Case Summary and Outcome

The Constitutional Court of Bosnia and Herzegovina (CCBH) found that judgments of the Basic Court and the Banjaluka District Court that had held the appellants liable for defamation amounted to a violation of their right to freedom of expression. The three appellants (the journalist, the editor, and the owner of the media) appealed against the judgments of the lower courts, claiming that those courts failed to examine the whole context of the case. They argued that the lower courts relied on just one element of the context, namely, the veracity of statements of facts, and held the appellants liable because they had not proved that all of their statements were true. In this case, the Constitutional Court opined that the lower courts did not act in accordance with the European standards on protection of freedom of expression and, thus, the interference was not necessary in a democratic society.

Facts

The plaintiff, Mr. Praštalo, a former member of the board of directors of a company in charge of a local marketplace sued the three defendants for defamation: the journalist, the editor, and the media owner. The case concerned a defamatory article published in a daily newspaper connected to the defendants and dealt with the plaintiff who was allegedly involved in suspicious business actions. In particular, the article argued that the plaintiff’s actions made the company unprofitable and it labeled him “ojađivač privrednih subjekata” (the one who makes companies miserable). The plaintiff claimed that those accusations were false, while the defendants argued the following:

• that the article had been published to provoke public interest debate;
• that the article had been based on the facts of the indictment of the Banja Luka District Prosecutor and the facts provided by the shareholders of the company;
• that the newspaper had published the plaintiff’s denial.

The central issue was the question of the burden of proof. The Basic Court interpreted the Defamation Act of Republic of Srpska (the Defamation Act) to mean that the plaintiff had to demonstrate that the article had been based on false facts, while the defendants had to prove that the facts had been true. This specific rule stemmed from the general provision on the burden of proof in litigation (civil procedure) that demands that every party to a dispute should prove their statements (Litigation Act of Republika Srpska). Several interconnected, but different facts created the basis for the article. The court found the defendants liable for defamation since they had not provided evidence for some of their allegations, i.e. they did not prove certain facts regarding the plaintiff to be true which affected his reputation.

The defendants appealed to the Banjaluka District Court, but the court upheld the first-instance judgment. It explained that the plaintiff managed to prove that some of the allegations in the article were false. On the other side, the defendants failed to persuade the court that those allegations were veracious. Later, the defendants filed an appeal to the CCBH.

Decision Overview

The CCBH had to decide if the judgments violated the appellants’ right to freedom of expression.

The appellants (the media defendants in the Basic Court) claimed that their right to freedom of expression had been violated since the lower-instance courts had not carefully considered all the evidence. If they had done so, they would have realized that the appellants could not be liable according to the Defamation Act. The appellants argued that the courts had not taken into consideration the dolus or the negligence of the appellants. If they had done so, they would have realized that the appellants did not publish false information with intention or negligence, as prescribed by Arts. 5 and 6 of the Defamation Act [para. 20]. 

The CCBH stated that the decision was to be made in accordance with Art. 10 of ECHR and Art. II/3.h) of the Bosnia and Herzegovina Constitution. It ruled in favor of the appellants, finding that the lower-instance courts had violated the right to freedom of expression. First of all, the CCBH followed the tripartite test (legality, a legitimate aim and  necessary in a democratic society) and concluded that the interference with the appellants’ right had been prescribed by law (the Defamation Act) and that it had pursued the legitimate aim (protection of rights of others) [para. 38]. However the court found that the interference had not been necessary in a democratic society. 

The Court emphasized the two questions. The first one – did the lower courts make a clear distinction between a statement of fact and value judgment. The second one is more complex – did the lower courts take into consideration all relevant elements, namely:

• “whether the information contributes to the discussion of public interest, or whether allegations have been made concerning the privacy of the person concerned;
• whether the person in question is a public figure  or private individual;
• the content, form, and consequences of publication;
• the manner, form, and time of publication or transmission of expression;
• an information on whether the expression contains objective and true information (in part or in full);
• whether the publication or transmission of the expression was reasonable;
• whether generally accepted professional standards have been met;
• whether the publishers of information acted in good faith” [para. 39].

The CCBH stressed that the lower courts had made the clear distinction between a statement of fact and value judgment and that they had correctly concluded that the disputed article contained statements of facts [para. 40].

Regarding the second question, the courts had failed to examine the context, namely, they had found the the appellants liable solely because they had not proven that the article’s factual background was completely veracious.  The CCBH said that this reasoning was contrary to the ECtHR’s and the CCBH’s case-law because a statement’s veracity is just one of the factors to be taken into account when considering defamation liability. Furthermore, the CCBH decided that veracity cannot be a decisive element. By taking into consideration only that one element, the Basic Court and the District Court had failed to examine the context of the statements, which is crucial for this type of case [para. 43].

Further, the courts had not interpreted the Defamation Act properly since Art. 5 of the Defamation Act stipulates that liability exists if untrue facts are presented intentionally or through negligence (a mental element). Also, Art. 6 of the same Act provides for exceptions of liability, inter alia, when the expression is substantially true. The lower-instance courts completely ignored the circumstances related to the status of the plaintiff, the sphere of his activities in the relevant period and the indisputable fact that the plaintiff was indicted at the time of publication on suspicion of negligence [para. 44].

The CCBH relied on the ECtHR’s judgment in the case of  Dalban v. Romania, App. No. 28114/95 (1999) (§ 50) where the European court concluded that a prison sentence for a journalist was not compatible with the ECHR since domestic authorities had failed to prove that the article was completely untrue. Thereby, the interference with the appellants’ right to freedom of expression was not necessary in a democratic society [para. 46].

The lower courts had erroneously based their decision on a principle in defamation litigation cases that defendants are obliged (the burden of proof) to provide evidence for their statements and, if they cannot prove a statement’s veracity, then they will automatically be liable, regardless of other factors. The CCBH ruled that this practice was not compatible with the ECHR.

The CCBH quashed the appealed judgment, did not award the appellants any monetary relief, but ordered the Banjaluka District Court to render a new decision in accordance with Art 10 of ECHR and Art II/3.h) of the BH Constitution.