Allowed to Offend, Shock and Upset:

Contents of the New Law on Defamation in Bosnia and Herzegovina

Mehmed Halilovic

Bosnian-Herzegovinian 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.

According 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).

Of 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.

If 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.

These 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).

Good 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 as well.

First of all, why is the law itself a piece of good news?

• Decriminalization of Defamation

In 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.

The 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.

The 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.

However, 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 public engagement.

According 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".

But 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.

In 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.

Omission 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”.

A 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.

• Defamation Revoked

The 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”.

The 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”.

Furthermore, 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 …”

This 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.

Such 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”.

However, 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.

A 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 non-malevolently.

For 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.

On 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.

All 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”.

• Mitigating Circumstances

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.”

Journalists can 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 the court.

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.

The 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.

As 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 sufferings.

This 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.

• Politicians without “Protection”

Of 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 journalists.

Although 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 defamation.

This 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.

Therefore, 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 …

As 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. 

Mehmed Halilovic is one of the most prominent Bosnian-Herzegovinian journalists, currently working as assistant ombudsman of Federation of BH for media. Translation by: B.R. ©Media Online 2001. All rights reserved.

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