This Book Is Published Within SEENPM South East European Network for Professionalization of Media
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This book is published within SEENPM South East European Network for Professionalization of Media http://www.seenpm.org/ http://www.mediacenterbg.org/ Media Development Center, Sofia, Bulgaria 2007 1 ISBN 978-954-9396-05-8 ©2007 | Media Development Center | Sofia 2 FREEDOM OF SPEECH IN SOUTH EAST EUROPE: MEDIA INDEPENDENCE AND SELF-REGULATION This book is published within SEENPM South East European Network for Professionalization of Media 3 Table of contents 9 | Media Self-Regulation Practices and Decriminalization of Defamation in the Countries of South East Europe in 2006 10 | Summary of the country reports and discussion of defamation Alexander Kashumov 20 | Albania Ilda Londo 64 | Bosnia and Herzegovina Mehmed Halilovic 94 | Bulgaria Ognian Zlatev Alexander Kashumov 128 | Croatia Geza Stantic Gordana Vilovic 160 | Hungary Peter Bajomi-Lazar Krisztina Kertesz 191 | Macedonia Boris Georgievski 219 | Moldova Olivia Pirtac 270 | Montenegro Petar Komnenic 283 | Romania Ioana Avadani 4 317 | Serbia Milica Miletic 345 | Slovenia Brankica Petkovic Jernej Rovsek Gojko Bervar Spela Stare 370 | Challenges to Media Self-Regulation in 2007 372 | Albania Ilda Londo 394 | Bosnia and Herzegovina Irham Ceco 414 | Bulgaria Danail Danov 431 | Croatia Renata Ivanovic 455 | Hungary Peter Bajomi-Lazar Borbala Toth 482 | Macedonia Boris Georgievski 504 | Moldova Nadine Gogu 528 | Montenegro Petar Komnenic 542 | Romania Iulian Comanescu 564 | Serbia Klara Kranjc 584 | Slovenia Brankica Petkovic 5 MEDIA SELF-REGULATION PRACTICES AND DECRIMINALIZATION OF DEFAMATION IN THE COUNTRIES OF SOUTH EAST EUROPE IN 2006 Summary of the Country Reports and Discussion of Defamation By Alexander Kashumov General overview Although we have entered the age of Internet and digital television, classical restrictions on freedom of expression and information such as defamation laws still exist in Europe. In the countries covered by this research, defamation legislation has been used, frequently with the intent to freeze public debates over issues of public concern. Graver penalties imposed on journalists or media outlets for libel against public officials by virtue of laws or developed court practice strongly contribute to that chilling effect. At the same time, in all of the countries studied, there are efforts to change the situation. Regarding the protection of journalists’ sources, in practice there have been only a few exceptional cases of unacceptable interference. However, the scope of protection provided by different national laws varies. Still, in many of the countries criminal law prescribes severe sanctions for everyone who disseminates state or other secrets, regardless of their professional obligation to protect them. This creates both the possibilities for cover-ups of government wrongdoings and narrows the media debate 8 over such issues. The proliferation of laws regulating access to governmental information in the region, as well as across the globe, combined with their use by journalists, is a promising step ahead for investigations and for better professionalism. Despite the countries’ different levels of development, population, GDP, incomes, etc., what they have in common is a tradition of undemocratic government left over from the communist era, which brings elements of secrecy, unaccountability, and intolerance to public debates, limiting pluralism and criticism. This makes the newly-established democracies vulnerable to undue prosecution of free speech, especially in the media field. Hence, the related laws and practices take on an even greater importance than in Western democracies. There are some differences in the countries’ legislative frameworks regulating freedom of expression and information and media. Most of them have laws regulating both broadcast and print media (there are Press laws in Moldova, Albania, Hungary, media laws in Slovenia and Macedonia, and a law on public information in Serbia), while in the others the latter are deduced from specific rules. In some countries there are rules for the registration of print media, whereas in other countries they are subject to a simple registration procedure in the country’s commercial register. After all the years of transition, problems with registration of media outlets arise only in exceptional cases (e.g. the single case in Moldova). Depending on the context, broadcast laws, mass media laws, press laws and laws on public information prescribe rights and duties for media and journalists. Broadcasting, radio and television laws exist everywhere, forming not only the legal basis for the 9 operation of electronic media, but also the rights and liabilities of journalists working there. The role of the courts in cases involving media freedom is sometimes assessed equivocally in the country reports. While in some countries (Hungary, Bulgaria) there are landmark constitutional court rulings on freedom of expression and information that interpret the constitutions and related statutes in the light of standards stemming from the European Convention on Human Rights, the operation of ordinary courts in criminal and civil defamation cases often is regarded with criticism. Some reports mention the courts’ lack of independence, but obviously it is more a matter of a lack of training and knowledge on the part of the judiciary, combined with compassion for public officials, bad attitudes toward journalists and, in exceptional cases, corruption (in a broader sense), rather than a formal dependence on the executive branch. Often court decisions awarding exceptionally large fines or damages for libel can be explained by a lack of sufficient knowledge and training in European standards. Indeed, courts that impose excessive sanctions commonly appear to disregard of the proportionality principle. Attempts by politicians and businesses closely related to politics to influence media are reported in all the country studies. In some countries political figures or future politicians are themselves media owners. Furthermore, the lack of transparency of media ownership in most countries raises suspicions that hidden political, business or even mafia interests may be behind certain outlets. On another hand, journalists in some countries are often underpaid and poorly protected by labour conditions and contracts, which makes them more vulnerable to legal action for defamation. Moreover, in lawsuits 10 they face opponents who are high-ranking civil servants and politicians with considerable influence and resources. Legal help for journalists in such cases by media associations is still not a well-established practice. Despite the ongoing problems summarized above, there is nevertheless room for optimism. Laws and practices are unanimously changing for the better. However, it is important to keep following these issues, since it is frequently the case that many changes in different countries’ media sectors undertaken in the course of transition to democracy are done without adequate planning and leave many inconsistencies. The deregulation of defamation should go on, while defamation laws should be replaced to the highest degree possible by active self-regulation mechanisms. Defamation Generally, the defamation laws in the region have tended toward improvement. Ex officio prosecution in criminal cases has been replaced by private claims almost everywhere. In most cases fines were introduced instead of imprisonment (some exceptions still exist). However, total decriminalization of defamation has been completed in only a couple of countries. In Bosnia and Herzegovina, and Romania libel and insult are no longer criminal offences anymore, while in other countries they still are. The issue of decriminalization has been discussed in the remaining countries and even put on the legislative agenda. One problem that should be pointed here is rooted in the fact that decriminalization of defamation is not a legal standard. Such an obligation is not found in the European Convention on Human Rights and is not recognized by the European Court of 11 Human Rights. This provides a good excuse for politicians not to be active supporters of complete abrogation of criminal defamation. An interesting observation that can be made about the reports is that criminal defamation is not particularly problematic, compared with the excessive compensation for damages adjudicated in civil cases. Except in Bosnia and Herzegovina and Romania, where criminal defamation does not exist anymore, all the other nine countries have such laws. In many of them prison sentences were replaced completely by fines after the recent amendments of criminal codes (this was the case in Bulgaria, Serbia, Croatia and Montenegro; in Moldova defamation is almost completely decriminalized, while in Macedonia prison is exceptional). Prison for defamation still exists in Albania, Hungary and Slovenia. However, it is interesting that in those three countries civil cases are predominant. Preferential recourse to civil law is also reported for Albania and Moldova. The amounts of compensation claimed and adjudicated in such cases in practice range from 40,000 to 50,000 EUR (Albania, Croatia). Explanation for this phenomenon is provided in some of the reports, which pointed out that the burden of proof in civil cases is shifted to the respondent, unlike in criminal law, where the prosecutor usually must prove every element of the alleged offence, including malicious intent, knowledge of falsity or reckless disregard. In addition, civil courts are less educated in human rights