the new law “ means greater responsibility as well. As the US experience indicates, credibility is hard to win and easy to lose.
is one of the most prominent Bosnian-Herzegovinian journalists, currently
working as assistant ombudsman of Federation of BH for media. Translation by:
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