Regional Conference on Defamation and Freedom of Expression - Strasbourg, 17-18 October 2002 

Defamation – overview of law and practice in five South-East European countries

Presentation by Peter Noorlander, article 19

Dear Participants,

Free expression plays a vital role in the democratic process. Without a free flow of information and ideas, the public cannot formulate opinions about its government, elected officials and other matters of public interest. The media plays a particularly important role, providing the public with information and acting as a watchdog, exposing corruption and inspiring political debate. As the US Supreme Court has noted, “speech concerning public affairs is more than self-expression; it is the essence of self-government.”¹

In many countries, defamation law represents one of the most serious threats to the open discussion which underpins democracy.² While most people agree defamation laws serve a legitimate purpose, political bodies and public figures often abuse these laws to silence their critics. In some cases, governments effectively muzzle debate and critical voices by invoking harsh defamation laws to fine or imprison members of the opposition and journalists. In others, the technicalities of litigation and the cost of defending defamation actions serve to chill free discussion on matters of public interest.

Article 19, the Global Campaign for Free Expression, has been working on reform of defamation laws around the world, including the South-East European region. In our experience, despite continuous lobbying both by NGOs and by international organisations such as the Council of Europe, defamation continues to be a major problem in the region.

In this paper, I will provide an overview of current law and practice in five countries in the region: Albania, Bulgaria, Montenegro, Romania and Serbia.³ Together with our partners, we have been monitoring the situation in these countries; for each of them, rather than provide an exhaustive (and ultimately dry) overview of the law, I will summarise the most recent trends and developments. Then, I will identify certain common trends in the region. However, I would like to begin by restating some of the most pertinent international standards in this area, as crystallised in the Article 19 publication, Defining Defamation: Principles on Freedom of Expression and Protection of Reputation.⁴ I have several copies of Defining Defamation with me and it is available on our website.

International standards
A number of key standards relating to defamation law have emerged from the jurisprudence of the European Court of Human Rights, as well as the comparative jurisprudence of superior national courts and other regional and international human rights judicial bodies. As mentioned, we have collected these together within one publication, Defining Defamation, which, amongst other things, contains key principles dealing with criminal defamation, the status of public bodies and public officials, defamation defences and remedies. I shall discuss these in turn.

Criminal Defamation
One of the most serious problems in the area of defamation in Europe is the existence of criminal defamation laws in most countries, as well as the prevalence of their use in a number of Member States of the Council of Europe. The key problem with these laws is that a breach may lead to a custodial sentence or another form of harsh sanction, such as a suspension of the right to practise journalism. Even where these are rarely applied, the problem remains, since the severe nature of these sanctions means they cast a long shadow. Suspended sentences, common in some countries, also exert a significant chilling effect as subsequent breach within the prescribed period means that the sentence will be imposed. It is now well-established that unduly harsh penalties, of themselves, represent a breach of the right to freedom of expression even if circumstances justify some sanction for abuse of this right. For this reason, courts have been very reluctant to approve criminal defamation provisions.

Although the ECHR has never directly ruled on the legitimacy of criminal defamation laws, it has never upheld a prison sentence or other serious sanctions in that context. In Castells v. Spain, the ECHR reiterated that:

[T]he dominant position which the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media.⁵

In the same case, the Court stated that criminal measures should only be adopted where States act “in their capacity as guarantors of public order” and where such measures are, “[i]ntended to react appropriately and without excess to defamatory accusations devoid of foundation or formulated in bad faith.”⁶ It is significant that in that case, which involved a conviction for defamation, the Court referred to the application of criminal measures only as a means of maintaining public order, and not as a means of protecting reputations, the purpose of defamation laws.

Article 19 takes the position that all criminal defamation laws are contrary to the guarantee of freedom of expression. Our Principle 4(a) states:

All criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws. Steps should be taken, in those States which still have criminal defamation laws in place, to progressively implement this Principle.

However, in recognition of the fact that many countries do have criminal defamation laws which are unlikely to be repealed in the very near future, Principle 4(b) states:

As a practical matter, in recognition of the fact that in many States criminal defamation laws are the primary means of addressing unwarranted attacks on reputation, immediate steps should be taken to ensure that any criminal defamation laws still in force conform fully to the following conditions:
i. no-one should be convicted for criminal defamation unless the party claiming to be defamed proves, beyond a reasonable doubt, the presence of all the elements of the offence, as set out below;
ii. the offence of criminal defamation shall not be made out unless it has been proven that the impugned statements are false, that they were made with actual knowledge of falsity, or recklessness as to whether or not they were false, and that they were made with a specific intention to cause harm to the party claiming to be defamed;
iii. public authorities, including police and public prosecutors, should take no part in the initiation or prosecution of criminal defamation cases, regardless of the status of the party claiming to have been defamed, even if he or she is a senior public official;
iv. prison sentences, suspended prison sentences, suspension of the right to express oneself through any particular form of media, or to practise journalism or any other profession, excessive fines and other harsh criminal penalties should never be available as a sanction for breach of defamation laws, no matter how egregious or blatant the defamatory statement.

Who Can Sue
National courts increasingly recognise that it is necessary to limit governmental abuse of defamation laws by restricting the scope of who may sue in defamation. Courts in the UK, for example, have held that public bodies do not have the right to bring an action for defamation. The House of Lords stated in relation to a county council that, as an elected body, it “should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech.”⁷

Although the European Court has so far refrained from ruling out defamation actions by public bodies, it has noted:

The limits of permissible criticism are wider with regard to the Government than in relation to a private citizen, or even a politician.⁸

The rationale for restricting the ability of elected bodies to sue is threefold. First, criticism of government is vital to the success of a democracy and defamation suits inhibit free debate about vital matters of public concern. Second, defamation laws are designed to protect reputations. Any reputation elected bodies might have would belong to the public as a whole, which on balance benefits from uninhibited criticism. In any case, elected bodies regularly change membership so, as the House of Lords has noted, “it is difficult to say the local authority as such has any reputation of its own.”⁹ Finally, the government has ample ability to defend itself from harsh criticism by other means, for example by responding directly to any allegations. Allowing public bodies to sue is, therefore, an inappropriate use of taxpayers money, one which may well be open to abuse by governments intolerant of criticism.

Article 19 takes the position that public bodies should not be able to bring defamation actions, as reflected in its Principle 3:

Public bodies of all kinds – including all bodies which form part of the legislative, executive or judicial branches of government or which otherwise perform public functions – should be prohibited altogether from bringing defamation actions.

Public Officials
It is now well-established that public officials should tolerate more, not less, criticism than other people. This is based on two key factors. First, it is of the greatest importance that public officials, like public bodies, are subjected to open debate and criticism. Second, public officials have knowingly opened themselves up to criticism by their choice of profession.

It should be noted that this principle is of broad application. It applies, for example, to the manner in which complaints are lodged and processed, so that public officials, regardless of their rank, should not benefit from cases being taken by public prosecutors where this is not generally available. It also applies to the standards which are applied in determining whether a defendant is liable and the penalties which may be imposed.

Defences
A strong system of defences is essential if defamation laws are not unreasonably to restrict the free flow of information and ideas. The four defences noted below – drawn from international and comparative jurisprudence – are of particular importance.

First, it should be a complete defence to an allegation of defamation that the statements in question were true. One cannot protect a reputation one does not deserve and, where the impugned statements are true, there is no legitimate reputation to protect. This does not mean, however, that other causes of action, for example an invasion of privacy, may not be available. Where the statements involve a matter of public interest, the onus should lie on the plaintiff to prove their falsity.

Second, no one should be liable for a statement of opinion, defined as a statement which cannot be shown to be true or false or which cannot reasonably be interpreted as stating a fact (for example because it is rhetoric, satire or jest). Opinions are by definition subjective in nature and courts should not judge whether or not it is appropriate to articulate them. Furthermore, no one should be required to prove the truth of a statement of opinion, or value judgement.

Third, even where a statement of fact on a matter of public concern has been shown to be false, defamation defendants should benefit from a defence of reasonable publication. This defence is established if it is reasonable in all the circumstances for a person in the position of the defendant to have disseminated the material in the manner and form he or she did. The need for this rule is based on the harsh nature of the traditional rule in some jurisdictions according to which defendants are liable whenever they disseminate false statements, or statements which they cannot prove to be true. This traditional rule is particularly unfair for the media, which are under a duty to satisfy the public’s right to know and often cannot wait until they are sure that every fact alleged is true before they publish or broadcast a story. Even the best journalists make honest mistakes and to leave them open to punishment for every false allegation would be to undermine the public interest in receiving timely information. A more appropriate balance between the right to freedom of expression and reputations is to protect those who have acted reasonably, while allowing plaintiffs to sue those who have not. For the media, acting in accordance with accepted professional standards should normally satisfy the reasonableness test.

Fourth, certain types of statements should never attract liability under defamation law, while other statements should be exempt from liability unless they can be shown to have been made with malice, in the sense of ill-will or spite. The former category should include, for example, statements made during judicial proceedings, statements before elected bodies and fair reports on such statements. The latter category should protect statements which the speaker is under a legal, moral or social duty to make. An example would be reporting of suspected crime to the police. In each of these cases, the public interest in the statements being made outweighs any private reputation interest in suppressing the statements.

Remedies
It has already been noted that the guarantee of freedom of expression prohibits disproportionate sanctions for defamatory statements. In our view, this requires the authorities to establish a regime of remedies which, while redressing the harm to reputation from defamatory statements, also exerts a minimal chilling effect on freedom of expression. Traditionally, the dominant remedy for defamation has been pecuniary in nature but monetary remedies often have a negative effect on the free flow of information. A variety of less intrusive but still effective alternative remedies exist – such as the issuance of an apology or correction, or the publication of a judgement finding the statements to be defamatory – which should be prioritised.

Pecuniary awards should be subject to legal limits, as well as process guarantees, to ensure that they do not become excessive. The tendency to constantly increase awards – illustrated by the situation in the UK a few years ago where those subjected to defamation received more money than plaintiffs who had been rendered quadriplegics – must be combated.

Country survey

Albania

In Albania, defamation continues to fall under both criminal and the civil law. The Criminal Code includes five provisions that can be characterised as criminal defamation laws: simple insult, simple libel, insult of public officials related to their public function, libel of public officials related to their public function, and libel of the president of the republic.¹⁰ Since the Criminal Code does not define ‘insult’, the courts have been free to provide their own interpretation. Commentators report that, in some cases, ‘insult’ has been interpreted to include ‘humiliating, immoral or ridiculing words, images and gestures’, as well as satirical sketches. In others, defendants have reportedly been found guilty of ‘public insult’ for uttering insolent words in the presence of only six or seven people.¹¹ Maximum sentences of up to two years imprisonment are available; the sanctions available for insult against public officials are double those available for ‘simple’ insult.

While criminal defamation laws per se are inimical to freedom of expression, it is particularly worrying that under Albanian law, public officials enjoy enhanced protection. Such privileged standing of public officials goes against the established principle that public officials should tolerate greater criticism, not less. Moreover, public officials enjoy the assistance of public prosecutors in bringing cases.¹² These factors combine to have a seriously chilling effect on press freedom, one that deters investigative journalism and undermines the media’s public watchdog role.

Under Article 625 of the Albanian Civil Code, a person who has suffered ‘harm to the honour of his personality’ has a right to compensation. However, the Civil Code fails to provide a number of key definitions and standards, including on liability, burden of proof, and compensation. In particular, it is not clear whether there is a defence of good faith and there is very little guidance on the quantification of damages. This contributes to a tendency on the part of the courts to order highly punitive and disproportionate damage awards against journalists.

A recent study of defamation practice in Albania¹³ found that the courts display an alarming lack of sensitivity to human rights standards, failing entirely to give due weight to the importance in a democratic society of the right to freedom of expression. Case law of the European Court of Human Rights is routinely ignored and even arguments based on the Albanian Constitution, which guarantees freedom of expression in Article 22, are not addressed. Worryingly, the courts do not appear to distinguish between statements of fact and statements of opinion, and presume bad faith in nearly all cases in which a journalist cannot absolutely prove the truthfulness of a statement. This includes those cases where a journalist refuses to disclose his or her sources. The study also found that defamation judgments tended to be poorly reasoned and failed to provide sufficient evidence to justify the criminal and civil sanctions that were imposed on the defendants. Plaintiffs often bring civil and criminal defamation actions simultaneously.

In many ways, the August 2000 case of Kryemadhi v. Patozi is indicative of the shortcomings of Albanian defamation law. Monika Kryemadhi, head of the Socialist Party youth organization and spouse of Prime Minister Ilir Meta, brought criminal and civil defamation charges against the editor-in-chief of Rilindja Demokratike, Astrit Patozi, and two reporters. The charges against Patozi concerned articles alleging that Kryemadhi had spent large sums of money at hotels, and questioned the source of these funds. The Tirana District Court held that since Patozi had produced no evidence to prove the truthfulness of his allegations, he was guilty. However, Patozi claimed that revealing the name of the hotel employee who provided the information would have serious repercussions for that person. In addition, Patozi’s counsel argued that shifting the burden of proof to the defendant – rather than requiring the plaintiff to prove both the falsity of the factual allegations and the defendant’s malicious intent – violated the constitutional principle of the presumption of the defendant’s innocence. In no way did the court acknowledge that the plaintiff’s status as a public figure justified detailed scrutiny of her actions, particularly when the article alleged corruption, a matter of intense public debate and importance in post-communist Albania. Punitive as well as actual damages (civil and criminal) were awarded, totalling US$5,000 (more than sixty times the average monthly wage in Albania). Patozi appealed but the trial judgment was upheld in full, the appeal court dismissing the defendant’s presumption of innocence challenge as “unfounded in law”. The appeal judgment did not discuss the other constitutional arguments raised and dismissed, without comment, Patozi’s argument that the district court had violated his right not to disclose confidential sources. At the final appeal, the High Court dismissed the claim as ‘inadmissible,’ without hearing the parties and without providing reasons.

The Patozi High Court ruling is of concern because the case raised important issues of substantive criminal law, constitutional law and international human rights law. By dismissing the case at the admissibility stage without a hearing, the Albanian High Court was criticised for abusing this state of the proceedings to decide the merits of an appeal while avoiding debate and ignoring the need for a reasoned judgment. This also conveniently bypassed the need to hear a politically sensitive case. Most, if not all, recent appeals to the High Court in defamation cases have been dismissed in a similar fashion.¹⁴

Bulgaria

Under the civil law, both natural and legal persons may institute proceedings for insult, slander and libel. Natural persons can claim moral as well as material damages; legal persons can only claim material damages. The defendant bears the burden of proof on the issue of truth. Insult and slander are criminal offences under Articles 146-148 of the Criminal Code. Libel is part of ‘aggravated slander’, which includes slander ‘spread through printed matter’. Only natural persons can be charged with a crime; thus, criminal defamation charges cannot be brought against corporate publishers (although individual journalists can be prosecuted).

While both civil and criminal defamation are problematic, a reform process of sorts is underway. In March 2000, the Criminal Code was amended, abolishing custodial sentences for insult and defamation and providing that criminal liability for insult and defamation could no longer be sought ex officio. This meant that public officials could no longer use the office of the State prosecutor to initiate proceedings. However, the amended law continues to provide for higher standards of protection for public officials and the maximum fine is still set at a disproportionately high level, namely 15,000 Bulgarian leva (approximately US$7000 or 60 times an average salary).

The courts also play their part in the reform process, in positive as well as negative ways. Faced with a recent challenge to decriminalise defamation, the Constitutional Court rejected the notion that criminal defamation was incompatible with the right to freedom of expression. The Court also justified the more severe penalties for defamation of public persons in their conduct in office by the perceived need to protect the prestige of public institutions. In a more positive fashion, in May 2000 the Supreme Court of Cassation held that a journalist will not be liable if he or she has made a conscientious and detailed investigation and used various sources, even if the facts later turn out to be incorrect. The Court’s Opinion stated: “If the necessary investigation to establish the truth of information is carried out in accordance with the established journalistic practice, the internal rules of the respective professional chamber or publishing house through the use of the objectively existing or possible sources of information, the journalist has acted in good diligence which exempts criminal or civil liability for defamation”.¹⁵

A survey¹⁶ of the immediate consequences of the changes to the law introduced in 2000 revealed that criminal proceedings against journalists were still being brought far more frequently than civil claims. There were far more cases brought in the regional courts than in the capital and one particular region, Vratza and Montana, accounted for 24 judicial proceedings out of the 97 cases surveyed. In this region, some defendants had multiple cases filed against them by local politicians and business people, suggesting that charges of defamation and insult were being used to silence journalists investigating cases of corruption. One explanation for this is that while larger national media organisations pick up their journalists’ legal bills, journalists from the smaller regional media outlets do not enjoy such protection. Together with the fact that they are less likely to be defended by specialised media lawyers, this makes them a soft target. The survey also found that in the majority of civil cases, claimants sought high pecuniary compensation, in excess of 10,000 leva. In 25 of the 60 criminal cases surveyed, civil claims for damages accompanied the criminal complaint. Cases were shown to last for a minimum of two years and of the twenty cases concluded in the period surveyed, only one resulted in a successful prosecution. In 12 of the closed proceedings, the journalists were acquitted and 6 of the cases were closed on the grounds of default or withdrawal of the complaint.

Although the March 2000 amendments were a step forward, it is clear that further reform is needed to bring Bulgaria’s law fully into line with international standards. Criminal defamation should be completely abolished, as should the provision of greater protection for politicians and public officials. The high fines for defamation are mentioned in the EU’s November 2001 accession report and the high number of criminal cases that are still brought against journalists combined with the low success rate of plaintiffs indicates that Bulgarian journalists continue to be targeted by vexatious plaintiffs. While the courts appear to be upholding the rule of law and dismissing unfounded complaints, the fact that a case takes an average of at least two years to be resolved means that there is a significant period during which the threat of a crippling fine exerts a chilling effect on freedom of expression.

Only a few Bulgarian defamation cases have so far reached Strasbourg and none of them have proceeded to the merits stage. In one, a lawyer complained that defamation proceedings had been initiated against him in order to exert ‘psychological pressure’; however, the European Court found that this complaint was unsubstantiated.¹⁷ In another, the complainant had published “a blunt personal accusation in the absence of a reasonable factual basis whereas he could have achieved his goal to inform the public”; he received a suspended sentence for defamation but the Commission dismissed the complaint that this breached his right to freedom of expression.¹⁸ Another complaint came from a different corner; the applicant complained about libellous reports in fifteen newspapers about the Macedonian minority in Bulgaria and the lack of redress under Bulgarian law. This application was dismissed on technical grounds.¹⁹

Montenegro

In Montenegro, defamation continues to be a criminal offence. Article 76 of the Criminal Code provides for a fine of up to six months imprisonment for damaging the honour or reputation of a person; this is increased to up to one year in prison if the damaging information is disseminated through the media. Article 77 of the Criminal Code provides for imprisonment of up to three months for insult and again increases this term to six months if the alleged insult is disseminated via the media.

Freedom of expression is both constitutionally guaranteed and protected through the 1998 Public Information Law (the new Media Law is yet to be implemented), which guarantees freedom of expression “at the level of the standards as contained in international acts on human rights and freedoms (the UN, OESCE, European Council, European Union)”. Article 1 of this Law further provides that it shall be interpreted in compliance with the principles contained in the European Convention on Human Rights and shall be governed by the practice of the ECHR. However, the scope of this protection remains unclear. In a recent case observed by ARTICLE 19, the defendant was a politician. Since the Public Information Law relates to freedom of the press, it was argued that the defendant did not enjoy its protection.

In Montenegro, defamation law is actively used as an instrument of repression against the media. In December last year, Vladislav Asanin, the editor of the Montenegrin daily Dan was sentenced to three months in prison as well as a fine of 15,5000 euros. The proceedings had been initiated by Milo Djukanovic, over reports published on the Balkan tobacco mafia. The same reports had previously appeared in the Croatian newspaper Nacional. The judgment was affirmed on appeal.

In Montenegro, too, something of a reform process is underway. Amendments have been proposed to the Criminal Code, abolishing the crime of public insult of government institutions and removing the right of a public official to use the public prosecutor to bring criminal defamation proceedings. Whilst decriminalising defamation is not yet fully on the agenda, this is a step in the right direction. In contrast,²⁰ it appears that there has recently been a notable increase in the number of defamation cases brought. The Montenegro Helsinki Committee has reported that “the number of cases related to defamation in the media increased. There are some particularly interesting cases in which several … journalists were accused and the plaintiffs are known as the promoters of hate speech, war campaign and extreme nationalism (e.g. Mila Stula vs. Branko Vojicic and the Radulovic case). Actually, it means a part of the new tendency to avoid our facing the past, war crimes etc. It is also related to the growth of extreme nationalism.”²¹

Romania

Recent legislative events in Romania make it difficult to summarise the current state of the law.²² What is clear is that defamation remains a criminal offence and that the criminal law is a favourite tool of those who wish to silence their critics. The sheer number of defamation cases is staggering. In 2001 alone, some 400 verdicts were passed under the various expression-related offences in the Criminal Code; 33 of these were against journalists who received suspended sentences.²³ In May this year, Associated Press reported that at that point, some 400 journalists were being sued for libel and insulting authorities.²⁴ Malicious intent is not required and therefore statements made in good faith are punished if the defendant cannot prove their truthfulness. Although prison sentences are seldom imposed, their continued existence has an intimidating effect on the journalists. It can in fact be argued that the frequent imposition of suspended prison sentences has an even greater chilling effect on freedom of expression. For these reasons, the Romanian Helsinki Committee has recommended to the Romanian Parliament that, “the liability for calumny should be shifted to the civil law, or, at least, the prison penalty should be eliminated” parallel “to introducing the malicious intent requirement in the text”.

Anecdotal evidence also demonstrates the extent to which defamation laws are abused to stifle legitimate expression. A May 2002 report by the US Helsinki Commission relates that “in December 2001, the General Prosecutor announced that he was investigating whether the singing of the Hungarian national anthem at a private meeting constituted a violation of article 236 (defamation of national symbols). That is, he used scarce taxpayer resources to consider whether people should actually be sent to prison, for up to three years, for singing.” The same report provides two other recent examples of abuse of defamation laws. In January 2002, the General Prosecutor ordered the arrest of a journalist and a former government official on the grounds that they were suspected of circulating email messages accusing Prime Minister Nastase of corruption. These actions were portrayed by the General Prosecutor as damaging to national security and Romania’s international relations and a violation of article 168 of the Criminal Code (disseminating false news). No proceedings were initiated. Then, on 3 May 2002, Romanian journalists repeated a Wall Street Journal report entitled “Among NATO Applicants, Romania Draws Particular Scrutiny”, which alleged that the continued presence of Securitate agents in Romania’s security services was a matter of concern in the context of Romania’s candidacy for NATO. In response, on 10 May, the Minister of Defence issued a warning to journalists that “life is too short, and your health has too high a price to be endangered by debating highly emotional subjects.” In addition to heightening concern that old Securitate practices, if not actual agents, were alive and well in Romania, this threat (which was issued in writing) triggered yet another row between the government and journalists. On 16 May, the Minister issued a statement saying he regretted that his 10 May statement had been misinterpreted and that it was only intended to be humorous.

Despite both the Council of Europe and the European Union identifying criminal defamation laws as a major stumbling block in Romania’s transition to a truly democratic society, little progress has been made in this direction. In 1997 the Parliamentary Assembly of the Council of Europe issued Resolution 1123 on the ‘honouring of obligations and commitments by Romania’ in which it was stated that defamation laws ‘seriously imperil the exercise of fundamental freedoms’. In the November 2001 EU report on Romania’s progress towards accession, the provisions in the Criminal Code that restrict the activities of journalists were described as ‘of particular concern’: ‘The articles dealing with slander and libel are restrictive and the extensive use of legal proceedings against journalists, in particular when they have made allegations of corruption, undermines the freedom of the press’. This report also highlighted the need for reform in other articles in the Penal Code dealing with ‘verbal outrage’ and ‘offences against the authorities’ which are at risk of being abused by the authorities in stifling public criticism.

On 23 May this year, the Romanian Government announced an Emergency Ordinance to reform the Criminal Code in order to rectify the embarrassing incident the previous week when the Romanian delegation to the Parliamentary Assembly of the Council of Europe announced that Articles 205 (insult), 206 (libel), 238 (offence against the authorities) and 239 para 1 (verbal outrage) had been removed from the Criminal Code. In fact draft amendments to the Criminal Code were passed in the Chamber of Deputies last year but they were never discussed in the Senate. The draft amendments, if adopted,²⁵ would remove the outdated crime of ‘offence against state authorities’ and imprisonment for insult, and reduce the maximum sentence for ‘calumny’²⁶ to two years (currently three), or three years if the offence involved a public servant in the exercise of his/her function (down from four years). Unfortunately, a new offence is also proposed, which would punish a threat against a public servant who holds a position involving the exercise of the State authority in their line of duty or related to acts they committed in their line of duty. It is not entirely clear what this would mean, but the maximum sentence will be four years.

I should note, finally, that Romania is one of the few countries in the region to have had its defamation laws considered before the European Court of European Rights. One case, concerning a conviction for criminal defamation in respect of which proceedings had been discontinued, resulted in a defeat for the government.²⁷ However, Romania won a recent case in which the applicant had used extremely derogatory language to criticise three teachers – the Court considered the applicant could have expressed his criticism without branding the teachers criminals.²⁸

Serbia

With the coming to power of the Democratic Opposition of Serbia (DOS) in October 2000, the situation regarding freedom of expression has improved. Many of the provisions in the repressive 1998 Public Information Law were found to be unconstitutional and the law was repealed in February 2001. In addition, charges were dropped in the controversial case against journalist Miroslav Filipovic and (some) equipment that had been confiscated from media outlets was returned. Many broadcasters who had been unable to operate consistently under Milosevic were allowed to resume broadcasting. However, despite initial enthusiasm, the overall achievements since 2000 have been disappointing. Only some of the equipment that had been confiscated under Milosevic was returned and only about a third of the 31 million dinars (US$450,000) paid in fines by media outlets under the Public Information Act was given back, despite promises to return the full amount.

Criminal defamation laws remain in force. Article 92 of the Criminal Code, regarding libel and slander, provides for a prison sentence for anyone who “discloses or circulates any untrue material about a person, which can harm that person’s honour and reputation.” Article 93 states that “anyone who insults another” is liable to imprisonment and Article 94 provides for a prison sentence for anyone who discloses or circulates information about a person’s private life that could be harmful to the “honour and reputation” of that person. Article 96 lists a number of provisions under which individuals are exempt from punishment for expressing their opinions if there was no intention to insult, including, for example, where the context is an individual carrying out “scientific or artistic work”. Even though this Article also stipulates that there should be no punishment for individuals expressing an insulting opinion in the course of their “journalistic profession”, it does not appear that this is uniformly applied in practice. Article 98 provides for imprisonment for “anyone who publicly declares scorn for the Republic of Serbia or another republic of Federal Republic of Yugoslavia, their flag, coat of arms or anthem, or the president of the republic, the parliament and the government, the head of the parliament or the president, related to the performances of his duties”.

The (threatened) use of Serbia’s criminal defamation laws has to be seen against the wider background of attacks on and harassment of journalists. Throughout 2001, and also this year, journalists who issued critical reports have been threatened with violence. For example, after B92 broadcast a programme in April 2001 on the 1995 Srebrenica massacre, the station reportedly received numerous telephone threats, yet the government failed to denounce them or offer support to the station.²⁹ It is not only B92 that receives such threats. On 23 April 2002 it was reported that Vojkan Ristic, Vranje, correspondent for the Belgrade daily Danas and Beta News Agency, had received a series of telephone threats in the afternoon of 22 April. This was allegedly due to an article published in Danas entitled “Simpo paid 10 million without proof of receipt of goods”. Allegedly the threat was: “Don’t hide behind the initials R.D., you’ll end up in a plastic bag”. In another incident, in June 2001, Milosevic supporters allegedly attacked and beat three journalists – Milos Petrovic, of Sudio B Television, Suzana Rafailovic of Beta New Agency and Petar Pavlovic of Fonet.

Public officials as well as government departments frequently resort to defamation laws to stifle criticism. On 12 May 2002, the Serbian Road Directorate announced that it would file criminal charges against Blic News for an article, “Surcin Boys Build Roads Through Serbia” on the construction and restoration of highways and tenders issued by the Serbian Road Administration.³⁰ The article alleged that the job of building the Blegrade-Nis highway had been assigned without allowing for fair competition. The author of the article refuted the information, reportedly further to pressure from the Road Directorate.³¹ In June 2002 it was reported that journalists from the Kragujevac weekly Nezavisna Svetlost were regularly being sued for libel by prominent local individuals and had had to appear in court twenty times in February 2002.³² Also in June, the Minister for Agriculture, Dragan Veselinov, sued Novi Sad daily Gradjanski List for 1.5 million dinars (about 250,000 Euros), claiming emotional suffering and damage to his reputation. The offending article in the daily claimed that Veselinov had abused his official position by poaching in Serbian hunting grounds.³³ As a result of the constant threat of proceedings, the Independent Association of Serbian Journalists recently held a protest against the high number of legal proceedings initiated against journalists in Southern Serbia.³⁴

At the moment, some 300 new cases are going through the courts, with many of the reporters being sued by the former regime’s associates as well as by members of the ruling coalition.³⁵ Most recently, an official in Djindjic’s Democratic Party, Radoslav Ljubisavljevic, charged B92 with libel after the station reported that he had been handed a two-year suspended sentence in 1994 for forgery and abuse of power. Ljubisavljevic did not dispute the report’s facts but sued B92 for ‘mental anguish’. “What really hurts Ljubisavljevic is the truth”, the Association of Independent Electronic Media commented.

Common trends and conclusions
The first and foremost conclusion is that criminal defamation laws are still in existence across the region and, worse, that they are in active use. In many countries this situation is exacerbated by the fact that public officials and even State institutions enjoy enhanced protection under the criminal law and may resort to the heavy arm of the State prosecutors to litigate cases on their behalf. Combining the two ‘evils’ of criminal defamation and added protection for public officials, this makes for a hostile environment for freedom of expression. It goes without saying that the mere existence of these laws acts to inhibit seriously the right to freedom of expression, particularly given the possibility of harsh sanctions. Even where these are rarely applied, the problem remains, since the severe nature of these sanctions means they cast a long shadow.

Another worry is that in some countries in the region, (criminal) defamation laws are used as a form of harassment. Rich and powerful plaintiffs bring or threaten to bring cases simply to bully journalists, or to litigate them into bankruptcy. Such cases may drag on for a prolonged length of time, a year or more, before being withdrawn or dismissed. Even if no verdict is recorded, the near-constant involvement in legal proceedings for some defendants makes it impossible for all but the largest media concerns to engage in the kind of critical and investigative reporting that is necessary in a democratic society. This could be seen as evidence of a lingering culture of intolerance towards criticism within some of the countries and the lack of acceptance of a vigorous press. The apparent lack of recognition of the defence of ‘reasonable publication’ in many of the countries surveyed and the twin-track use of civil and criminal defamation laws is another symptom of this.

While many of the countries in this region have engaged in a process of reform, these are proceeding at a very slow pace and usually fail to address all of even the more serious problems. Some official pressures – notably the EU dialogue, but also the constant CoE monitoring – do have a positive effect, but the extent to which countries are truly working towards decriminalisation of defamation is unclear. In this regard, it does not help that criminal defamation laws remain on the statute books of many of the EU Member States and that the European Court of Human Rights has so far not taken a principled stance on this issue. Really positive developments can be counted on the fingers of one hand and, in the last six months or so, the reform process in some countries has now stalled altogether. This means that the present conference probably comes at an opportune moment: it is time to breathe some new life into the reform of defamation laws in the region.

Thank you.