Suing and withdrawing accusations: How strongmen pressure journalists by using defamation law

Number of defamation lawsuits against journalists is rising in Bosnia and Herzegovina while many of them get withdrawn.

by Elvira M. Jukić, Mediacentar Sarajevo 

Politicians in Bosnia and Herzegovina tend to intimidate journalists by suing them for defamation, thus deterring them from pursuing their work, the new media freedom report by Reporters Without Borders concludes. Data of the association “BH Journalists”, the largest journalists’ association in BiH, and experiences from newsrooms show that numerous lawsuits are used as a way of pressure. Meanwhile, professionalism remains the best protection.

According to the Free Media Help Line, “BH Journalists” service for the protection of journalists, there is an average of 100 lawsuits for defamation a year, but as courts do not categorize them as such, they get registered as other civil proceedings, which results in poor statistics available to the public, including the percent of lawsuits withdrawn by plaintiffs.

In his recently published analysis “Defamation lawsuits against journalists – a tool of pressure on the media”, Mehmed Halilovic, a long-term journalist and lawyer, notes that it is well known that a number of lawsuits is withdrawn before the preliminary hearing and that a part of those, if not all, represent a certain pressure on journalists because journalists and editors are forced to respond to lawsuits, seek and pay lawyers and spend time in courts.

“Also, there is a practice of public figures announcing lawsuits through the media even though such threats never get implemented. Experts think that such practices are messages or threats to journalists and their media outlets,” said Arman Fazlic, editor with the association “BH Journalists”.

A large number of lawsuits against journalists points at a sort of intolerance for public expression in the public sphere, but it also shows that there is still unprofessional behavior of journalists, said Mehmed Halilovic.

“The best protection against lawsuits for defamation is, of course, the proof of truthfulness. The second is professional behaviour or good will and full respect of the ethical code. I think that in the majority of cases the intolerance for public expression is the reason behind the lawsuits; it represents a sort of pressure on the media, journalists and editors, not only when the lawsuits become trials, but also in the cases of suing and then withdrawing accusations”, Halilović explained.

Minister wants a deal with journalists

Balkan Investigative Reporting Network (BIRN) in Bosnia and Herzegovina had a recent experience of this kind and the BIRN BiH director Mirna Buljugic explained that this happened after they published an article about a public procurement process for buying an official vehicle for a state ministry.

“The minister did not want to talk to us, but directed us to his secretary, and after we published the article, he called us willing to talk. We asked whether there was something problematic in the article and he said no. Twenty days after there was a lawsuit against BIRN, the journalist and editor who worked on the story,” she said.

“During the time of the lawsuit, when we were supposed to respond to it, they went even further suggesting to make a deal with the minister to never write about him again, the ministry or about public procurements. We refused that immediately, after which the legal process continued and in the last week before we filed the response, the minister gave up the lawsuit. This went into “BH Journalists” statistics about politicians who affect the media and create pressures by defamation lawsuits,” Buljugić explained.

Professionalism as the best protection

Buljugic and Halilovic emphasized the key importance of professionalism in journalism in protecting journalists and the media against malicious lawsuits. The director of BIRN is of the opinion that many journalists do not know at all which steps to take when writing an article and it often happens that information is not checked or it is published based on one source which is also anonymous.

“Education of journalists is very important, especially if you are working on articles where you uncover something or mention someone for what they did.  Journalists often do not even call that person. On the one side there are professional standards, but on the other I must again emphasize political force that influences and threatens journalists, regardless of the model of their media funding [public, private or non-profit media] – simply the practice showed that it happens to everyone,” said Buljugic.

Financial sanctions worse than prison

Former editor and now lawyer, Senad Pecanin, said that the Defamation Law has many flaws, such as imprecise definitions, which allow for broad possibilities of lawsuits against journalists and media, and this often represents one of the most effective ways of pressure on journalists and the media.

According to Pecanin, it is symptomatic that numerous lawsuits against journalists and media are filed by Fahrudin Radoncic [the founder of Avaz, one of the largest media companies in Bosnia and Herzegovina, who is also the founder of the ruling party – the Alliance for a Better Future of BiH] by using the possibilities of the law as means for exhausting maltreatment of journalists and media who do not report or speak in compliance with his image of himself.

Pecanin also explained that a large number of lawsuits against journalists and media is not the key piece of information for explaining the hard position of journalists and media in Bosnia and Herzegovina and reminded that the goal of the legal shift of defamation lawsuits from criminal to civil proceedings was to lower the pressure on journalists and threats against them.

“At first look, that goal was achieved. However, considering the extremely poor economic position both of journalists and media in BiH, financial sanctions have turned out to be a more serious threat than former possibility of prison sanctions. Courts are often completely insensitive regarding the tragically bad economic and social standing of journalists and media and the fact that even without the guilt of journalists and media, court proceedings last for years and, as a result, it often happens that even minimal financial fines, after calculation of interest rates since the start of the proceedings, turn into drastically larger amounts representing a real nightmare and affecting the basic survival of journalists and the media.”

An additional problem is, as Pecanin noted, the fact that journalists and media are not financially capable of hiring good lawyers or sometimes any lawyers at all who would represent them in court proceedings. To make matters worse, for a good part of judges, the awareness of the principles of media operation, necessary for regular practice of the law, still represents a real unknown.

Defamation lawsuits as a means of pressure, applied even on journalists who respect professional norms, take time and deter them from investigations they are working on, Pecanin said.

“A lawsuit can be filed by anyone, but in any case, there is a higher degree of possibility that it will be resolved to the benefit of a journalist. Therefore, a large number of lawsuits is a proof of a sort of pressure on media and journalists, and that is for sure,“ Mehmed Halilovic concluded.

The article is a contribution by Mediacentar Sarajevo, a SEENPM member organization.