Artistic Expression, Defamation / Reputation, Hate Speech, National Security
Baltasar Adolfo v. Audiencia Nacional
On Appeal Expands Expression
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In a first instance judgement, the Basic Court in Skopje dismissed a defamation claim brought by the North Macedonian company ZAMAN DOOEL in relation to a photo published online, which it alleged falsely linked the company to the Gulen Movement. The case concerned a news article about a protest staged by former students of a Turkish private school in Skopje who called for an investigation into possible ties between the school and the Gulen Movement, which the Turkish government claims orchestrated an attempted coup in 2016. Although ZAMAN was not mentioned in the article, the image accompanying the article showed a picture of its headquarters next to the name of the Turkish school. The Court cited case law of the European Court of Human Rights to affirm the importance of freedom of expression for journalists in order to fulfill their role as public watchdog. The Court found that the photo, the headline and the text of the article reflected value judgments on a matter of public interest which had a sufficient factual basis, and hence could not be considered defamatory.
Consequently, the court also rejected the claim for EUR 2,000 in damages.
On 15 July 2016, in reaction to an attempted coup in Turkey, a number of former students from the private high school Yahya Kemal College staged a peaceful protest in front of the Turkish embassy in Skopje against the school’s alleged ties to the Muslim cleric Fethullah Gulen. Emin, a journalist, interviewed several of the protesters and on 17 July 2016, he published an article in Turkish entitled “Former students from Yahya Kemal: FETO institutions in Macedonia should be examined” on the website www.timebalkan.com. FETO is an acronym used by the Turkish authorities for “Fethullah Terrorist Organisation” which is a reference to followers of the US-based Turkish Muslim cleric Fethullah Gulen. The Turkish government believes that Fethullah Gulen was behind the coup and the title of the article implied that any Macedonian organizations potentially affiliated with Gulen should be investigated.
Mr. Emin placed a composite image above the title of the article. The top half of the image showed the company headquarters of ZAMAN with the name prominently displayed on the building, and on the bottom half showed the name of the private high school, Yahya Kemal College. However, the company ZAMAN is not mentioned in the article. The company ZAMAN is owned and managed by a Turkish national with resident status in North Macedonia. The company publishes a weekly journal in the Turkish language called ZAMAN and a monthly magazine called ZAMAN in the Albanian language.
The ZAMAN publishing company claimed that Mr. Emin, by creating an image with the name of the company next to the name of the private school, and placing it above the headline “Former students from Yahya Kemal: FETO institutions in Macedonia should be examined,” he was implying that the publishing company was linked to FETO. Zaman stated that it was a serious allegation and a falsehood which was neither discussed nor substantiated in the body of the article. Therefore, ZAMAN argued that Mr. Emin had violated the ethics of responsible journalism in using the image, and had consequently damaged the reputation of the company. Zaman claimed that it lost a substantial number of subscriptions and readers due to the false implication.
Mr. Emin rejected the claims as unfounded on the grounds that he was working in his professional capacity as a journalist and reporting on the demonstration organized by former students of the private school Yahja Kemal. He argued that the article did not contain false statements of fact because it was public knowledge that the Macedonian journal ZAMAN was an affiliate of the Turkish newspaper also named ZAMAN. In Turkey, ZAMAN was one of country’s leading opposition newspapers which was seized by the government and shut down in 2016 due to alleged ties with the Gulen movement in the aftermath of the Coup. As evidence that ZAMAN Macedonia is linked with Fetulah Gulen, Emin cited an interview he conducted with a legal representative of ZAMAN in 2014 for the Macedonian newspaper Dnevnik who said “the Gulen movement will not allow Turkey to stray from its democratic path.”
The first instance court had to determine whether Emin had published defamatory falsehoods about Zaman in violation of journalistic standards.
The Court relied on judgments from the European Court of Human Rights in rendering its judgment. Specifically, it cited Prager and Oberschlick v. Austria, Thorgeir Thorgeirson v. Island and Bladet Tromso and Stensaas v. Norwey to establish the importance of freedom of expression for journalists in order to fulfill their role as public watchdog. The Court, however, did not apply the three-part test but ruled in favor of protecting freedom of expression over the right to privacy, in the present case.
The Court reasoned that the defendant’s reporting concerned a matter of public interest and was sufficiently based on facts already published by other online and offline media outlets. The Court further found that the journalist had not violated any professional standards in reporting on the opinions or grievances of the protesters. Therefore, the photo was not defamatory of ZAMAN as it represented an opinion, rather than an implied falsehood, about an issue of public debate.
The ruling is currently on appeal before the Appeals Court in Skopje.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment expands expression on issue of public interest in finding the impugned image and article to be “subjective expression with a sufficient factual basis.” Moreover, the Court chose not to address whether the composite image, that juxtaposed ZAMAN DOOEL with the name of the school, was designed with the intent to infer a relationship between the two based on the content of the article.
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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