Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
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The Higher Court in Belgrade dismissed the defamation lawsuit brought by the then minister in the Serbian Government Nenad Popović against KRIK media outlet and its editor in chief. The plaintiff raised the claim on the basis of two articles published online which dealt with his controversial business in relation to offshore havens. The articles were based mainly on documents obtained from the Paradise Papers, an international journalistic project, in which an offshore law agency described the plaintiff’s business as risky. The articles also mentioned that the minister was under investigation by the prosecutor’s office and the Serbian Agency for Combating Corruption since he failed to declare the entirety of his assets in the Agency’s registries. The court ruled that the defendants acted in accordance with journalistic duties. First, the defendants tried to contact the plaintiff before the publication of the articles but he failed to respond. Secondly, they based their stories on official documents and on the Paradise Papers. Further on, the court affirmed that journalists are not obliged to disseminate information literally as stated in documents in their possession and that they enjoy the right to interpret such documents. Finally, the court considered that the articles contributed to a debate of public interest and that the plaintiff was a public figure, meaning that the threshold of tolerance to speech regarding his affairs was high.
The entry was made with the help of Article 19 and Independent Journalists’ Association of Serbia (IJAS) and we offer our gratitude to both organizations.
KRIK (a Serbian investigative journalism outlet that focuses on issues of corruption) published four articles about the plaintiff Nenad Popović (a business person and a minister in the Serbian Government at the time) and his business based on documents originating from the Paradise Papers project. In this particular litigation, two articles were the basis for the lawsuit: 1) “Popović is of a ‘high-risk’ For An Offshore Agency” and 2) “‘Paradise Papers’ Are Not An Attack On Popović, But An International Project”. The articles were based on leaked documents from the offshore law agency “Appleby”, which point to dubious businesses from around the world, including from Serbia.
The documents gave insight into Popović’s business, including the analysis made by “Appleby” of the plaintiff’s business. The agency marked Popović as a person of high risk to do business with due to his various business transactions and connections in particular with Russia. The articles also mentioned that one of the biggest accounting firms (PwC) and Popović were planning to restructure his business via offshore companies in the Isle of Man and a trust in Hong Kong. The transaction was never concluded, indicated the article, and KRIK was not able to verify the reason behind that. The articles also indicated that the minister’s companies were incorporated in Cyprus, Russia, and the British Virgin Islands. Further, it was stated that the Serbian Agency for Combating Corruption and a Serbian prosecutor were investigating the plaintiff since he, as a minister, failed to declare all of his assets to a state registry. The minister’s assets were estimated to be worth, at least, 100 million USD, according to the articles.
Moreover, the articles described the plaintiff as a “Russian person in the Serbian Government”, indicating his position against Serbia’s accession to the EU and that his residence was in Switzerland, where he was paying taxes.
Prior to publishing the articles, the defendants tried to contact minister Popović thorough several means. Eventually, they sent him an email containing a series of questions and asking him for a statement. They did clearly indicate that they shall publish articles about his business and the leaked documents. The plaintiff, however, declined to respond.
Following the publication of the articles, the minister brought four lawsuits before the Higher Court in Belgrade, including the one involving this case. In this particular case, the defendants were the “Network for Investigating Crime and Corruption” – “KRIK” and Sergej Dojčinović, its editor in chief. The minister argued that the defendants violated his personality rights, namely honor and reputation. The articles were untrue, in particular since the plaintiff did not own any company in tax havens at the moment of publishing the articles. All of his enterprises were registered merely in Europe and Russia. Moreover, he did declare all of his assets to the Agency for Combating Corruption, contrary to what the articles argued. Also, he claimed that the articles portrayed him negatively, as a business person involved in illegal or suspicious transactions. He demanded 1 million RSD (approx. 8,500 EUR) in damages. The same amount was indicated in three other litigations.
Before lodging the lawsuit, the plaintiff did not ask KRIK and the journalists for the right to reply. Still, he denied the allegations made in the published articles via different other media outlets. His statements included the argument that the impugned articles were an attack on him, the Serbian Government and the President.
The defendants disputed the minister’s claims arguing that they based their stories on documents originating from different sources. Regarding the offshore companies, they indicated that, although the plaintiff argued there were no such companies, he did lodge the file to the Serbian Agency For Combating Corruption in which it was stated that he owned companies in the British Virgin Islands and Cyprus. Further on, the defendants indicated that they had tried to get the plaintiff’s statement, but he did not respond to their inquiries. Finally, they explained that the sources for the impugned articles were obtained within the credible international project Paradise Papers. Dozens of emails of “Appleby” agency were analyzed and some of them contained information about the plaintiff. In one of the emails an “Appleby” employee indicated that the plaintiff’s business could represent a risk for the agency in the sense that the agency could be linked to criminal activities.
During the preliminary hearings in all of the proceedings, the defendants asked the judges for the joining of all of the cases brought by the plaintiff but their motions were denied.
The plaintiff delayed the litigation, failing to attend the hearings six times. During the proceedings, the plaintiff asked the court to halt the procedure while he was in office in order to avoid any speculations that the lawsuit was a method of governmental pressure against the media. The court denied the motion since Article 222 of the code of civil procedure did not recognize the specified reason as a valid cause for halting a procedure. After that, the plaintiff tried to withdraw the claim. Since the defendants had lodged the response to the lawsuit, the withdrawal was not possible without the defendants’ consent, as envisaged by Article 202 of the same Law. The consent for the withdrawal was not given and the court proceeded with the case. As the plaintiff did not appear before the court to give a statement (a testimony), the proceeding was closed without the plaintiff’s testimony and the parties delivered their final submissions.
The court (Judge Slađana Pantović) dismissed the claim and ordered the plaintiff to pay the costs of legal representation to the defendants. The court relied on Article 10 of the ECHR and gave several reasons for the ruling.
The court affirmed that the defendants followed the journalistic due diligence standards. The disputed articles were based on documents from several sources: Appleby, PwC, Serbian Agency for Combating Corruption, two prosecutor’s offices in Belgrade, and public registries of companies in Serbia, Cyprus and the British Virgin Islands. In addition, the media outlet tried to contact the plaintiff several times to get his side of the story, alerting him that the articles would be published, but to no avail. Therefore, the court stated that the defendants acted in accordance with Article 9 of the Law on Public Information and Media which prescribes journalistic standards and imposes an obligation for journalists to check the information in their possession, in particular their credibility and veracity [p. 18].
The court explained that the aforementioned duty did not require that an article could only be published if the media outlet was completely sure that the information it contained was correct. This is due to the fact that news is a “product with limited lifetime” and that it is crucial to disseminate it in a timely manner. Any delay in publication can detract from the value of the information. Further on, the court stated that journalists have a right to interpret the information contained in documents in their possession, meaning that the media outlet is not obliged to publish the content of these documents literally [p. 17-18].
The court looked at the effect of the articles noting that they contributed to the public interest debate. Next, the status of the plaintiff was essential: he was a public figure so the tolerance threshold that he had to show was high [p. 18].
The court paid particular attention to the plaintiff’s omission to attend the hearings and to give a testimony before the judge. The Serbian Law on Contracts and Obligations (Article 200) stipulates that, in order for a court to uphold a lawsuit, a plaintiff needs to prove that they had suffered damages due to a violation of personality rights (honor and reputation). For a judge to be able to adjudicate a case, he or she needs to be provided with evidence indicating that the plaintiff’s honor and reputation were infringed on. This was not the case, ruled the court. It was the plaintiff who asked the court to hear him as a witness and such testimony could have allowed the court the possibility to assess eventual damages. However, as the plaintiff did not appear before the court, he failed to prove that any damages occurred whatsoever. Therefore, the plaintiff did not prove the basis of his claim nor the amount (degree) of the alleged damages [p. 18-20].
In conclusion, the court dismissed the claim based on the violation of the plaintiff’s personal rights and his claim for non-pecuniary damages. The plaintiff was ordered to pay the costs of legal representation to the defendants.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
By deciding that a media outlet’s duty to check the credibility of information in their possession does not require them to be completely sure that the information contained in the published material is correct, the court struck a fine balance between journalistic duties of professionalism and the particular character of news, being a “product with a limited lifetime”, requiring its dissemination in a timely manner.
The court also affirmed the journalists’ right to interpret the information contained in documents in their possession without having to transcribe it literally.
Finally, the court reiterated the importance of such publications to the public interest debate and the high threshold of tolerance that public figures need to allow with regard to speech that tackles matters of public interest in which these public figures are concerned.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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