Legal Controversies in B&H

Media and Libel

What is the cost of reputation. Proposal of ombudsmen. Indemnity for libel 1 KM. What ombudsmen think is bad in the draft law on indemnity caused by libel and insult. Fines of 100 thousand KM would stifle media. Westendorp abolished the possibility of going to prison for libel or insult, but did not abolish the act

AIM Sarajevo, 24 December, 1999

Should the law drafted by the federal government on the height of fines for insult or libel be passed, the editor-in-chief of Slobodna Bosna weekly Senad Avdic in 13 cases could theoretically be fined to pay 130 thousand convertible marks (KM) and his paper one million and 300 thousand KM. The law sent by the government to the federal parliament for adoption in an urgent procedure prescribes a fine for the journalists between two and ten thousand KM, and the publishers would have to pay to the damaged party between 10 and 100 thousand KM!

Implementation of this law would make this weekly go bankrupt and make its editor a pauper. Similar destiny would befall the most popular weekly called B&H Dani. Five appeals have been filed against the editor of Dani Senad Pecanin, which opens a theoretical possibility for a fine of half a million marks for the weekly and 50 thousand for the editor.

The mentioned cases were in court as criminal litigation. In 1999 there were 15 such cases: eight started in this year and seven were transferred from the previous years. Plaintiffs - mostly politicians and public personalities - are impatiently looking forward to the new law and high fines which will "shape up journalists and editorial policies". It is not known on the basis of which criteria depth is measured of the "spiritual pain" for insult or libel, or how much "honour and respectability" of local politicians cost expressed in marks?

The height of the fines is completely out of proportion with the circumstances in Bosnian-Herzegovinian society. If we have in mind that the average salary of a journalist in media which are considered to be well off is 500 KM, it means that a journalist or an editor would have to work twenty long months for the person he/she libelled.

But, the drafted law is not criticised only because of the possibility of rigid punishing of journalists. This law, if implemented in the drafted form would literally destroy a few weeklies or it would reduce the freedom of public speech to "strictly confidential newspapers", such as "certain people" and "certain phenomena" from the time of Information Bureau. Intentions of the drafters obviously were not "noble". The system of double punishments by fines which several times exceed individual and financial possibilities of the media is a sophisticated revenge of the persons in power. Since due to the presence of international organisations in B&H the authorities did not dare arrest journalists, they conceived an efficient model - by means of fines to destroy primarily weeklies Slobodna Bosna and Dani. Others would quiet down by themselves, by self-censorship. This would be the end of freedom of the media, and the regime would remain pure and "democratic".

This "democratic" shift to civil litigation was supposed to be a drift from the threatening criminal responsibility for insult or libel inherited from the time of the verbal delict. Criminal law of B&H (Articles 213-220) prescribed the possibility of up to three years in prison for this offence. The formulation of the criminal part of libel and insult ("the one who states or carries something untrue about another person" or "the one who insults another person") practically leaves the possibility of being taken to court for the so-called "delict of thought" ("something untrue") since it was not stated precisely that a case could be taken to court only for wrong or forged facts and not for stating judgements (opinions and commentary). Taken over from the time of communism, "damaging of the reputation of B&H or the Federation, their flag, coat-of-arms or national anthem" is also a criminal offence. An even greater anachronism is the existence of criminal acts "committed against a state agency or a civil servant or an army officer in connection with their job" and possible criminal persecution in the line of duty.

The fact that in a single court in Sarajevo in the course of 1997 and 1998 there were no less than 56 trials for criminal acts of insult and libel (80 per cent of them referred to journalists) forced the former high representative of the international community Carlos Westendorp to take measures. In the end of his term in office, on 30 July 1999, Westendorp abolished the possibility of a sentence in prison for insult or libel. This measure, however, solved the problem just partly. Journalists sighed with relief since psychological pressure was removed caused by the possibility of a sentence in prison. However, the main drawback of Westendorp's decision is that it has abolished the sanction, but not the act. In this sense, legally and politically, his decision is contradictory and he had the power to abolish all controversial articles of the criminal law in the Federation and the Republic of Srpska which are identical.

The office of the Ombudsmen of B&H Federation, along with the criticism of the drafted criminal law and the government proposal for the height of fines, gave recommendations for modern regulation of libel and insult in accordance with the European standards on human rights. Ombudsmen proposed total abolishment of criminal acts of libel and insult (Articles 213 to 220 of the Criminal Law). They are in favour of passing the law on civil litigation, but they want the concept of insult and libel defined pursuant the European Convention on Human Rights and the practice of the European Court for Human Rights. The future law would have to avoid double punishments of the journalists and the editors with the recommendation that indemnity be demanded solely from the publisher (the Swedish model). It is also proposed that the integral text or parts of the court decision and the sentence be made public, but in the same place where the controversial article was published. As concerning indemnity, two possibilities were suggested: according to the first, the sanction would be limited to symbolic 1 KM; according to the second, the fine for the publisher would range between one and three thousand KM.

The author of this project, Mehmed Halilovic, until recently the editor-in-chief of Oslobodjenje and since November also assistant of ombudsman for media, says that his guiding principle was further development of the freedom of the media and public speech. "High fines from the government draft law would just be a stimulus for self-censorship of the journalists", says Halilovic for AIM. To the question whether the idea about the symbolic fine of 1 KM for insult or libel would be accepted, Halilovic gives the example of Switzerland, specifically the Zurich canton where the rule on indemnity for libel or insult amounting to 1 Swiss franc has become customary in court practice. Aware of the risk that the symbolic fine may be the main argument of the opponents to the recommendation of the Office of Ombudsmen, Mehmed Halilovic answers with a question: "What is the goal: the profit or the truth? If money is the goal, then honour and reputation are on sale!" The proposed solution is based on the idea of full moral satisfaction. This means that sentences would be published in the media. On the one hand, publication of the court sentence - "the truth" - would be satisfaction for the offended party, and on the other, a blemish on the reputation of the media. It is believed that the readers would best sanction the editorial policy of a newspaper. This thesis will be the most controversial when debate opens on the project of Ombudsmen. The central issue is whether responsibility for public speech will in this way be intensified. Some media will be forced to publish on their front pages the court sentences as a denial for their articles. This might make them boring. But the main question is how readers and editorial boards will react, and what about human nature which is inclined towards sensationalism? It is also possible to state the following objection: moral sanction and searching for the truth requires a politically mature and responsible society. Bosnia & Herzegovina is far from a mature society; it is not democratic either, least of all an ideal society. In the merciless competition on the market, there is the need of the newspapers to sell a story according to the rule - the greater sensation, the better sale - and social interest for true information. If the reading public were mature, there would have been no dilemma.

However, for the sake of development of the freedom of the media it is worth taking the possible risk of abuse of freedom. First, for the sake of maturing of the public opinion and second, for irresponsible politicians. Dani, which is considered to be a serious weekly, has at least four times bigger circulation than As which is considered to be the most prominent representative of the yellow press. This is the strongest argument in favour of the maturing reading public. Does anyone still remember Slobodna Hercegovina which did not manage to find its way to the public despite a few sensations. Or, the Prst tabloid, Serb version of As which is full of sensations and exclusive stories lags far behind Nedjeljne novine from Banja Luka with its circulation.

The other reason refers to politicians. In conditions in which the executive authorities do not answer to the parliament and concealing of important facts the citizens are entitled to is not sanctioned, media are the only corrective. Much before the police and the judiciary media revealed the scandals in Sanski most, Buzim waterworks or spending of the money from the budget in Tuzla canton. That is why 1 KM is sufficient indemnity to make the people seek satisfaction in the truth, not the money. Edgar Faure, prime minister at De Gaulle's time, filed an appeal against a journalist once and demanded indemnity of 1 FF. After he had won the case in court, friends asked him why he had not asked for more money. "I did not seek profit, I sought the truth", Faure retorted.

Emir HABUL

(AIM Sarajevo)