Media News

Media News is a fifteen-day service which speaks about the media situation in Bosnia-Herzegovina, the most important media events, media legislation, relations between the media and the state and international community…

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No 49, Vol I

Sarajevo, January, 10th 2000.

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¨      Public RTV Services 

Most Deadlines Breached

The international community’s High Representative Carlos Westendorp took a decision on July 30 last year on the restructuring of the public RTV service in Bosnia-Herzegovina. The decision, which rests on the Dayton Peace Agreement, came in reaction to irresponsible behavior of local politicians and bodies of authority regarding legal regulation of the public radio and television broadcasting system in the entities and the state. However, it is as if the High Representative’s energy, expressed in the form of very short deadlines for the decision to be implemented, is now melting in the face of resistance on the part of local factors and controversies that people charged with establishing the new system are clashing with every now and then.

The majority of the deadlines announced by the High Representative have not been met. 

¨      Television Monitoring

Daily Events Dictate Choice of Issues

How much are economic issues present in media in Bosnia-Herzegovina? In searching for the answer, Media Plan Institute Sarajevo in the last issue featured the results of monitoring of daily newspapers in Bosnia-Herzegovina, particularly focusing on coverage of economic issues and how they are presented. In this issue we feature the results of monitoring of primetime news and political programs on television channels in Bosnia-Herzegovina carried out from December 21 to 27, 1999. We monitored the news program Dnevnik (Journal) on Television BiH, Dnevnik on Television Republika Srpska (TVRS), and TV INFO on OBN (TVOBN). We determined precisely how frequently economic issues were featured in these programs. In order to obtain a realistic view of how much economic issues are covered in these programs, we compared their number with the total number of items aired, not including the weather forecast and sports. Here are the results:

¨      Ombudsmen’s Report on Legal Regulation of Defamation and Insult in the BiH Federation

Westendorp’s Intention Thwarted

The three ombudsmen of the Federation of Bosnia-Herzegovina, Branka Raguz, Vera Jovanovic and Esad Muhibic, on December 22 sent a comprehensively elaborated request to the Federation Parliament and Government to modify the present legal solutions in the field of defamation and insult through media, considering them to be a threat to free work of journalists. The institution of the Ombudsmen of the Federation of Bosnia-Herzegovina was established shortly after the creation of this entity in 1995 and has a corrective role towards the Federation authorities. The Constitution of the Federation states that “An ombudsman may also present at any time special reports to any competent federation, cantonal, municipal or international authorities. Domestic institutions shall have an obligation to reply within a time limit specified by the Ombudsman." However, at least judging by the present reality, decisions taken by the ombudsmen have often been ignored by the authorities, and some of their objections related to the exercising of human rights, except for being published once, did not have much significance. One of the reasons for the “helplessness” of these “guardians of human rights” is that they do not possess an efficient mechanism to enforce their decisions.

Still, as the international community is increasingly putting key segments of Bosnian-Herzegovinian society under its control, it is clear that the ombudsmen’s remarks will enjoy stronger and more concrete support. Therefore it should not be surprising that these remarks, in addition to bodies of legislative and executive authorities in the Federation, were also sent to OHR, OSCE and IMC (Independent Media Commission), which are all international organizations that have the power to modify and impose key decisions in Bosnia-Herzegovina.

We publish the ombudsmen’s report with slight interventions.

Draft in Parliamentary Procedure

Exercising his powers the High Representative of the international community in Bosnia-Herzegovina, Carlos Westendorp, announced "The decision on freedom of information and abolition of criminal penalties for insult and defamation" on 30 July 1999. This decision also contains a request for both entities "…to adopt necessary laws concerning insult, libel, and slander with the purpose of ensuring remedies for insult, libel, and slander within civil proceedings, legislation that would be in accordance with European Convention for the Protection of Human Rights and Fundamental Freedoms …" and sets up a deadline for the mentioned adoption "…no later than 30 December 1999". Stating the grounds for his Decision the High Representative concluded that "…the existence and application of relevant provisions have a discouraging impact on journalistic freedoms in Bosnia-Herzegovina".

In the meantime, on 11 November 1999, the Office of the High Representative and the OSCE Mission to Bosnia-Herzegovina formed an advisory group for legal regulation of defamation and freedom of information. As it stands in the Decision, the Group shall be composed of representatives of the Government, local and international experts, and representatives of OHR, OSCE and IMC. The group has held several meetings so far, but has not announced any proposal yet.

Finally, in the Federation Government session of 16 December, the Draft Law on Compensation of Damage caused by Defamation or Insult was adopted and, according to the press, the Draft Law was communicated to the Parliament of the BiH Federation for adoption through emergency procedure.

Defamation and Insult in Our Reality

Defamation and insult through media (this term includes all types of media, print and broadcast) are regulated by both the old and new Criminal Codes (Articles 213-220). The latter has been in force since December 1998. These criminal offenses are sanctioned by sentencing perpetrators up to three years in prison ("In the case that the substance of what is falsely being asserted or circulated is of such significance that it has led or might have led to grave consequences to the victim", Article 213, paragraph 3, and article 215, paragraph 3). It is clear that the new Code inherited, if not all, than at least part of the approach to these criminal offenses from the previous communist regime. Since the Criminal Code does not explicitly define that only persons who assert or circulate incorrect or false facts, excluding expression of evaluation (opinions and comments), can be indicted, the current description of defamation and insult set forth by the Criminal Code ("Whoever asserts or circulates something false…", or "whoever insults another person…") actually opens the possibility even for indictments for expressed opinion ("something false"). Secondly, according to the provisions of the Criminal Code, violation of dignity of "Bosnia-Herzegovina or the Federation, their coat-of-arms, flag or anthem" and of "constituent nations and others living in Bosnia-Herzegovina" are serious offenses that are punishable by imprisonment for a term between three months and three years, which is also taken over from old laws. Thirdly, it is even more anachronistic that criminal offenses against honor and reputation (Articles 213 and 214, with reference to Article 219) "committed against a state body or against an official or military person in connection with their official work" may be prosecuted ex officio.

Apart from criminal procedure, existing regulations even now offer the possibility of compensation for consequential damage through litigation on the ground of violation of honor and reputation (defamation and insult). However, this legal solution offered by civil procedure has been rarely applied in the case of defamation and insult inflicted through media. Persons believing that their rights have been violated, almost without exception, insisted on initiating criminal procedure, and rarely, following the completion of criminal procedure and in case of a favorable outcome for the plaintiff, they initiated proceedings for compensation of consequential damage. In 1999 there was only one case registered where the damaged party did not initiate criminal procedure but only civil procedure, the outcome of which was a first instance decision on compensation for consequential damage in the amount of 20,000 KM paid by a daily paper from Sarajevo (Vecernje novine). This decision was taken by Sarajevo Municipal Court I on 27 September 1999.

Since most media organizations operating in the Federation are seated in municipalities in the central part of the city of Sarajevo (Stari Grad and Centar Municipalities), we shall use data from the competent court (Sarajevo Municipal Court I) to present a summary of judicial practice. According to this court’s register, in 1997 and 1998 there were 56 cases of criminal offenses of defamation and insult (although this analysis does not differentiate press cases from other cases, the fact is that more than 80% of legal actions were taken against journalists and editors). There were eight new legal actions taken against journalists and editors in 1999 and seven pending cases from previous years. Out of the total number of new cases only one was closed by a sentence of one year of probation against the editor-in-chief of the Slobodna Bosna weekly. This first-instance decision was taken on 23 June 1999, i.e. 38 days prior to the High Representative's decision. Two criminal procedures against journalists and editors, initiated this year, were suspended. The others are still pending. Criminal procedures against journalists initiated last year are still undecided, only three of which were closed by first-instance decisions (one acquittal and two sentences to one year of probation). According to the register of this court, most legal actions (13) were taken against the editor-in-chief of Slobodna Bosna weekly and against the editor-in-chief of Dani weekly.

In most cases the plaintiffs are politicians and public figures, persons known to the public. Among recently opened files there is one in which the defendants are not local journalists or media, but foreign – journalist Chris Hedges and The New York Times.

A large number of criminal procedures against journalists and editors have been stalled for several years now. The president of Sarajevo Municipal Court I – speaking in particular about the last six months – explains the mentioned delays as "an intention to harmonize judicial practice with the High Representative's decision.”

Defamation and Insult in Other Countries

Article 10 of the European Convention on Human Rights stipulates that "everyone has the right to freedom of expression" and that "this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers". The right to freedom of expression is not simply one of the cornerstones of democracy, it is also a precondition for exercising many other rights and freedoms guaranteed by the European Convention. Paragraph 2 of the Convention stipulates that "the exercising of this freedom carries with it duties and responsibilities…" and stipulates that the right "…may be subject to…restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of…protection of the reputation or rights of others" (defamation and insult).

Regardless of the fact that most European countries still recognize insult and defamation as criminal offenses, the organization "Article 19" reports that during the last two decades no person in Western Europe was imprisoned for insult or defamation. The general opinion is that imprisonment for these offenses is extremely humiliating and inadequate in democratic society. "The European Human Rights Court clearly expressed its position through a series of decisions that individuals shall exercise a range of rights to criticize political leaders, public officials, government and state institutions, and can be punished for that only if their criticism is factually false or extremely offensive. Even when overstepping the legal boundaries of expression, the punishment shall be proportional to the inflicted insult. The European Court clearly stated that generally it is neither acceptable nor adequate for Council of Europe member states to imprison citizens for criticizing the government, public institutions or officials." ("Freedom of Expression Handbook", London, Zagreb,  1993-1998). The European Human Rights Court has set forth certain criteria and principles regarding media. The following are most important for media: particular freedom of media to comment on issues of political and other public interest; boundaries of acceptable criticism are broader when applied to governmental bodies and politicians than when applied to private persons; the burden of proof regarding evaluations or statements reflecting public opinion or allegations based on rumors or statements of others shall not lie on the defendant. The European Court established the rule that politicians have to stand more criticism than other individuals. Additionally, U.S. courts have pointed out that the individual who has chosen a career in public service "has to accept inevitable consequences – that public attention will be more focused on him/her than it would be otherwise". The U.S. Supreme Court also decided that - if public officials take legal action regarding defamation - "they have to prove not only the falseness of the alleged defamation, but also genuine maliciousness as well", i.e., that the defendant, although aware of it, published untrue information, or did so due to serious carelessness. A French journalist can defend himself/herself if s/he proves bona fide, i.e., that s/he acted carefully, verified facts, or tried to contact the person concerned. The European Court also underlined the necessity to distinguish facts from evaluation. "The existence of facts can be proven, but the truth of evaluations is not liable to the proving process… A demand for verification of truth of evaluations cannot be met, and it itself violates the very freedom of opinion".

Bosnia-Herzegovina's regulations and judicial practice are very much alike to those in the Republic of Croatia. However, despite the fact that the Croatian Criminal Code envisages imprisonment of journalists for violation of honor and reputation of an individual, no journalist has been imprisoned insofar. Most proceedings led to a peaceful settlement, suspension, or, in a couple of cases, probation. However, there were dozens of civil procedures, the outcome of which were first instance and final decisions on compensation for consequential damage. Most compensations are extremely high and present a real threat to freedom of information. There is a similar practice applied in Serbia, where proceedings for alleged defamation or insult are used as a tool to suppress free media (e.g. extremely high fines).

New Measures and Their Consequences

The decision taken by the High Representative "on freedom of information and abolition of criminal penalties for insult and defamation" announced on 30 July 1999, is controversial and inconsistent in itself. The decision, as it is set forth in paragraph 1, practically abolishes nothing but the possibility of imprisonment (envisaged in Articles 213-220 of the Criminal Code of the Federation of Bosnia-Herzegovina), but it does not abolish the existence of criminal offenses! Even following the decision taken by the High Representative – who is empowered to take binding decisions – courts have found space to continue the practice of conducting criminal proceedings, which is obviously contrary to the High Representative's intention and his decision. The Draft Law on Compensation for Damage Caused by Defamation or Insult, drafted by the Federation Government on 16 December, which should be a replacement for the abolished criminal penalties, is not a good basis for creating a balance in encouraging freedom of expression and freedom of media while at the same time protecting the honor and reputation of all citizens in Bosnia-Herzegovina. The very decision taken by the High Representative, as well as constitutional powers, have provided ground for the Government to launch its initiative. However, according to our assessment – the present Draft Law is unacceptable and should be amended. The first defect in the draft is a lack of a more precise definition of the terms defamation and insult. Article 2 of the draft reads "defamation implies assertion or circulation of something false concerning a certain person through media…" What is the meaning of the term "something false"? False facts, or false opinion? It should be precisely defined that this applies only to assertion or circulation of false facts (information and alike), because the present formulation allows the possibility of indictment for so-called expressed opinion (according to the European Human Rights Court it is illegal to demand evidence on whether someone's opinion is truthful or not). The same objection also stands for the definition of the term insult ("the usage of offensive expressions for the purpose of attack…”). The second objection refers to the possibility of multiple punishment – of both journalists and publishers. Articles 3, 4, and 5, namely, stipulate payment of compensation (in different amounts) to the damaged party by both the journalist, who is the author of text, and the publisher. Multiple punishment will not increase the responsibility of media – which might eventually have been the intention of the draft proposer – on the contrary, it will impose self-censorship on journalists and reduce even more the freedom of media in general. The third and certainly the most important objection refers to penalties prescribed in the draft (compensation) which are unreasonably high, absolutely beyond the financial capabilities of journalists and media (ranging from 2,000 to 10,000 KM for journalists and 20,000 to 100,000 KM for publishers). Compensations are so high that this is a real threat to freedom of media and a call for journalistic self-censorship. According to the aforementioned, it is quite debatable what is the real aim of the draft – to be an impetus or to restrict freedom of media, to serve the public or to censor the public, to help (in the establishment of media responsibilities) or to threaten the survival of media, to be only compensation for potentially damaged persons or (in local circumstances) a generous reward for plaintiffs.

Recommendations of the Federation Ombudsmen

Bearing in mind the necessity for institutional encouragement of freedom of expression and media freedoms, and the necessity for harmonization of regulations existing in the Federation of Bosnia-Herzegovina with international standards in this field, the ombudsmen of the Federation recommend a total abolishment of the criminal offenses of defamation and insult (Articles 213-220 of the Criminal Code), not only abolition of imprisonment.

The ombudsmen’s request states: we support the adoption of the law on civil procedure regarding compensation for damage, providing that the definition referring to the terms defamation and insult contained in the respective provisions is in accordance with the European Convention for the Protection of Human Rights and with the European Human Rights Court's opinion. In this law, the possibility of punishing journalists, i.e. authors of texts, should be completely omitted, leaving the possibility for compensation to be requested exclusively from the publisher or founder of a radio or TV station (the Swedish model). This will lead to a considerable increase of responsibility on the part of publishers and founders, and journalists will be relieved of pressure of self-censorship. The institution of a jury (two to four members) should be introduced in civil procedure in the part that is applied to media. In addition to a professional judge, active participation of citizens offers additional protection of freedom of information (again the Swedish model). Since the purpose of the procedure should be to establish the truth of facts and their publication, we believe that Article 8 of the draft should define the media obligation to publish a court decision, in its entirety or only partly, in the same place (the draft allows for this possibility), unless the damaged party insists otherwise. Publication of a court decision, in its entirety or partly, presents the most effective satisfaction for the damaged party, and, at the same time, the most painful blow to the credibility of individual media. As to the amount of compensation for consequential damage, we suggest that the following possibilities be considered: firstly – to limit this amount to a symbolic 1 KM (the purpose of compensation is not its payment, but establishment of truth and its publication, which also increases media responsibility, influencing at the same time media public credibility), or secondly, to limit compensation to reasonable amounts. If the former is not accepted, we think that compensation should be between 1,000 and 3,000 KM for the publisher or founder, which would be more or less proportional to the standard of living in the present economic and social situation in the Federation.

¨      The Internet

Internet Control – Yes or No?

Participants in the First World Conference on the Internet and New Services held last month in Paris were faced with a question to which no one could give a decisive answer. To control the Internet? It is inadmissible. The Internet is for everyone, everyone can state their opinions and views on it and it is crucial for democratization of conventional media, and through them also society as a whole, agreed everyone. However, they warned at the same time of many unacceptable contents on the Internet: child pornography, pedophiles, prostitution, growing and sale of drugs, crime… These consequences, very damaging for society, which are a result of the advantages of the Internet, have to be faced. They need to be prevented, agreed the summit participants, and all countries have to take decisions on this separately. However, can the Internet be controlled?

¨      IMC on Media Conduct in Election Period

Strict Rules for Public Electronic Media

The Independent Media Commission (IMC) has adopted new Guidelines for Equitable Access to Media in Election Periods.

The Guidelines require that all public broadcasters shall provide free access for political spots for all parties and independent candidates during the election period.

¨      News

Fees Now Charged for Broadcasting Licenses

As of January 1 this year broadcasters in Bosnia-Herzegovina are obliged to pay a broadcasting fee to the Independent Media Commission (IMC).

Republika – New Weekly in Republika Srpska

The daily newspaper Glas srpski published the first issue of the weekly Republika on January 6.

Note to readers: As of this issue Media News will no longer be distributed by regular mail. We will continue to distribute the News via electronic mail, a digest of which can be found on our website http://www.mediaplan.ba

Listen with your ears!

Look with your eyes!

Think with your head!

Council:Media Plan Institute

Prof. Dr. Muhamed Nuhić, Hamza Bakšić (Sarajevo); Perica Vučinić (Banja Luka); M.S. Lenart Šetinc (Ljubljana); Prof. Dr. Mario Plenković (Zagreb); M.S. Loius de la Ronciere (Paris); M.S. Aleksandar Todorović (Montreaux); Prof. Dr. Slavo Kukić (Mostar), Prof.Dr. Miroljub Radojković (Beograd).