|Steering Committee (CDMSI)|
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|Former Steering Committee (CDMC)|
Former Bureau of the Committee
|Committee of experts on Media Pluralism and Transparency of Media Ownership (MSI-MED)|
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|FORMER GROUPS OF SPECIALISTS|
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Conference Freedom of Expression and Democracy in the Digital Age -
Opportunities, Rights, Responsibilities, Belgrade, 7-8/11/2013
Conference "The Hate factor in political speech - Where do responsibilities lie?", Warsaw18-19 September 2013
|Conference of Ministers, Reykjavik - Iceland, 28-29 May 2009|
|European Dialogue on Internet Governance (EuroDIG)|
|Committee of Ministers texts|
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SAFEGUARDING FREE SPEECH AND THE RIGHT TO INFORMATION:
MEDIA IN TIMES OF CRISIS
Conference on the application of Council of Europe standards
with a focus on South-Eastern Europe
Strasbourg, 13-14 October 2005
- Dinko Kanchev, Chairman of the Executive Bureau, Bulgarian Lawyers for Human Rights Foundation, Sofia, Bulgaria
- Dunja Mijatovic, Director of Broadcasting, Communications Regulatory Authority, Sarajevo, Bosnia and Herzegovina
- Ranko Vujovic, Executive Director of UNEM (Union of independent electronic media of Montenegro), Podgorica, Serbia and Montenegro
* * *
Problems related to the restrictions of the freedom of expression aimed at the protection of the reputation of others; criminal and civil arraignment and sanctioning beyond the established European standards in cases of freely expressed ideas and opinions with special attention to journalists
1. It seems proper at the very outset to remind that the right to freedom of expression comprising all the three components formulated by Art. 10(1) of ECHR /“the Convention”/ (freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers) falls within the scope of the so-called “non-absolute” or “relative” rights protected by the Convention. To put it otherwise, the protection guaranteed by Art. 10(1) of ECHR is not peremptory; the exertion of the protected rights may be restricted in order to achieve certain aims postulated by the Convention itself (“legitimate aims”) and depending on conditions and prerequisites that the Convention as well prescribes.
Art. 10(2) of ECHR provides for the restrictions of the right to freedom of expression as follows:
Freedom of expression
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.
The next pages will be devoted to the restrictions of the rights under Art. 10 of ECHR as regards the protection of the reputation of others and especially with a reference to the extent to which restrictions under the Bulgarian law and practice comply with the established European standards. And since it seems to be a significant problem in Bulgaria, special attention will be paid to the restrictions of the free exercise of the journalistic profession.
2. The brief comment on the approaches of the institutions in Strasbourg to the restrictions of the rights under Art. 10 of ECHR will: a) recall the general prerequisites referring to the restrictions of all relative rights under the Convention (including the rights under Art. 10); b) point out the established specific requirements concerning the permitted interference with the freedom of expression.
The general prerequisites referring to the restrictions of all relative rights under the Convention were thoroughly examined in previous reports within the frame of this project. So a succinct review here is more than sufficient.
Like the other relative rights, Art. 10 of ECHR also stipulates that the ”formalities, conditions, restrictions or penalties” the exercise of the freedom of expression may be subject to, shall be “prescribed by law”. According to the case-law of the European Court of Human Rights /ECtHR, “the Court”/ the “prescribed by law” requirement has four substantial aspects: a) it is about the domestic law of the relevant Member State, which has to be compatible with the rule of law; b) the interference in the protected right should have some basis in domestic law; c) the restrictive rule must be accessible (i. e. it is to be appropriately published); d) it has also to be foreseeable (i. e. to be sufficiently precisely formulated so that the rule’s effect could be easily foreseen in the given circumstances by those concerned).
There should also be adequate legal procedures in restricting the right protected by the Convention, and this is another important component of the “prescribed by law” requirement.
The Strasbourg institutions have established clear criteria as well concerning the second general prerequisite for the admissible intervention of the authorities in the exercise of the rights under Art. 10 of ECHR - that the intervention should be “necessary in a democratic society”.
The consistent case-law of the ECtHR, when assessing in the given case whether the intervention of the authorities has been “necessary in a democratic society”, is based on the so called “proportionality principle”. The principle implies that where the question of a violation of a “relative” right, protected by the Convention, has been raised, a fair balance between the demands of the community and the requirements of the individual’s rights is always to be searched for. The assessment is based on the specific circumstances of the given case, so the proportion between the demands of the community and the requirements of the individual’s rights is not possible to be always the same. The rule is: where it has been found that in the particular case the interests of the community prevail, the intervention in the right’s exercise shall be qualified as “necessary in a democratic society”, and vice versa. The more radical intervention resulting in a more substantial restriction of the right concerned should require (if all the other conditions are deemed equal) a stricter approach in weighing the importance and urgency of the relevant public interest. In all “proportionality tests” the “legitimate aims”, which are explicitly prescribed by the Convention and justify the interference of the authorities in cases of public interest, play a leading role. To put it otherwise, the scope of the restrictions of the individual rights’ exercise and the manner the restrictions are imposed, should be proportionate to the legitimate (“prescribed by law”) aim sought to be realized. Only then the intervention may be assessed as “necessary in a democratic society”. It could be added that in this matter the Strasbourg institutions are generally inclined to afford the national courts rather broad frames of the “margin of appreciation”.
The essence of the specific requirements especially concerning the restrictions of the freedom of expression is defined by the Court’s cornerstone concept of this freedom as one of the essential foundations of a democratic society and one of the basic conditions for its progress.
The requirement firmly established by the Court that “exceptions to freedom of expression must be interpreted narrowly” is a direct consequence of this concept (see Oberschlick v. Austria, Application No. 20834/92, and the other Court’s judgments indicated thereby). What the ECtHR means is that the restrictions under Art. 10(2) of ECHR should be interpreted as exclusions from the general rule of Art. 10(1) of ECHR. Accordingly, the approach shall be stricter, when in every given case the fulfillment of the “necessary in a democratic society” requirement is to be appreciated. An example of this stricter approach, especially as far as “for the protection of the reputation of others” restriction is concerned, is what the Court held that, with reference to the demands of pluralism, tolerance and broad-mindedness without which there is no democratic society, Art. 10 of ECHR is not only applicable to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb (see “Theory and Practice of the European Convention on Human Rights” by P. van Dijk and others, 3rd edition, Kluwer Law International, The Hague-London-Boston, 1998, p. 559).
So it is only natural to proceed to the important role that journalists play in society. It is a role that imposes another specific requirement on the restrictions of the freedom of expression when the journalistic profession is concerned. This is the requirement for a particularly strict approach to the interpretation of the restrictions under Art. 10(2) of ECHR where these result in criminal or civil sanctions against journalists who have allegedly violated the protected right to reputation of others.
In many cases the Court has underlined this need of an extremely strict approach, stressing on the importance of the freedom of the press, which is essential to the concept of a democratic society. In the Court’s terms it has always been incumbent on the media to impart information and ideas which the public has the right to receive. Otherwise, the media would not be able to play their vital role of public “watchdog”. Keeping to this strict approach, the Court has found some concrete but still enduring solutions, which may also be qualified as established standards regarding the restrictions under Art. 10(2) of the Convention. So:
- The Court has reached that far as to admit that “the protection of a journalistic source – in itself not an expression of an opinion – comes within the ambit of Article 10 [of ECHR]” (see Ibid., pp. 559-560).
- The Court has made a careful distinction between facts dissemination and value-judgments, being always consistent on the opinion that truth of value-judgments is not susceptible of proof, so they cannot be subject to sanctioning; the interference in the freedom of expression in these cases is not necessary for the protection of the reputation of others (see Ibid., p. 572).
- The Court, stressing on the importance of the freedom of political debate, has found the limits of acceptable criticism wider as regards a politician as such than as regards a private individual; the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed and he must consequently display a greater degree of tolerance (see Ibid., p. 573); this is why public figures shall not be subject to preferential protection compared with the ordinary citizens where journalists have allegedly violated the protected right to reputation of others.
It therefore seems right to conclude that the devastating effect of aligning and sanctioning journalists beyond the established European standards is thus multiplied; it is an infliction on both rights – the personal and professional right of journalists to impart information and ideas and the irrefutable right of the public to receive them.
As it will be demonstrated further on, this vulnerability is rather typical for Bulgaria and justifies the special attention to the problem in this presentation.
3. It is probably worth here to recall some of the recommendations of the conference on “Defamation and the Freedom of Expression” for the South-East European States (Strasbourg, October 2002). Despite the risk to burden this presentation with too many details, the recommendations may be considered important in the light of the examined problems because they were elaborated with regard to the shared participants’ experience and the standards established by the Court.
Not all participants agreed with all recommendations (e. g. the recommendation to decriminalize insult and defamation) but those that follow were unanimously agreed on:
- There should be no imprisonment for defamation and insult; a moratorium should immediately be applied where national courts have already handed down such sentences and financial penalties should be proportionate. Similarly, in the case of civil proceedings, compensation should be proportionate, in order not to have a chilling effect on freedom of expression and information.
- There should be a defense of truly reported facts. There should also be a defense of fair comment where journalists have acted reasonably and in good faith.
- The burden of proof should in principle rest with the plaintiff in cases of defamation. Where the burden of proof is placed on the defendant, the latter should be able to be exonerated from his/her responsibility if he/she is able to provide reasonable evidence that he/she had acted reasonably and in good faith.
- There should be no special protection in both substantive and procedural laws or in practice (no matter criminal or civil) for public officials (including Heads of State), in accordance with the jurisprudence of the European Court of Human Rights.
- Alternative effective remedies to litigation, such as mediation or the publication of an apology or a correction or a reply, should be encouraged in cases of defamation and insult in order to reduce the number of lawsuits on these grounds. Where such alternative remedies are obtained, it should not be possible to have recourse to court proceedings.
- Measures should be taken to prevent excessive litigations.
It is not too hard to note that the recommendations of the conference are not only based on the general and special requirements to the restrictions under Art. 10(2) of ECHR that were already pointed out with regard to the protected right to reputation of others. The recommendations both specify and further develop these requirements as to the cases in which journalists are charged or sued for the ideas and information they have expressed or disseminated.
4. Still with regard to the freedom of political speech but beyond the field of the journalistic profession, it seems proper to underline another specific requirement concerning the restrictions of the freedom of expression. It is perceptible in the Court’s particularly strict approach to the restrictions of the freedom of expression of the politicians themselves and especially of Members of Parliament with a special attention to the opposition ones (e. g. the Castells v. Spain judgment of 23 April 1992).
5. It is to be admitted that the Bulgarian law has some rules and has undergone certain positive amendments that are totally inspired by the requirements and standards commented here. So in cases of defamation the perpetrator shall not be punished if the genuineness of the divulged circumstances is established. Besides, in 2000, the Amendment of the Penal Code /PC/ Act (State Gazette, No 21/2000) provided that the charges of insult and defamation should be no more subject to public prosecution but should only be prosecuted on the personal complaint of the victim to the court. The same amendment both abolished imprisonment as a sanction for insult and defamation and introduced fines in various rates. The reduced gravity of the sanction resulted in two more positive changes:
- If it is for the first time that the perpetrator has been found guilty of a crime, the criminal responsibility for insult or defamation is to be imperatively substituted by imposing an administrative sanction (Art. 78a of PC).
- The absolute prescription term for criminal charges was reduced to 3 years (Art. 81, paragraph 3 in conjunction with Art. 80, paragraph 1(5) of PC).
The newly adopted Mediation Act (State Gazette, No 110/2004) is also capable to nourish good hopes.
But although positively assessed, these amendments are less than sufficient. The next pages aim at pointing out the still existing problems concerning the restrictions under Art. 10(2) of ECHR with regard to the protected right to reputation of others, both in Bulgarian law and the practice to apply it.
The criminal aspects
1. The abolishment of imprisonment focused the attention on the issue of the rates of fines, which are now the basic sanctions for insult and defamation provided for by the law. Depending on the gravity of the concrete criminal act and on the aggravated legal qualifications of insult and defamation the rates may vary between approximately EUR 500 and EUR 7.500. The law affords the courts substantial powers of discretion in defining the particular sanction. It is not a rare phenomenon that the courts impose the sanctions in their maximum rates, willing to avoid conflicts with local public figures, who are powerful for the time being and allege to have been affected by media publications. Regrettably this practice is encouraged by the Supreme Court of Cassation /SCC/, which is the paramount judicial institution in Bulgaria. Quite indicative in this respect is the interview with the President of SCC published on 20 July 2002 by the daily “24 chasa” under the title: “It is just to adjudge the media to pay large sums of money”.
Meanwhile there are a significant number of local newspapers that are published only once or twice a week in rather small circulation. The gravity of the pecuniary sanctions that the editors risk to be subject to in cases of insult and defamation may practically result in a failure to publish the paper any further, even if the sanctions imposed are below the average rates.
The conclusion is that both the law and the practice to apply it offer solutions that are not compatible with the “necessary in a democratic society” requirement and with the recommendation to impose proportionate fines. There is an obvious discrepancy between the importance of the freedom of expression and the excessive protection of the right to reputation. In addition, the vast discretionary powers of the courts in determining the fine rates in every given case hardly comply with the “foreseeability” aspect of the “prescribed by law” requirement.
2. The graver sanctions (bigger fines) provided for by PC for insult or defamation if the “victim” is “an official or a representative of the public while exerting her/his duty or functions or because of the exercise thereof” may be commented in a similar manner. It suffices to recall the Court’s extremely strict approach to cases of intensified protection of public figures’ right to reputation and the respective recommendation of the Strasbourg conference of 2002.
3. It often happens so that the publications serve as grounds to engage the responsibility of the authors rather than to be qualified as “legal grounds” under Article 182.2 of the Criminal Procedure Code /CPC/ to initiate criminal proceedings against those, who are subject to the journalistic inquiry.
4. The burden of proof is shifted in a number of criminal cases. The accused journalists are demanded to establish the facts that are favourable to them in a manner similar to the evidence-collecting work of the police, the investigators and the prosecutors.
5. In many cases the criminal court panels do not make efforts to differentiate the various journalistic genres (e. g. information, inquiry, comment, interview, reproduced interview, essay, feuilleton, lampoon, etc.). Thus it becomes possible to charge journalists because they have shared opinions or have reproduced allegations, statements or assessments of others. This practice obviously contradicts to the “necessary in a democratic society” criterion since, if applied in such a manner, the restrictions and sanctions under Art. 10(2) of the Convention disproportionately injure the freedom of expression in its very core. It is worth reiterating here that public interest conceived as “the protection of the right to reputation of others” is capable to overwhelm the freedom of expression mostly in cases of pronouncing degrading speech or divulging untrue factual statements. It seems also proper to point out once more the requirement for a particularly strict approach to the interpretation of the restrictions under Art. 10(2) of ECHR where these result in criminal sanctions against journalists, as well as the Court’s stressing that Art. 10 of ECHR is not only applicable to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb (the latter is particularly important with concern to authors of satirical publications).
6. There are also cases of finding journalists guilty of defamation upon their refusal to reveal their sources of information. These cases should be assessed in a manner similar to that depicted in paragraph 5 supra.
The civil and administrative aspects
1. A number of newly adopted laws – e. g. the election laws, the Radio and Television Act, the Protection against Discrimination Act, the Protection of Personal Data Act, the Protection of Classified Information Act, etc. – introduced various restrictions of journalists’ and publishers’ activities. These exclusively were numerous and substantial administrative sanctions (including depriving of licenses and fines reaching approximately EUR 15.000). The problem is not about the restrictions themselves, which may be deemed reasonable and necessary. The problem is rather about the gravity and proportionality of the administrative sanctions that are equal to and even graver than the criminal sanctions for insult and defamation. To ignore the proportionality principle when weighing the concrete public interest in these cases could hardly be in compliance with the “necessary in a democratic society” requirement. An exclusively harmful effect may be expected with regard to the rights protected by Art. 10 of the Convention: thus the freedom of expression may not only be limited; it as well may be eliminated.
2. The civil courts also shift rather frequently the burden of proof in their practice. It is true that the law itself (Art. 45 of the Obligations and Contracts Act – OCA) stipulates that in cases of torts the guilt of the defendant shall be presumed unless she/he proves the opposite. But where the defendant is a journalist who has to oppose a compensation claim based on a publication, the courts often expand the scope of this refutable presumption beyond the issue of guilt. For instance, the defendant journalist may be demanded to prove her/his allegation that, in accordance with the values that dominate in society, the circumstances that she/he has divulged are not defaming, instead of demanding that the plaintiff should prove “defamation”. This is a practice that evidently contradicts to the “necessary in a democratic society” criterion and to the manner that the recommendations of the Strasbourg conference of 2002 further develop this requirement. The journalist should be exonerated from his/her responsibility, if he/she is only able to provide sufficient evidence that he/she had acted reasonably and in good faith.
3. The comments in paragraph 5 of the chapter on the criminal aspects above are accordingly and in full scope applicable also to the cases where journalists’ civil responsibility is engaged.
4. “Victims” “damaged” by insult or defamation allegedly committed by journalists or publishers are often awarded excessive compensations. The comparison with the courts’ practice to apply the State’s Responsibility for Damages Caused to Citizens Act makes it clear that a pre-trial detention for a couple of years, followed by an acquittal, results in awarding a compensation that is several times smaller than that awarded under OCA to a “victim” harmed by journalists or publishers. So the publisher of the newspaper “Dnevnik” was adjudged to pay Michael Chorny, who had been banished from Bulgaria for being a threat to national security, the sum of approximately EUR 10.000 as a compensation because of the qualification “the scandalous Russian businessman”. At the same time a Czech sportswoman in track-and-fields was awarded a compensation equal to approximately EUR 3.500 for being kept in custody for 9 months and for being prohibited to leave the territory of Bulgaria for a much longer period of time because her criminal case was finally dismissed. It is once more to be reiterated that the proportionality requirement is an important aspect of the “necessary in a democratic society” criterion.
5. The cases of suing Members of Parliament /MP’s/ for their statements in plenary Parliamentary sessions or at meetings of the Parliamentary Commissions (these were the MP’s Peter Dimitrov from the Bulgarian Socialist Party and Blagoy Dimitrov form the Union of Democratic Forces) are quite indicative for the state of the freedom of expression in the field of political speech, which is subject to special protection. The immunity of the MP’s is an obstacle to bring criminal charges against them but, according to the practice of the Bulgarian civil courts, it is not an obstacle to sue them for torts and to adjudge them even for their statements in plenary Parliamentary sessions or at meetings of the Parliamentary Commissions. The fact that the MP’s make their statements within the scope of their duties and powers is obviously of little importance to the civil courts. MP’s are also demanded to prove the circumstances they pay attention to or raise the question of the inquiry thereof in the way the organs of pre-trial criminal investigation are due to establish the facts of a given case.
And, to conclude, this general feature referring to all the aspects of the problems discussed here may be formulated: the requirement of a narrow interpretation of the restrictions under Art. 10(2) of the Convention is not much popular with the Bulgarian courts.
* * *
Dunja Mijatovic, Director of Broadcasting, Communications Regulatory Authority, Sarajevo, Bosnia and Herzegovina
Limitations of freedom of expression in times of crisis
Freedom of expression may be jeopardised by the censorships, which are very common in the times of war and crisis, because of the fear that security might be jeopardised by certain information. Therefore, it would be very important to regulate what is a subject to the censorship in times when the security of the country is endangered. Consequently, it would be possible to have a number of manipulations which are threats to the society and democratic structure.
We do not always appreciate the importance of these freedoms until they are tampered with through state interference and control. Without the expression of ideas and opinions and the publication and distribution thereof in the media no society can develop effectively. Politicians should therefore refrain from undue attacks on the media in an attempt to hide their own incompetence and corruption. Such attacks undermine the effectiveness of the media to inform and educate our citizens. At the same time, faced with social and political conflicts, and even threats to national security as the fight against terrorism, states are tempted to curb liberties in order to safeguard security and a misguided notion of public order. As citizens we should protect our freedom of speech and the freedom of the media to ensure that all other human rights are protected.
The balancing on the thin line becomes especially difficult in a society suffering the aftermath of a war and under the process of a reconstruction.
The case of Bosnia and Herzegovina
The situation before the establishment of the Communications Regulatory Agency as a unique regulatory body in Bosnia and Herzegovina, was giving away a picture complex media scene operating in a weak central state government and two Entity governments created by GFAP: the Federation and the Republika Srpska (RS). Like all other sectors of Bosnian society, Bosnian media also had to cope with the transition from a Communist government and centralized economy to a functioning democracy with a dynamic market economy in the aftermath of a catastrophic war. In this situation the broadcasters in many cases did not apply for any licence at all but just started broadcasting or changed frequencies or other parameters. Also, practice of usage of strong hate speech has been wide-spread, with many broadcasters being under a full political control. Many broadcasters were firmly rooted to matters and political units within their own entity and issues concerning their own ethnicity. Finally, political parties influenced editorial decisions related to content of news broadcasts and political programming.After the signing of the Dayton Peace Agreement, Bosnia and Herzegovina’s predominantly public media faced formidable obstacles to media reform. They struggled against official and political party pressure and censorship as well as profound self-censorship, byzantine regulatory structures, inadequate legal protections of basic press freedoms, economic dependence on editors and publishers tied to nationalist political party power structures, oppressive debt, systemic corruption, inflated levels of staffing, historical and renewed ethnic prejudice, and the “old Cluttered with redundancy and poor prospects for longterm financial viability, this environment was dangerously coupled with political pressure exerted upon media by local authorities. Intimidation of journalists remained commonplace, with more than 90 percent of all journalists in Bosnia and Herzegovina reporting political pressure from officials or their surrogates on a regular basis even several years (1999) after the Peace Accords were in effect. After the general elections in the Fall of 1998, the political pressure upon the media exerted by the dominant nationalist parties increased dramatically and became increasingly intolerable to both journalists and the international community. According to a survey of journalists in Bosnia and Herzegovina to determine the actual level and types of pressure conducted by the OSCE Media department at that time, there were so many complaints and the finding that more than 75% of journalists reported serious threats on their persons, families or outlets from political and government officials and/or the police. This situation led to establishment of The FreeMedia Helpline in 1999 which was to ensure that an actionable record of threats, harassment and intimidation of journalists existed and that all verifiable threats resulted in swift response and protection of the journalists threatened. In the two years in which Helpline operated (under the OSCE’s auspices), more than 250 verified cases of interference - all disturbing, some quite severe - were reported. All verified cases resulted in intervention from the OSCE and/or other local and /or IC agencies. Thus, the FreeMedia Helpline became the only hotline in the world that directly intervened at the time of threat - unless the journalist who filed the report specifically requested no action.
In cases where the rights of freedom of expression and movement of media professionals have been violated or in any other policy or legislative matters related to media was monitored by the “Media Ombudsman”, firstly established in 2000 both in the Federation and RS. Both offices were supported by local government.
To assist journalists and editors to understand and adopt the highest international standards of journalistic, editorial, ethical, legal, and technical media activity, there were a number of programs established to foster the professional practices of both journalists and editors. These included, A Press Code for Bosnia-Herzegovina, adopted in April 1999. This Code outlines acceptable standards of professional conduct for journalists in Bosnia and Herzegovina. Based upon this Press Code, journalists’ associations were helped to develop a system for self-regulation of the press and by the press. The Press Code states that journalists and their publications have an obligation to the public to maintain high ethical standards at all times and under all circumstances. Press Council which operates on the basis of the Press Code, is a body that represents both the media (the press, journalists and editors) and their readers (the public). The primary task of the Council is to review citizens’ and public complaints against press reports and to resolve disputes in a simple manner, quickly and free of charge. The working paper on the conduct of the Council reads that “the Council shall try to resolve each complaint on the basis of fairness, civility and common sense and shall only use instruments of journalism”.
In order to ensure the right to Freedom of Expression, as provided for in the Constitution of Bosnia and Herzegovina, the High Representative’s July1999 Decision required the State and Entity Governments to adopt a Law on Freedom of Information and for the Entity Governments to adopt a civil Law on Defamation (Libel). The Freedom of Access to Information legislation was adopted first by the Parliamentary Assembly of Bosnia and Herzegovina in October 2000, and subsequently by the Entity governments in early 2001. The Law on Protection Against Defamation was adopted in the Republika Srpska in May 2001 and (after DMA closed in 2001) was imposed by the High Representative on the Federation in November 2002. With adoption of these laws, Bosnia and Herzegovina has met a fundamental requirement for the entrance into the Council of Europe and has ensured that rights to freedom of expression as guaranteed by the Bosnian and Entity Constitutions have been codified in law and have been harmonized across all levels of government. Monitor the status of the treatment of journalists within Bosnia and Herzegovina annually by NGOs and public bodies (such as the Ombudsmen’s offices) responsible for the protection of human rights.
Limitations of freedom of expression- ORDO RTV Sveti Georgije case
The right to freedom of expression and related rights are considered to be fundamental rights and freedoms necessary for functioning of a democratic society. The CRA, as a state-level, independent regulator in the field of communications, makes great efforts to work towards protecting and developing this fundamental right.
In relation to this, a case was decided by the Human Rights Chamber for Bosnia and Herzegovina (the Chamber), in 2002, in relation to the actions taken by the CRA against the broadcaster “ORDO RTV Sveti Georgije”. Namely, the broadcaster in question has been a subject to a number of violations of the Rules, most of which related to usage of hate speech and incitement to violence. The final decision of the CRA in relation to this station was to revoke its provisional licence. As the CRA argued, these measures against freedom of expression of this station have been necessary in order to protect the rights of others (as this is stipulated by the Article 10 of ECHR). The Chamber decided that, the CRA, by passing a decision to revoke the provisional licence of RTV Sveti Georgije, did not violate the right to freedom of expression. The Chamber stated that the intervention of the CRA into freedom of expression was necessary in a democratic society, was prescribed by law and fulfilled a legitimate aim.
Additionally, decision of the Chamber states that there has been a violation of the Article 6 of the ECHR – Right to a Fair Trial, and that the finding of violation of the Article 6 of the Convention constitutes sufficient satisfaction to the applicant.
Therefore, the CRA is content to have received a judicial stamp and confirmation of its actions, as being prescribed by law and considered necessary in a democratic society, especially when passed by the highest judicial body for protection of human rights in Bosnia and Herzegovina.
* * *
Focus on South-Eastern Europe - application of Council of Europe standards (panel discussion)
I'm coming from the country where freedom of expression didn't exist for decades and the last decade of 20th century was especially a time with big crises and hard times for journalists. At that time journalism was not a normal job, it was an adventure, sometimes very dangerous for real professionals.
Freedom of expression in time of crisis is an issue that has become increasingly important after 11 September. On the other hand, I think that this issue is universal and lasting since the existence of the problem of freedom of expression.
Recent events when CNN was forbidden at first to report from New Orleans, and Tony Blair criticized the manner in which BBC reported on hurricane Katharine damage, warned us that we have to act at a global level and do something about safeguarding free speech.
Montenegro is not maybe a typical example now for the discussion we are having in this room, though it has been a real example for this in the last ten years of 20th century. But, it does not mean that tomorrow it wouldn't be, especially approaching 2006 when the state status of Montenegro will be decided upon. But I honestly hope that destructive energies in Balkan countries are spent.
Coming out of the times of crises in Montenegro was not so easy and is still lasting in all fields of society and of course in media. Although we have a liberal legal frame for media the remains of communist and nationalistic times still exist in journalists’ minds.
If we are talking about Montenegro today and this topic, I must say first that we have one of the most liberal media legislation in Europe. Broadcasters, both public and commercial ones are regulated by civil society through independent regulatory bodies. Print media are self-regulated. Libel has been decriminalized recently in Criminal Code. Law on Free Access to Information is waiting to be adopted in Parliament. In the legislation we almost completely implemented Article 10 of the European Convention on Human rights, but practice or reality is something different.
Generally my impression is that we are having at this moment more problems with implementing paragraph 2, of Article 10, ECHR.
Montenegro media scene, if we are talking about bad sides, is characterized by unprofessionalism. Journalists are not educated and not professional in their job and still suffering from self-censorship. Some media are not respecting professional and ethic standards in their work. There is no investigative journalism and access to information is very difficult.
Some media in Montenegro from time to time abuse freedom of expression and break Code of Ethics and Media Law. There are several reasons for that.
First, there are commercial reasons. Media publish sensational news very often without any checking or proves. They are doing this, aware of risk of harming somebody or publishing false information. Circulation is their only motivation.
Examples: A typical example of disinformation is the article published in daily “Dan”: “17 kilograms of cocaine seized”, at the end of February.
The article was published on the entire front-page. Relying on the anonymous source, they published the names of the group of people from Podgorica, who were arrested under suspicion of hiding a large quantity of drug. “Dan” even published a photo showing the seized drug and two members of the special police squad. The next day, upon the officially announced data, the public found out that the bombastic information of “Dan” is only disinformation. There was no cocaine. They confiscated just ten grams of a powder that was not narcotic.
On March 1, it was officially announced that Aleksandra D. Karadzic, whose name and surname “Dan” had already published as being involved in the drug affair, committed suicide in prison.
Comparing with West European newspaper practice I must mention Sunday Mirror and the article about trafficking children in Montenegro. A journalist from that daily wrote a whole page about Montenegro being a centre for trafficking children. One guy who had been mentioned as the main dealer sued this newspaper and got 40 000 pounds compensation, and Sunday Mirror published an apology and admitted that this article was untrue.
Other problems in our media are:
- Manipulation with information
- No protection of minors
- Women discrimination
- Ignoring the right to correction and reply
- Hate speech
I must be specific here and say that we have this kind of negative trends in two newspapers, one daily and one weekly. The problem is that the mentioned daily has the biggest circulation in Montenegro.
Problem with hate speech was occurring on one TV station, but after having been warned by Broadcasting Agency this program was stopped.
Montenegro have instruments through Broadcasting Agency to stop negative trends, but print media can be warned only by Self Regulatory Body which does not have any further instrument except warning.
I could not say that all these problems we are facing with are trends in media but from time to time they are causing serious problems and are typical examples of how media ignore Media Law and Code of Ethics. I am still talking about individual cases but media community in Montenegro has to take action in order to stop this practice, especially because one big political event is ahead of Montenegro. I am talking about referendum and media in the time of referendum. It is likely that some of them can become not informative but propaganda machines, ignoring any law or Codex. I am not expecting political crises but an event like this can possibly endanger freedom of expression. That is the reason why some media organizations are preparing to work and talk with the most problematic media about their professional standards to prevent undesirable occurrences in that period. I have an impression that media learnt lessons from the nineties.
I must admit that Montenegro media today are much more professional than they were a few years ago. I do not like giving compliments but I must mention a few examples of media solidarity.
The solidarity of media community - particularly regarding the issue about the protection of Tara Canyon, condemnation of the murder of Dusko Jovanovic, and opposing to the attempt of instrumentalising media - achieved something, although it is only a minimal result that should not be presented as a great success.
I have to inform you that since last year my organization UNEM has been running Pool of Lawyers to defend Montenegro journalists whose freedom of expression is in danger. The service is free of charge.
Regarding implementation of Case Law I have to inform you that in Montenegro judiciary there have been at least 10 verdicts to call upon Case Law of the European Court of Human Rights.
I can mention here cases such as Dragan Rajevic versus Dusko Jovanovic, where the judge in his verdict referred to paragraph 2 (3000 Euro fine), Article 10 ECHR, and Dusko Markovic versus company YumediaMont, where judge Zoran Pazin in the verdict referred not only to Article 10, ECHR, but also to specific cases from Case Law of European Court of Human Rights (6000 Euro fine).
Considering all taken proceedings there are civil and criminal lawsuits. Civil lawsuits are the most numerous and they refer to charges for damages to reputation and dignity. There are few criminal cases and they refer to libel and slander, and one dealing with defamation of the image of the Republic of Montenegro.
In particular the pool of lawyers consistently insists on implementation of the European Convention on Human Rights and Fundamental Freedoms in such a way that in the course of lawsuits relevant verdicts of the European Court for the human rights are presented to the court, and the application of those standards is requested in the specific case.
We have to fight for more independent regulatory authorities, more independent media, easy access to information in each of our countries, but we also must have, what is more productive, better cooperation on regional and global level. We must establish regional centres and one or a few global ones for defending the right to information in these specific times. I think that real challenges are waiting for us in near future and if we are not ready to react I think that we will lose this battle with politicians and other centres of power.