Global Freedom of Expression

S. D. v. D. R.

Closed Mixed Outcome

Key Details

  • Mode of Expression
    Electronic / Internet-based Communication
  • Date of Decision
    March 27, 2019
  • Outcome
    Judgment in Favor of Defendant
  • Case Number
    72 0 Mal 055889 18 Gž 2
  • Region & Country
    Bosnia and Herzegovina, Europe and Central Asia
  • Judicial Body
    Appellate Court
  • Type of Law
    Civil Law, Constitutional Law
  • Themes
    Defamation / Reputation

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Case Analysis

Case Summary and Outcome

The Banjaluka District Court (“BDC”) in Bosnia and Herzegovina held that if an allegedly defamatory interview gets published in an online article, then the author of the article will be liable for defamation, not the interviewed person. The plaintiff, S.D., sued the defendant D.R. over an interview which he gave to a local journalist about political corruption. The published article quoted D.R. as alleging that S.D. was involved in a variety of illicit activities. Following publication, the plaintiff lodged a lawsuit which was denied by both the first-instance court and the second-instance court (BDC). The case law holds that in such cases a lawsuit should be directed against the author of the article, rather than the person who gave a certain statement in an interview.


Facts

The defendant (D. R.) gave an interview which was later published on the website “I.net” on October 30, 2016, in an article under the headline: “We defeated political corruption”. The author of the online article was M. K. In the interview, the defendant named the plaintiff (S. D.) as one of the major participants in political corruption in a local community involving the “political trade”, which entails paying local politicians to change a political party. The defendant also claimed that the plaintiff caused a political crisis in a local community and prevented an investment of 670.000 EUR in a particular municipality.

After reading the article, the Plaintiff issued proceedings against the defendant and adduced expert medical evidence that the article had caused him mental suffering. The court held that the article was defamatory, but denied the claim on the basis that it should have been raised against the author of the article (M. K.) and not the defendant. The plaintiff appealed to the BDC arguing that the defendant could be held liable for defamation under the Defamation Act of Republika Srpska (“DARS”).


Decision Overview

The BDC upheld the lower court’s ruling. The Court had to examine if the defendant fell within the scope of Article 5 (1) of DARS 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.

The BDC found that Article 5(1) of the DARS applied because the defendant published the statement on the internet portal. It went on: “however, the defendant who is not the author of the text cannot be held liable when a defamatory expression is presented through the media article. According to DARS, the author is not a person who gave information or a statement to the media (in this case the defendant), but a person who deals with a particular topic within the published information (in this case the journalist M. K.). For these reasons, in the opinion of this Court, persons liable for the expressions in the text entitled “We defeated political corruption” published on the internet portal … are those persons named in Article 5 of DARS, and not the defendant”.

The plaintiff also claimed, that if the DARS had not been applicable in this case, then the Obligation Act (“OA”) should have been applied. However the BDC rejected the argument, on the basis that DARS is lex specialis (a law governing a specific subject matter) and there is no opportunity to apply OA, which is a law governing only general matters. The Court stated: “the author of the published text was the person who should have checked the truthfulness of the information given by the defendant before publishing the text on the internet portal and making the content of the disputed statement available to the public. In the present case, the first-instance court correctly applied the substantive law by invoking the provisions of the DARS”.


Decision Direction

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Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Mixed Outcome

Even though the outcome of the case promotes freedom of expression, the court’s reasoning is highly questionable. It is hard to reconcile this conclusion with the European Court of Human Rights’ (ECtHR) decision in the case of Jersild v Norway [par. 35] where the ECtHR stated: “the punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so”. The liability in these types of cases should primarily be on the person who is the source of the defamatory statements and journalists’ liability should be secondary.  To conclude, it follows that the case law in Republika Srpska (one of the two sui generis federal units in B&H) is not aligned with the European human rights standards. It simply contravenes the power of logic to say that an author of an article is liable for defamation, but not an interviewed person. The same criticism can be traced in one of the manuals of freedom of expression in Bosnia and Herzegovina on the following link (p. 153): https://2am-objavi-ba.s3.amazonaws.com/wp-content/uploads/2017/11/03091636/Medijsko-pravo-u-BiH.pdf

It should also be noted that, as a rule, the lower courts do not explicitly rely on the domestic (Constitutional Court of Bosnia and Herzegovina) or regional (ECtHR) case law and even when they do, they do so without a clear reference to specific cases.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • Bosn. & Herz., Defamation Act of Republic of Srpska, 2001, sec. 5, Official Gazette of RS, no. 37/01

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

The decision was cited in:

Official Case Documents

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