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The Higher Court in Belgrade (first instance) ruled in favor of human rights activist Anita Mitic and the Serbian branch of the regional NGO network the Youth Initiative for Human Rights (YIHR) finding they had been victims of hate speech published by the tabloid Informer. Informer had published an article alleging that members of YIHR were “fascists” engaged in “specialized warfare” throughout Serbia to create chaos under the direction of foreign influence, including George Soros, NATO and Albanian authorities. Relying on the Serbian Public Information and Media Law, the right to freedom of expression under the Serbian Constitution and the European Convention on Human Rights, the Court found the language in the article demonstrated an intent to provoke contempt, discrimination and possibly violence against a particular group, and therefore constituted hate speech. The Court ordered Informer to pay 100,000 Serbian Dinars in damages (approx. USD941) and 71,700 Serbian Dinars (approx. USD673) in costs. The Court further ordered Informer to publish the full judgment of the court in the print version of the tabloid without delay or commentary. The decision was subsequently affirmed by the Appellate Court in Belgrade.
On January 19, 2017, the Serbian tabloid, Informer (officially known as the Insider Team), published a front-page story with the headline “Fascists on the Attack”. The story, which continued on page 5, was published with a photo of members of the Youth Initiative for Human Rights (YIHR). The article alleged that members of YIHR were engaged in “specialized warfare” against Serbia, and that they followed the orders of NGOs sponsored by the philanthropist George Soros, Western embassies, NATO, EU, and “Shqiptar authorities” (ethnic slur for people of Albanian origin) from Pristina, Kosovo with the intent of provoking chaos in the country right before an upcoming election. The article referred to the Youth Initiative for Human Rights as “Soros-Shqiptar’s Strikers Youth Initiative” and claimed that they had interrupted a gathering of the ruling party by yelling and swearing at the audience. The allegations were based on a protest staged by YIHR against a war criminal at a Progressive Party event. YIHR denied that they swore at the audience.
Eight days after the article was published, on January 27, 2017, the front door of YHIR’s office was plastered with threatening messages, including quotes from the tabloid article and the text “For a fistful of Soros’ dollars they would sell the homeland, their mother and father.”
Anita Mitic, then Executive Director of the Serbian YIHR, sued the Insider Team and its editor-in-chief Dragan Vucicevic for defamation, arguing that the January 19, 2017 article incited discrimination, hate and violence and as such constituted hate speech threatening not only her security but also the security of other YIHR members. She alleged that by calling her and YIHR members “fascists,” the article turned them into targets, which resulted in the attack on YIHR’s office.
Mitic attested that George Soros and the Open Society Foundation were not the biggest YIHR donor but and claiming that someone works for Soros could be considered a threat as it is a colloquialism for a person who receives money from abroad. She also stated that she and YIHR members were working towards promoting universal human rights in Southeast Europe, and that calling them “Shqiptars”, a pejorative expression for ethnic Albanians considered to be among the biggest insults for people in Serbia, constituted discrimination. Mitic further argued that as she and members of YIHR were actually anti-fascist and activists engaged in advancing human rights, they qualified as a protected group under article 75 of the Law on Public Information and Media.
She also sought damages on the ground that the article caused her pain and suffering as well as injury to her reputation.
Informer argued that Mitic was a public figure and therefore she had to tolerate greater scrutiny than an average person. Informer also claimed there was no verifiable connection between the published article and any security threats to Mitic and YIHR members. Informer asserted that the tabloid had a “distinct (writing) style,” which employed “hyperbolas” and “similar figures of style,” that should not be perceived as hate speech. In addition, Informer claimed that journalists are not obliged to check if the information that they are about to publish is truthful, and that freedom of expression allows for exaggerations and provocations. Informer also argued that by bringing the lawsuit Mitic was actually trying to curtail media freedoms. Informer alleged that even if Soros was not YIHR’s primary donor, it received funding from organizations such as the National Endowment for Democracy (NED), which are directly financed by the Open Society Foundation. According to Informer, “[t]he system of financing is such that one organization moves money to a different organization in order to obscure the money trail with the purpose of instigating chaos and government change.”
The central issue before the Higher Court was whether the disputed article met the threshold for hate speech, resulting in pain and suffering to Mitic as well as injury to her reputation.
Judge Slobodan Keranovic began by discussing definitions of what constitutes hate speech and relied on several articles of the Public Information and Media Law. Specifically, he referred to Article 75 which stipulates that “[i]deas, opinions or information published in the media shall not incite discrimination, hate or violence against an individual or a group of individuals on grounds of their race, religion, nationality, sex, or their sexual orientation or other personal inclination, notwithstanding whether a criminal offence has been committed by such publication”; and Article 4 paragraph 2, which prohibits discrimination against editors, journalists and other people based on their political affiliations and personal beliefs.
Accordingly, he reasoned that hate speech includes messages of intolerance towards racial, national, ethnic, or religious group, and that “as of lately, hate speech includes attempts to incite hatred or intolerance against diverging political thinking.” The Judge found that hate speech is often motivated by a desire to “[i]ncite public contempt or condemnation of a certain person or the group of people”, and to “create a feeling among the broader public that such attitudes towards the target individual or group was desirable and justified, and that the attitudes would be tolerated and would not be subject to liability.” The Judge then clarified that when it comes to determining hate speech in the media, an intent to incite discrimination, hate or a violation of fundamental rights, must also be established.
Judge Keranovic then provided a detailed examination of the words at issue, such as “Fascist”, “Soros-ian” (an adjective used for someone who is financed or supported by George Soros’ philanthropic endeavors), “Shqiptar”, and “Strikers.” He concluded among other things, that fascism does not tolerate differences, that “Sorosian” colloquially implies that a person’s work is financed by foreign interest groups or individuals including George Soros, that “Shqiptar” is an ethnic slur for Kosovo Albanians which implies working against the national interest, and that in the context of the present case “Strikers” referred to people whose actions were lead by an ideology, and who were ready to “strike” in order to jeopardize individual rights and liberties.
In light of the above, the Judge found the speech demonstrated an intent to provoke contempt, discrimination and possibly violence against the particular group, and as such constituted the hate speech. Deliberating further, the Judge found that using terms such as “Shqiptars”, “Sorosian-shqiptar Organization” and “Special Warfare”, Informer “breached the journalistic obligation of protecting culture and ethics of the public word.” In this context, the “ethics of the public word” referred to the responsibility of journalists to uphold professional standards as established, among others, in art. 5 of the Law on Public Information and Media which states, “[e]veryone has the right to get true, complete and timely information about the issues of public importance and the means of public information shall honour this right.” Thus, the Judge further determined that the article did not constitute objective reporting on the grounds that not a single journalist from Informer was present during the incident described at the article and that Informer failed to provided any evidence for the serious claims they made.
The Judge referenced Article 10 (1) of the European Convention on Human Rights to affirm the right to the freedom of expression and 10 (2) to recall the special duties and responsibilities the freedom entails. The Court then recalled article 120 of the Law on Public Information and Media, as well as Article 199 of the Law of Contract and Torts which stipulates that “[i]n case of violation of an individual right, the court may order that, at the expense of the tort-feasor [party that commits the tort, i.e. defendant], the sentence, namely the correction, be made public, or it may order that the tort-feasor take back the statement causing the violation, or order something else which would reach the purpose, otherwise to be achieved by indemnity.” Accordingly, the Court ordered Informer to publish the full judgment of the court in the print version of the tabloid without delay or commentary.
Based on the above, the Court concluded that the Insider Team and Dragan Vucicevic published hate speech in violation of Article 75 of the Public Information and Media Law, and ordered them to pay 100,000 Serbian Dinars in damages (approx. USD941) and 71,700 Serbian Dinars (approx. USD673) in costs.
The Appellate Court in Belgrade affirmed the first instance ruling on December 20, 2018.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
While the decision technically contracts expression, the Court upheld journalistic standards and protected fundamental rights. This is one of the rare decisions in modern Serbian judicial history in which the Court carefully analyzed and defined words commonly used to incite hate and considered the intent of the speaker before declaring them hate speech and penalizing their use. In addition, this decision affirms the meaning of objective reporting as well as the necessity of protecting the “public word” through professional reporting practices.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Purpose of the Law: The rules on public information provide and protect the release, receipt and exchange of information, ideas and opinions through the media with a view to improving the values of a democratic society, preventing conflict and preserving peace, authentic, timely, reliable, and complete informing and enabling free personal development.
Information about the Issues of Public Interest: The media shall publish information, ideas and opinions on occurrences, events and persons that the public has a legitimate interest to know about, regardless of the manner in which the information was gathered, in accordance with the provisions hereof. Everyone has the right to get true, complete and timely information about the issues of public importance and the means of public information shall honour this right.
Prohibition of Hate Speech: Ideas, opinions or information published in the media shall not incite discrimination, hate or violence against an individual or a group of individuals on grounds of their race, religion, nationality, sex, or their sexual orientation or other personal inclination, notwithstanding whether a criminal offence has been committed by such publication.
Exemption from Responsibility: No breach of prohibition of hate speech shall be invoked if the information referred to in Article 75 hereof is a part of a journalistic text that has been published:
9) without the intent to incite discrimination, hate or violence against an individual or a group of individuals referred to in Article 75 hereof, especially if such information is a part of an objective journalistic report;
10) with the intent to provide a critical view of the discrimination, hate or violence against an individual or a group of individuals referred to in Article 75 hereof, or of occurrences that constitute or might constitute incitement of such behaviour.
Content of the Particulars of Claim: If the publication of information or record violates the presumption of innocence, prohibition of hate speech, rights and interests of minors, ban of public display of pornographic content, right to personal dignity, right to authenticity or right to privacy, in accordance with the provisions hereof, it may be requested by a claim:
1) to identify whether the publication of information or record had violated a right or interest;
2) non-publication of information or record and ban from republishing of information;
3) to hand in a record, to remove or destroy a published record (delete a video recording, delete an audio record, destroy a negative, remove from publications, etc.).
Standing: A person who is personally affected by the publication of information or record has the right to file a claim referred to in Article 101.
The right to file a claim referred to in paragraph 1 of this Article also pertains to a legal person engaged in the protection of human rights in case of violation of prohibition of hate speech and rights and interests of minors.
If the information or record refers to a particular person, the legal person referred to in paragraph 2 of this Article may file a claim only with a consent of the person to whom the information refers.
Standing to be Sued: A claim referred to in Article 101 hereof shall be filed against the editor-in-chief of the medium in which the information or record was published.
Right to Compensatory Damages: A person referred to in the information that was prohibited to be published in accordance with this Law and who suffers damages because of the publication of information is entitled to damages to cover material and nonmaterial costs pursuant to general regulations and provisions of this Law, disregarding other means of legal protection available to him/her in accordance with the provisions hereof.
The right to compensatory damages referred to in paragraph 1 of this Article is also pertained to a person whose replay, correction or other information was not published although its publication was ordered by the competent court when that person suffers damages.
Liability of Journalist and Editor: A journalist or an editor-in-chief shall be liable for damage incurred due to the publication of information referred to in Article 112 paragraph 1 hereof, if proven that he/she is to blame for the damages.
Publishers Objective Responsibility: A publisher shall be liable for damage incurred due to the publication of information referred to in Article 112 paragraph 1 hereof and for non-publication of information referred to in Article 112 paragraph 2 hereof, regardless of guilt.
Joint Liability: A journalist, an editor-in-chief and a publisher shall be jointly liable for damage incurred due to the publication of information referred to in Article 112 paragraph 1 hereof and for non-publication of information referred to in Article 112 paragraph 2 hereof. Joint liability referred to in paragraph 1 of this Article does not refer to a journalist, an editor-in-chief and a publisher of another medium.
Publishing of Court Rulings: At the request of the plaintiff in proceedings initiated by claim referred to in Articles 101, 112 and 119 hereof, the court shall order to the editor-in-chief to publish at his/her expense a final ruling with no comments and without delay, not later then in the issue following the next issue of the daily newspaper or in the radio or television programme following the next programme from the day when the ruling became final. The publication of the ruling referred to in paragraph 1 of this Article shall be subject to Article 93 paragraph 1 and Articles 96 and 107 hereof.
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