Defamation, Privacy, Journalistic Research By Gojko Bervar

In March of this year, top model Naomi Campbell won her lawsuit against the London-based Mirror tabloid, filed after Mirror had published a photograph of Campbell coming out of a Narcotics Anonymous meeting. The model had denied allegations of drug addiction, made by media during previous months, and also denied being an addict during court proceedings regarding her lawsuit against Mirror. Despite all evidence to the contrary, the court ruled in her favour.

It is significant to note that the model hadn't sued the newspaper on the grounds of denial of drug-taking, but rather presented the lawsuit as being about protection of the right to privacy and confidentiality.

The court's ruling in favour of Naomi Campbell sent an important message to the sphere of people whose livelihoods depend on the public. Should you get caught doing something less than admirable, do not sue the media for defamation. Try to force a favourable outcome by utilizing the detour we call the right to privacy.

Most ethics codes of press councils and other self-regulatory bodies distinguish the right to privacy of persons whose livelihoods depend on the public from that of persons who appear in the public eye after having suffered some sort of misfortune (or experienced something particularly fortunate) and are otherwise not accustomed to it. According to most of these codes, people who benefit from entering the public arena have to accept that, to a large extent, their private lives have also become public. They, i.e. these lives, can not be made available to the public solely at the express desire (and in favour) of actors, models, athletes or politicians, but become predominantly public, provided their owners are not able, or even willing, to sufficiently protect them. As an example of how even a public figure can protect their private life, let me mention the private life of Milan Kučan, the current president of Slovenia, whereby every attempt at penetrating the man's private home has failed within days. On the other hand, the President never used his private circle for public promotion.

Lives of public figures are not entirely their own, whether they like it or not. Regarding the Campbell case, one can surely consider the negative influence the top model's illegal drug use has had on her admirers. The Prime Minister's family life, his health or his mental problems concern our lives. We therefore have a right to be informed of these things. And that is not belabouring the fact that people executing a public function are prone to misuse the position any such function entails.

Even excluding the message the London court has sent in »the Campbell case«, the dilemma concerning the protection of the right to privacy is one of the main areas wherein lawsuits against defamation filed by public personalities, recently accustomed to their new positions, in transition countries as well as countries of developed democracy, take place.

Yet there exists an essential difference. While full-fledged democracies have, helped by rapid technological progress (which, in turn, also works to the advantage of tabloid press), attempted to protect the privacy of the home, regardless of the background of injured parties, the right to privacy in many transition countries has been perverted into protecting the privileged classes from the media. National courts have simply adapted the legislature, formerly designed to protect heads of ruling parties, to suit demands dictated from the outside by people interested in protecting their own privacy. In many transition countries, numerous legitimate articles proving nepotist conduct in public affairs by heads of state and their nearest have resulted in court proceedings, courts awarding massive sums in damages – not to punish newspapers for having published untruthful claims, but because reporters had invaded the privacy of the plaintiffs.

In many of these countries we have basically witnessed the multiplication of »the Campbell case«, as reporters and media have not been sued for wrongful use of information, i.e. defamation, but for having interfered with the privacy of heads of state and their respective parties. As usual, a valid concept, meant to protect people not used to the public eye against the aggression of media intruding upon their private lives in search of profit, has been used to protect those already in possession of power, money and influence. It is the latter who continually refer to those who will never take advantage of their right to protection of privacy, having neither the knowledge, the money, nor the power to do it. Examples of this abound: Croatia under Tudjman, Serbia under Milošević and – I've been informed of this during this year's visit to the country – Azerbaijan under Aliyev. The basic idea was, or in certain places still is, to exhaust independent media with lawsuits until they fold on their own.

But the Campbell case and others like it in fully developed democracies indicate that politicians and show-business people have quickly caught on to the courts' new sensibility towards privacy. Our Irish colleagues are facing a number of unreasonable compensation demands for alleged cases of defamation, mostly from politicians.

The policy established by the London court in the Campbell case may have a myriad of unforeseen effects on the freedom of public speech. These effects may prove even worse in transition countries, as politicians will now have a decision of a court in an undisputedly ordered and democratic country to quote when they decide to settle scores with media.

In March of 1998, Slovene weekly Mladina published its first article regarding illegal financing of the Slovene People's Party electoral campaign. Two months later, the party president, at the time also the vice-president of Slovene government, Marjan Podobnik, the person responsible for the financing, filed a lawsuit against the weekly. The matter appeared all the more unpleasant when one took into account Marjan Podobnik's campaign strategy – it relied on a story of honesty and legality, combined with guarantees that the party, should they be voted into office, would insure a morally spotless functioning of the government.

It had been these promises that got the Slovene People's Party voted in second and delivered it a place in the government. But now voters could pick up a magazine and read an article including copies of transfer orders, thus proving the party and its president had swindled the law. The plaintiff and his attorney – not unlike the Campbell case – decided not to base the lawsuit on Mladina's allegedly defamatory claims of illegal campaigning – existence of written proof made these claims difficult to contest – but to concentrate on one particular issue: had the president of the Slovene People's Party met with Metod Dragonja, director general of Lek pharmaceutical company, or not, and had the meeting included the president giving the director general any promises. This was where Mladina scarcely had any ground to stand on: sources assured it the meeting had taken place, yet, naturally, it wasn't possible to expect an honest account of a meeting that had led to illegal conduct from the two people involved.

The trick, for which most other media would fall, depended largely on the outcome of the trial. If the court found the meeting hadn't taken place, a superficial reader would assume Marjan Podobnik had won completely – that illegal campaign financing hadn't taken place either. In this aspect, the tactic came close to being completely successful. The ruling, which at first glance favoured the plaintiff, was interpreted thus (albeit only by superficial readers): the court finds no evidence of illegal financing. BUT THIS WAS NOT THE CASE AT ALL! Court found the financing had been irregular, but the main point it had to decide was: had the meeting between Podobnik and the director general of Lek taken place. Claims of this, the court ruled, had not been sufficiently substantiated by evidence. It took consideration at higher judiciary levels to find the claims of the Mladina weekly had not been offensive, but eventually the plaintiff lost.

Journalistic research is neither police work nor prosecutorial work. The minimum requirement for disclosure of an alleged impropriety is either a written document, backed by at least one source, or at least two information sources corroborating the same story. When researching a particularly explosive story, any professional journalist will make sure to find more information sources – and focus on sources which can be relied on to confirm their statements in the event of a lawsuit (unwillingness of sources to testify in courts is one of the main problems of investigative journalism). But the conclusion of journalistic research is still hardly comparable to a police investigation or the amount of materials a prosecutor would have to prepare before going to trial. If journalists worked that way, the majority of strongly resonant political scandals would still be unexplained, Watergate would be little more than a fairy-tale, whereas jurisdictional organs and police would be uncovering a mere half of the cases they do when backed by the crude proof-acquiring procedures journalists use to get their stories.

Yet such is the function of media – they are not courts (although some strive to be), they are not police, but they are not the popular voice either. In principle, they have to tackle issues prosecutorial organs do not or will not – they have to follow up on things voiced by the people and on rumors to try to uncover what lies beneath. I realize many of them slip up when attempting to do this. »Exclusive information«, offered by some sources to incriminate other people, often prove a tad too tempting to sparkle genuine interest in a journalist. But even in cases where media do not conduct the proof-acquiring procedure to its entirety, they are a welcome contributor to the mental health of society as well as its judiciary system. When a matter is opened by one media member, this causes others to get involved, creating an investigative apparatus unattainable even to a well-equipped police force. The credibility of every single contribution may not be impeccable, but it offers police and prosecutorial bodies enough to launch a »professional« investigation. That is why in most democratic judiciary systems journalistic mistakes are looked upon forgivingly. Journalists' actions are judged by whether or not malicious intent had existed, whether or not they acted in good faith as to the sincerity of their informants, and whether or not acquired information truly led to the conclusions they have drawn.

Of course, the problem of media treatment of public personalities in transition countries needs to be viewed through history of the media in former socialist countries. And even within this context there are important nuances. In countries of the so-called socialist camp, the transition from a totalitarian system to a system of media freedom transpired basically overnight. Czech Republic, Slovakia, Hungary, Poland and other countries have switched from a time when no one, apart from the politically problematic, was criticized, to a time of publicly assigning responsibility using full names, in the matter of months. (In some countries this was accompanied by a newly shaped pressure, claiming that since the new democratic forces were media's allies in overthrowing the old regime, media shouldn't inflate slip-ups of the new government and its officials.) But Slovenia and, partly, other former Yugoslav republics have by the end of the 1980's developed almost unlimited media freedom.

Courts were left empty-handed by the explosion of pluralism and, having no previous experience to draw from, even allowed writing, which went beyond limits of ethical propriety. Meanwhile, those branded by media were mentally still living in a system where there had been no question of the ability of politics to interfere with judiciary systems. Civil actions pertaining good name and honour were rare, since such matters were customarily settled outside courts, through party channels. In Slovenia this period of lawlessness before the collapse of one-party systems (also precipitated by other political circumstances) lasted almost half a decade. After the democratic turnover had been completed, politicians and other public personalities quickly adapted to the slow-forming judiciary practices. They swamped the courts with civil suits against the media.

After a few years of adaptation to new social conditions the proliferation of civil suits against journalists and media slowly modified the Slovene judicial practices. Luckily, we have seen increasing consideration of the specific nature of journalistic work and respect for professional ethics. Also, courts have quickly recognized the distinction between treatment of public personalities and treatment of individuals who only find themselves in the public eye once in their lifetimes. The formation of new judicial practices is apparent in the fact that not even 5% of lawsuits against media and journalists end in convictions. Courts, trapped in the collision of separate constitutional principles – the right to privacy and the right to being informed – repeatedly decide in favour of the public's right to be informed of public affairs and actions of public personalities. On their way to creating new standards, courts had to solve several problems attributable to their lack of experience. A typical case of this has been the conviction of a daily Večer journalist for her verbatim quotation of a statement regarding one of the members of the presiding court by a non-parliamentary party politician. It is an undisputed fact that present Slovene judicial practices exhibit positive signs of consistency in press-related lawsuits. Will »the Campbell case« compromise the experience gained thus far?