Content Moderation, Defamation / Reputation, Digital Rights, Hate Speech
Die Grünen v. Facebook Ireland Limited
Closed Expands Expression
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The Banjaluka District Court (“BDC”) in Bosnia and Herzegovina found that a former minister’s defamation lawsuit against media company RTVBN d.o.o. in respect of an article published on www.rtvbn.com, was unsubstantiated. The website’s editor, A.K., entered into an agreement with the defendant to advertise the defendant’s TV and radio program on the website. The defendant argued that he could not be held liable under the Defamation Act of Republika Srpska (“DARS”) for content on another’s website over which he had limited control. The court rejected this argument on the basis that the agreement provided not only for the rights, but also for the obligations of the defendant to monitor content published on the website. However the court rejected the plaintiff’s claim on the basis that the article had not been defamatory. The plaintiff lodged an appellation (constitutional complaint) with the Constitutional Court of Bosnia and Herzegovina (“CCBH”) in the context of his right to a private life under Article 8 of the European Convention of Human Rights (ECHR) but the Court denied the appellation and confirmed that the defendant had had the right to publish the article.
On February 08, 2015, the impugned article was published on the website www.rtvbn.com under the headline “R. Š. visited the construction site”. The article criticized the plaintiff who was the former Healthcare Minister of Republika Srpska (“RS”), one of the two entities of Bosnia and Herzegovina. He was described in the article as the person who had supervised the reconstruction of a hospital and was rumored to have ruined healthcare in RS. He was also associated with the procurement of medical equipment via the Austrian company V, a huge business venture which would result in the plaintiff and President of RS earning around 15 million euros, according to another journalist.
R.Š. sued the media company RTVBN d.o.o. for defamation and on April 04, 2018 the Banjaluka Basic Court found the defendant liable for defamation and awarded the plaintiff 5,000 BAM in damages. The court had to resolve two issues, firstly the standing of the defendant and, secondly, whether the article was defamatory or not. The parties did not dispute that the article was published, but they clashed on the issue of who owned, ran and edited the website. The plaintiff claimed that the website was the defendant’s official website, while the defendant argued that the website was owned and edited by a third party. The court-appointed expert made the following points:
Based on the abovementioned findings, the expert witness was of the opinion that it was the defendant that had published the article, not the third parties [p. 2-3].
The first instance court also assessed the Agreement on Business Cooperation (“the Agreement”) between the defendant and A. K. The Agreement provided that A. K. was licensed to use the defendant’s signs, logos, and other trademark-related items on website content and smart-phone applications as well as on Facebook and Twitter accounts. The agreement also provided for A. K. to use news from the defendant’s radio and TV program so long as he noted that the source of the news was the defendant.
Relying on this evidence, the first instance court determined that the defendant’s locus standi objection was ill-founded. The court then proceeded to the issue of whether the article had been defamatory or not. It opined that the defendant was liable for defamation due to the defamatory character of the article [p. 2-3]. The defendant appealed the case to the BDC.
The defendant argued before the BDC that it could not control all content on the website, only whether its news was being correctly published so that it could not be held liable for the impugned statement. Nevertheless, the BDC confirmed the Basic Court’s finding on the issue of the defendant’s standing, namely that Article 2 of the Agreement stipulated that A.K. could use the defendant’s trademarks on the internet presentation for publication on the www.rtvbn.com web site, smartphone applications, Facebook, and Twitter accounts for the sake of advertising. Further, Article 6 of the Agreement gave the defendant the right to terminate the Agreement if A.K. “does not regularly update the pages of the presentation on rtvbn.com with current news or otherwise does not comply with the provisions of the Agreement”. The court reasoned that these facts implied that the defendant had both the right and the obligation to control content on the website and to terminate the Agreement in case of breach of the provisions of the Agreement. BDC concluded that by not terminating the Agreement, the defendant agreed with the published content on the designated website and with the disputed expression (p. 5).
On the issue of merits, BDC reasoned that the article had been a value judgment rather than a statement of fact. The Court also emphasized that there is a greater degree of tolerance for the criticism of public figures like the plaintiff [p. 6]. Therefore, it found no violation of the plaintiff’s reputation.
The plaintiff lodged an appellation (a constitutional complaint) with the CCBH asking the Court to find a violation of Article 8 of the ECHR because BDC did not strike a fair balance between his Article 8 right to a private life and the defendant’s right to freedom of expression under Article 10 (ECHR). However the Court found that the lower courts did not violate the plaintiff’s right to a private life as guaranteed by Article 8 of ECHR. CCBH did not consider the issue of the defendant’s standing. The Court agreed with the opinion of BDC that the article represented a value judgment, not a statement of fact [para. 44-45] and in so doing cited European Court of Human Rights (ECtHR) jurisprudence including Lingens v Austria and Feldek v Slovakia .
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The case’s outcome expands freedom of expression as the court reasoned that the impugned expression was a value judgment and not a statement of fact and, further, that there should be greater tolerance for criticism of a public figure than an ordinary citizen. However BDC’s reasoning on the defendant’s locus standi does not take sufficient account of the fact that the agreement between the defendant and A.K. denies the defendant control over all the content on the website. The BDC judgment also fails to specify the position of the defendant under the Defamation Act of Republika Srpska (DARS), specifically Article 5, which stipulates that the following can be held liable for defamation: (1) an author, (2) an editor, (3) a publisher, (4) a person who otherwise effectively controls the content of an expression, and (5) a legal person that publishes an expression. Generally speaking, BDC did not make any connection between DARS and the question of the defendant’s standing.
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