Rise in Bosnian Defamation Cases Raises Censorship Fears

Last month, a Sarajevo municipal court judge, Aida Aganovic, pronounced a first-instance verdict on a lawsuit filed by Dr Emir Talirevic against the Center for Investigative Reporting, CIN.

The judge ruled that a CIN journalist had been guilty of defamation and ordered the CIN to pay Dr Talirevic 2,000 Bosnian marks in compensation for non-material damage, assessed as violation of his honour and reputation.

This was caused by the publication of articles titled “Prosecution investigates the business activity of ‘Moja Klinika’” and “The expensive pathology of Sebija Izetbegovic”.

The verdict said the CIN journalist “failed to present the full results of her research and did not have sufficient knowledge to determine them with certainty before presenting them to the public”.

It also stated that alleged facts in her articles had not been established as “completely true”.

Media experts, as well as the Association of BH Journalists, condemned the verdict, insisting it contained an unacceptable assessment. The general secretary of the BiH Journalists association, Borka Rudic, told BIRN that defamation suits of this kind against journalists and the media were not being conducted in line with the European Convention on Protection of Human Rights and the practices of the European Court of Human Rights.

Rudic said it was wrong that the burden of proving defamation in Bosnian courts was being pushed onto journalists – not onto the prosecutors or persons who claim to have been defamed.

“The ‘Moja Klinika’ verdict against the CIN journalist shows that the judiciary lacks experts on media law who can evaluate content and react to allegations that the journalist did not have sufficient knowledge to determine the data before presenting it,” Rudic maintained.

Rudic also said that verdict formed part of a growing trend, adding that her union’s analysis of verdicts had revealed “deficiencies, shortcomings and lack of knowledge” in the country’s courts on the Law on Protection from Defamation.

The Center for Education of Judges and Prosecutors of the Federation [entity] of Bosnia and Herzegovina told BIRN that the large number of defamation cases against journalists was a relatively new phenomenon. It agreed that more work with judges was needed to improve the quality of such verdicts.

Demands placed on journalists ‘unacceptable’

CIN’s lawyer, Nedim Ademovic, said it was “absolutely unacceptable” for a verdict to say that a journalist “must have sufficient knowledge if they want to do research and write publicly about a certain subject.

“According to this court, a journalist is obliged to determine with certainty the truthfulness of results of journalistic research. This means a journalist has to be an expert in a certain field and guarantee the correctness of information, or else he/she must not become involved in publishing [it],” Ademovic said.

He deemed this a classic example of court-imposed censorship, adding this was a particularly dangerous conclusion if a journalist relied on documentation obtained from public institutions.

According to Ademovic, the court also did not specify what was right or not right in the offending article/s.

“CIN published data related to the business activities of ‘Moja Klinika’, owned by Dr Emir Talirevic, obtained from the Abdulah Nakas General Hospital as a public institution. This verdict does not specify what exactly it accuses the investigative journalists of,” Ademovic noted.

The Municipal Court in Sarajevo has declined to explain the court ruling. “Judges are independent in their work in accordance with the Law on Courts of the Federation of Bosnia and Herzegovina. Court decisions may only be re-examined by another competent court in relation to procedural legal remedies prescribed under the Constitution or law,” it said.

Mehmed Halilovic, a lawyer and media expert, said the judge’s assessment “that the journalist did not have the necessary knowledge to evaluate the data she had received” was concerning.

It was “completely out of the domain of what we call the right to freedom of information, media and freedom of speech”, he asserted.

“No special knowledge is required of journalists and I think … the judge exceeded her authority and the interpretation and the European Convention on Protection of Human Rights and our [own] Law on Protection from Defamation”, Halilovic said.

In response to a request by the BH Journalists union and the Free Media Help Line, Halilovic prepared a legal analysis, which said that the judge’s verdict put forward allegations “pertaining to issues of media and journalistic ethics for which the judge is not competent [to decide]”.

In his analysis, Halilovic also noted that Dr Talirevic had not denied any of the allegations drawn from the CIN research.

The analysis further noted that, following publication of the article, Talirevic initially called the journalist and praised it – only to write a number of insults against the journalist and CIN on Facebook two days later. Following a lawsuit filed in September 2016, the Municipal Court in Sarajevo rendered a first-instance verdict against Talirevic. But in November 2016, Talirevic then sued the CIN.

“One gets the impression that this was an attempt to use a counter-suit to make a ‘balance’ in favour of the claimant,” Halilovic said in his analysis.

Defamation law seen as worryingly unclear

Davor Bunoza, a lawyer who collaborates with the Center for Promotion of Civil Society, CPCD – which advises media and journalists in defamation cases – say one problem is lack of legal clarity. The Law on Protection from Defamation is one of the “most poorly defined laws” in Bosnia, he said.

“Judges, particularly young ones, must know how to apply the stands of the Strasbourg Court and Constitutional Court of Bosnia and Herzegovina pertaining to the European Convention on Human Rights … All judges should draw on court decisions referring to the European Convention more often,” Bunoza added.

The Muhic Attorneys’ Office, which also cooperates with the Center, says courts have become too strict lately when evaluating defamation cases against journalists.

“Disputes related to defamation are very sensitive and require experienced and educated judges, which unfortunately is not the case in our judicial system,” it told BIRN.

“The problem arises because there are no uniform criteria and journalistic freedoms in Bosnia and Herzegovina are not perceived as broadly as in the Western Europe. We still do not differentiate sufficiently between the terms ‘offensive writing’, ‘value judgement’ and ‘defamation’,” the Attorneys’ Office noted.

Nusmir Huskic who cooperates with CPCD, as a lawyer defending journalists in defamation cases, observes although mental distress is the most frequently cited reason for filing a lawsuit, it is often more about taking revenge on journalists or media stations.

Borka Rudic says analysis conducted by the BiH Journalists Association has shown that Bosnian courts do not assess the public interest in publishing information and protecting the right to freedom of expression when reporting about certain individuals, institutions or actions by public figures.

“A number of verdicts against journalists are explained by political classifications or professional medial classifications by the court, although courts should not engage in political classifications, and particularly in classifications pertaining to professional media ethical standards without using statements or assistance from experts in media issues,” Rudic said.

She said that BH Journalists finds the large number of defamation suits highly problematic, seeing them them as a tool to put pressure on journalists and the media.

“In several cases, dozens of lawsuits were filed against the media; … media station owners then publish information that defamation suits have been filed and compensation requests made – but no information on the outcome of those proceedings is published later on.

“A large number of defamation suits are withdrawn following the publication of articles in the media, once the political and public pressure against the media and editors has been achieved,” Rudic said.

The director of the Center for Education of Judges and Prosecutors of the Federation of Bosnia and Herzegovina, Arben Murtezic, said that problems related to the Law on Protection from Defamation have been noted, and training of judges has been going on for two years.

“It has been noted that our law is technically strange. It mainly leans on judgments passed down by the Strasbourg Court and contains general and even abstract terms,” Murtezic conceded.

In his view, the law should be further clarified to reduce the number of suits and pressure against journalists. “There are surely people who know the matter better, and some who know less about it, but we should continue working on it, because there is obviously a problem there,” Murtezic concluded.