Content Regulation / Censorship, Defamation / Reputation, Digital Rights, Press Freedom
Mansour v. Al-Youm Al-Sabea Website
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The Constitutional Court of Bosnia and Herzegovina (CCBH) ruled that the lower courts had violated the appellant’s (a media company) right to freedom of expression. The lower courts had failed to elaborate in any detail whether the appellant had the locus standi in respect of a defamatory article on a website that had not been owned by the appellant but which had used its logo. The appellant and a third-party had agreed that the appellant’s radio and TV program would be advertised on the website as well as the appellant’s logo. Also, the website’s name was almost the same as the appellant’s (the appellant’s business name is “RTVBN d.o.o.” and the website is www.rtvbn.com). The Constitutional Court found that the lower courts had rendered the disputed judgments without examining all the relevant aspects of the specific case in particular regarding the issue of the appellant’s locus standi and its ability to control the website’s content.
The plaintiff sued RTVBN d.o.o, a media company (the defendant/appellant) in respect of a defamatory newspaper article that had been published on the internet portal, www.rtvbn.com, which the plaintiff alleged was the defendant/appellant’s official internet portal. The plaintiff argued that the article was defamatory because he had been labeled as the person in charge of planning an assassination which wasn’t true. The defendant/appellant media company argued that it lacked locus standi since the website had not been in its control or ownership. The plaintiff disputed this argument alleging that the defendant/appellant had an agreement with a third party (Mr. Kamenjašević; a person in charge of editing the website) to advertise the defendant/appellant’s program on the website. Thus it was disputed whether the defendant could have been liable by virtue of Art. 5 of the Defamation Act of Republika Srpska (DARS) which provides that the following persons are 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 Bijeljina Basic Court held the defendant/appellant liable for defamation. The court concluded that the defamatory article was published on www.rtvbn.com which had been under the defendant/appellant’s control, even though the official website owner and editor had been third parties. The website owner was a natural person, Mr. Stajić, and he leased the website to the editor, Mr. Kamenjašević. Mr. Stajić had no right to edit or otherwise affect content published on the website by virtue of the leasing agreement. At the same time, the defendant/appellant and Mr. Kamenjašević had agreed on advertisement promotion which licensed Mr. Kamenjašević to use the defendant/appellant’s trademark. Thus, Mr. Kamenjašević had the right to use the defendant/appellant’s signs, logos, and other trademark-related items on website content, smart-phone applications, and Facebook, and Twitter accounts. The agreement also provided for Mr. Kamenjašević to use news from the defendant/appellant’s radio and TV program but it was agreed that he had no right to use the trademark outside the terms of the agreement.
The court found the defendant/appellant’s objection on locus standi unfounded since its logo was used on the website and the defendant/appellant, by virtue of the agreement with Mr. Kamenjašević, was liable. Its liability was based on Art. 5 of the DARS because the defendant/appellant, either itself or via the person it had authorized to publish the impugned content, could control the published article, and had done nothing to prevent publication nor to verify the truth of the allegations. By signing the agreement, the defendant/appellant took the risk of facing liability according to the press/media codes in BH. Additionally, the court stated that any other interpretation on the absence of the defendant/appellant’s standing would lead to circumventing the meaning and purpose of DARS. Hence, the court ruled in favor of the plaintiff and awarded him monetary damages. The defendant/appellant unsuccessfully appealed. The Bijeljina District Court found that the defendant/appellant had locus standi, but decreased the amount of the pecuniary award to the plaintiff. The defendant/appellant lodged an appellation (constitutional complaint).
The Constitutional Court of Bosnia and Herzegovina (CCBH) had to decide whether the lower courts’ decisions violated the appellant’s rights to freedom of expression, fair trial, and property under Articles 10 and 6 of the European Convention on Human Rights (ECHR) and Article 1 of Protocol 1 of ECHR).
The CCBH analyzed the case in light of the freedom of expression provisions in Article 10 of ECHR and Article II/3.h of the BH Constitution and found that there had been an interference with the appellant’s rights. However, using the tripartite test the CCBH found that the test fell at the first step because the interference had not been prescribed by law.
The Court briefly reiterated the rationale of lower courts judgments [para. 39]. Regarding the agreements, the CCBH stated that the courts gave a general picture of their content but did not explicitly state what the appellant’s rights and obligations under the said agreements were. In this regard, the Constitutional Court noted that the regular courts found the appellant’s locus standi only on the basis that the disputed article was published on an internet address containing the abbreviated name – the appellant’s logo, and that the appellant did not dispute that the news that it broadcast was published on the internet address. [para. 40]. The Court went on and noted: “by stating that the internet address, at which the disputed article was published, had the appellant’s logo and that the appellant’s news was published on that website, the regular courts concluded that the appellant controlled the content of the webpage and had locus standi. In this regard, the Constitutional Court noted that the regular courts failed to inspect the content of the agreement on the use of the internet address, the rights and obligations of the contracting parties, and examine this in the context of other presented evidence and the relevant provisions of DARS. The CCBH stated that this exercise was a condition for determining whether the substantive law had been correctly applied, that is, whether the appellant, in respect of whom it has been indisputably established that it does not have the capacity of an author, editor or publisher, is a person that could in any other way effectively control the content of that expression in the sense of Article 5 of the DARS [para. 41].
The CCBH recalled the standard of reasoned judgment and stated that this standard “is intrinsic to the right to a fair trial, but it also applies to the other rights” [para. 42]. It said “that the reasons stated in the decisions’ reasoning should have included all important aspects of the case” [para. 42]. The Court relied on the European Court of Human Right’s case-law about Article 6 of ECHR, e.g. cases of Ruiz Torija v. Spain, App. No. 18390/91 (1994) (§ 29) or Ajdarić v. Croatia, App. No. 20883/09 (2011) (§ 34). Also, “in this specific case, having in mind the given explanations of the Basic and District courts, one can conclude that the lower courts rendered the disputed judgments without examining all the relevant aspects of the specific case on the issue of the appellant’s locus standi. […] The Constitutional Court notes that the regular courts based their conclusion solely on the existence of the agreements, which had not been properly analyzed, nor had the courts determined whether the appellant’s right to effectively control the content of the expression published on the portal indeed derived from the agreements” [para. 42].
Hence, the CCBH found that the lower courts had violated Article 10 of ECHR [para. 43] and did not examine allegations of other rights violations [para. 44]. The Court quashed the appealed judgment, did not award any monetary relief but ordered the Bijeljina District Court to render a new decision compatible with Article 10 of ECHR and Article II/3.h) of the BH Constitution.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression and is the first case before the CCBH on the issue of locus standi in internet portal defamation cases. The outcome of the case promotes freedom of expression but one might think that those who abuse the right of freedom of expression could benefit from the decision’s reasoning by using a similar relevant agreement to avoid liability for defamatory statements. However, closer examination reveals that the CCBH’s decision was based on the poor quality of the judgments. Thus, judges should examine similar cases particularly thoroughly because of the novelties thrown up by the internet.
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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