The Press Council in BiH warned that “the application of the Law on Defamation is being converted into direct pressure on journalists and the media, that is, the violation of the right to freedom of expression, including the right to free work of the media, journalism and reporting.”
Shortcomings of the case law relating to defamation lawsuits were pointed out on December 23rd at a press conference in Sarajevo, by President of the Steering Committee of the Press Council in Bosnia and Herzegovina Dario Novalić and Secretary General of the association “BH Journalists” Borka Rudić, as well as Editor in Chief of “Oslobođenje” Vildana Selimbegović and a journalist of “Slobodna Bosna” Suzana Mijatović, and Ljiljana Zurovac, Executive Director of the Press Council.
It was pointed out that the media in BiH today face large number of complaints on various grounds (Oslobođenje100 lawsuits, Slobodna Bosna 50 …), without even respecting the mediation process before filing a complaint as required by the Law on Protection against Defamation (Article 8 – obligation to mitigate the damage), in which the Press Council in Bosnia and Herzegovina plays the pivotal role.
According to research by the association of BH Journalists, only the Sarajevo court has more than 700 lawsuits for defamation, and in the whole of Bosnia and Herzegovina around 1,000, and that the courts, do not deal with the merits of such claims, and that their actions greatly deviate from the practice of the European Court of Human Rights in Strasbourg.
Research has shown that the inadequate application of the aforementioned law violates the fundamental right to freedom of expression, including violations of the right to freedom of criticism of public officials, rights to use unnamed sources, prosecutorial investigations, trials and court decisions, and the right to an invasion of privacy in the interests of the public.
Representatives of the media community in BiH opened the issue of determining the non-pecuniary damage, the so-called “mental anguish”, which, when multiplied by the enormous number of complaints, is a serious financial pressure, “and in some cases it is intentionally used to extinguish a particular media house”.
Therefore, they underlined that while insisting on respect of Article 8 of the Law on Defamation, it is necessary to expand the list of court experts who assess the degree of sustained “mental anguish”, since this issue, as the case law in BiH shows, is approached unilaterally, almost uniformly, mainly, by using medical experts, without consulting experts in the field of media freedom.
The problem also lies in determining the culprit of defamation and often the source of “defamatory content” becomes irrelevant, and the particular media house that conveyed the content is under scrutiny, which is in stark contrast with the practice of the Court in Strasbourg.
It was estimated that the failure of court practice in BiH lies in the the fact that journalists, editors, media owners, publishers must prove that they did not commit defamation, rather being the other way around, and that the burden of proof should fall on the person who filed the complaint.
At the same time, it was found, indicating the number of concrete cases, that the application of the Law on Protection against Defamation has not yielded results and did not achieve the purpose for which this law was passed, which in turn will result in a broad debate with representatives of the judiciary and the international community in BiH.
The Press Council in BiH and the association of BH Journalists insist on application of this law in terms of case law of the European Court of Human Rights, and, as announced, in this regard they will soon organize a meeting with the President of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina Milan Tegeltija and other officials.
(Source: Fena)
