Defamation / Reputation, Press Freedom, SLAPPs
VanderSloot v. Mother Jones
On Appeal Contracts Expression
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The Higher Court in Belgrade (a single judge bench) upheld a defamation lawsuit brought by the current minister in the Serbian Government Bratislav Gašić (then a director of Serbian security agency) against the media outlet KRIK, its editor in chief and the author of the disputed article. The plaintiff raised the claim on the basis of an article published online which covered a criminal trial against well-known Serbian gangsters from Kruševac, the hometown of the plaintiff. The article reported that an intercepted audio recording of a private conversation mentioned the minister as a person financed by the criminals. More specifically, the persons recorded used a slang phrase – “to be on the cauldron” (Serb. “na kazanu”), which the article indicated meant that the plaintiff was on the payroll of the organized crime group. The judge ruled that such journalistic interpretation harmed the honor and reputation of the plaintiff and awarded him the pecuniary damage.
KRIK (the first defendant) is an investigative journalism online media outlet covering issues of organized crime and corruption. One of the KRIK’s journalists (the third defendant; Milica Vojinović) covered a murder trial of well-known criminals. During one of the hearings, several audio records were played in the courtroom. One of them mentioned that the current Serbian minister of internal affairs, Bratislav Gašić (then a director of the Security Information Agency) was “on the cauldron” of criminal Zoran Jotić Jotka. KRIK published the article about the trial – “Political connections of the Kruševac criminal group: ‘Jotka had Gašić on the cauldron’”. The text clarified that the slang phrase (“on the cauldron”) meant that Gašić was being paid by a criminal called Jotka. The clarification goes as follows: “Director of Security lnformation Agency Bratislav Gašić was ‘on the cauldron’, i.e. on the payroll of a well-known Kruševac criminal Zoran Jotić Jotka, claims a member of this criminal group in a conversation that was wiretapped by the police, which was played at yesterday’s hearing” [p. 3].
KRIK tried to contact Gašić to get his comment via an email, but he did not respond and remained silent. After the article was published the third defendant spoke with Gašić over the phone and he said that he did not want to talk with KRIK. After the text was published, Gašić filed a lawsuit against KRIK, its editor in chief (Stevan Dojčinović) and the journalist that authored the article. The case was brought before the Higher Court in Belgrade.
The Higher Court in Belgrade (a single judge Nataša Petričević Milisavljević) had to rule if the contested article had been defamatory and, thus, whether the honor and reputation of the plaintiff were harmed.
The plaintiff argued that the impugned article, in particular the headline, was defamatory, hence violating his honor and reputation. He did not dispute the veracity of the article in general, but claimed that the article and its title made public to believe that the he had ties with a criminal group in the city of Kruševac, the plaintiff’s hometown. Thus, the article represented an act of journalistic mala fide.
The defendants opposed, arguing that the article faithfully conveyed the content of the trial at which the third defendant had been present. Regarding the expression “to be on the cauldron”, they argued that their explanation in the article did not represent “an untrue claim of the defendants, but rather an explanation of a well-known domesticated metaphor” [p. 2]. They also indicated that they had tried to get the plaintiff’s comment, but to no avail. Defendants, in addition, pointed out that the minister was a public figure so he was obliged to show a higher degree of tolerance.
The judge ruled in favor of the plaintiff. She found that the defendants acted in accordance with Article 74 of the Law on Public Information and Media since the article was based on what was heard during the public hearing. On the same basis, the defendants’ acts were in accordance with Article 116 of the same Law which prescribes that there cannot be a liability for defamation if the published content is a faithful dissemination from a court trial. Nevertheless, the lawsuit was lodged due the title and the interpretation of the phrase “to be on the cauldron”. Such wording had damaged the honor and reputation of the plaintiff, opined the court. “Namely, the title of the text ‘Political connections of the Kruševac criminal group: Jotka had Gašić on the cauldron”’ represents the assertion of the existence of connections between the criminal group and the plaintiff, bearing in mind that the plaintiff is directly mentioned in the title of the text in question” [p. 9]. Such information “was suitable to harm the honor and reputation of the plaintiff” especially since Gašić was a director of an agency whose aim is to fight against crime, concluded the judge [p. 9].
The Court, further on, notes that the headlines of online articles aim to attract readers and to provide core information in a few words. The defendants overstepped the usual limits for headlines because the article mentioned various names and events, not just the plaintiff and events involving the plaintiff. The Court ruled that “the title of the text cannot be such that, as information, it insults the honor and reputation of the person to whom it refers”, indicating that a person is doing something illegal [p. 10]. Moreover, the judge took into consideration that the photographs of the criminal Jotka and the plaintiff were put together just below the title, emphasizing the importance of the title and the information that Gašić had ties with criminals.
Next, the judge decided that journalists must faithfully convey information from criminal trials and that they enjoy a certain degree of right to interpret the information. Still, such interpretation cannot “be such that it represents the publication of harmful information” [p. 10]. The phrase “i.e. on the payroll of the well-known Kruševac criminal Zoran Jotić Jotka” was such an interpretation. The article repeated such information by saying that the expression “to be on the cauldron” meant that a person received money from someone. The judge noted that the second defendant (Stevan Dojčinović, an editor in chief) had testified that the expression “to be on the cauldron” was generally known to the public. Such testimony, the judge found, was contrary “to part of his testimony that the defendants gave an additional explanation of this expression” [p. 10-11]. She continued by claiming that if the expression is generally known, then the headline and twice noting the meaning of the phrase “to be on the cauldron” did violate the plaintiff’s honor and reputation.
The Court found that all three defendants were liable according to Articles 113 and 114 of Law on Public Information and Media.
The plaintiff was awarded with 100.000,00 RSD (around 850 EUR). Among other factors relevant for the amount, the judge took into consideration the fact that the plaintiff was a public figure and a director of Security Information Agency and that reputation and honor of all employees of the Agency and the plaintiff’s family were violated. At the same time, the judge indicated that the status of public figure meant that Gašić was obliged to tolerate a higher level of criticism.
The second defendant was obliged to publish the judgment’s introduction and dispositive on the KRIK website. The defendants were obliged to compensate the costs of the court’s proceeding to the plaintiff in amount of 41.800,00 RSD (around 355 EUR).
The defendants indicate they shall appeal to the second instance court.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment contracts the freedom of expression and could represent a dangerous precedent regarding press freedom.
The journalists were held liable for providing a clarification, or explanation, of the phrase “to be on the cauldron” which was mentioned during the trial. If journalists enjoy the right to interpret texts and other content (as the judge admits), then they should not be penalized for doing their job. Neither the judge nor the plaintiff offered an alternative interpretation of the the impugned phrase’s meaning so one cannot conclude that the defendants did act mala fide, purposely depicting the plaintiff as a person with criminal connections. Moreover, during the testimony, the plaintiff declined to answer if he knew Jotka, a criminal from Kruševac. The answer to this question could help to clarify the eventual ties between the plaintiff and the criminals.
Even if the journalists’ interpretation of the phrase had been capable of harming the plaintiff’s reputation, and harmed not just Gašić but employees of the Serbian Security Agency and Gašić’s family, the judge failed to take into account that freedom of expression protects even those statements “that offend, shock or disturb the State or any sector of the population” (ECtHR, Handyside v. The United Kingdom, para. 49).
The judge further did not take into consideration the importance of the published article – whether it contributed to a debate of public interest, and thereby ignored an important free speech standard. This contradicts the case of law of the European Court of Human Rights. Namely, there is a little scope for limiting political speech or debate on questions of public interest (see, for example, Wingrove v. The United Kingdom, para. 58). The whole disputed article, including the title, did contribute to a debate of significant political interest.
In addition, the third defendant did follow the professional standards of the audiatur et altera pars rule and repeatedly tried to contact Gašić to get his side of the story. Once she managed to get him on the phone, he refused to speak with her. The court, thus, failed to consider the professional journalistic conduct and the plaintiff’s silence.
The judgment also offers contradictory reasoning on the status of the plaintiff as a public figure. On the one hand, the court observed the office that the plaintiff holds (a director of a security agency) was a factor that contributed to a higher amount of non-pecuniary damages. On the other hand, the public figure status was observed in the sense that the plaintiff had to tolerate more criticism. This ambiguous rationale does not uphold freedom of expression standards. The status of a public figure is not primarily important for the amount of the damages, but for the merits of the case and the validity of the claim itself. The public figure status should be discussed by judges during the deliberation phase of whether the claim is founded or not, and not under the section discussing the amount of awarded damages. One should bear in mind that public figures must tolerate more criticism than others (Von Hannover v. Germany (no. 2), para. 110).
Finally, there were procedural flaws in the case, according to the defendants. In the article published after the judgment was rendered, KRIK pointed out several deficiencies – the judge did not allow for pieces of evidence (witnesses and the audio record) to be examined.
Bearing the above-mentioned in mind, this judgment could serve as a tool for intimidating journalists and have a chilling effect on Serbian journalism. Therefore it could be considered as a Strategic Lawsuit against Public Participation or a “SLAPP” case. It is important to note that KRIK has been subject to various SLAPPs by state officials or powerful persons close to the Government.
More arguments of the defendants can be found here.
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