Croatian judges are not trained to judge the media and do not understand what the public interest is

HINA/Zvonimir Kuhtic

Original article (in Croatian) was published on 03/05/2023

According to a survey conducted by HND, at least 945 lawsuits against the media are currently active in Croatia. The Department of Justice counted 79 SLAPP lawsuits.

“The topic of public interest is so abstract for some of our judges that we can’t really explain to them what it is”.

Judges do not understand that they need to evaluate some media content as a whole. They single out information that is in dispute and that is in the lawsuit and it’s as if they haven’t read the whole article, so if you have offensive value judgments, if someone calls someone ‘mentally disabled’, first-instance judges will usually conclude that there is no public interest for you to tell someone that he is ‘mentally disabled’ and that is where the story of public interest ends in the courts of first instance, and the consequences are catastrophic. We come to a situation where we cannot defend the media in any case if an offensive value judgment has been pronounced about someone”, said Vesna Alaburic, referring to her legal practice in defending journalists and the media at a round table organized by the Croatian Journalists Association.

“Next is the topic of ‘good faith’. As a rule, our first-instance judges reason as follows: you published half-true or offensive information about someone, and you were aware that it harmed someone’s reputation, therefore, you did not act in good faith. We are trying to prove that the concept of ‘good faith’ is the attitude of journalists towards the public and towards the task of informing the public”, she said, concluding that, therefore, on the topic of “public interest” and “good faith”, lawyers must fight battles on an elementary level. And the topic of context or appreciation of the style of individual authors, she said, is a rather abstract topic for many judges. They do not follow the content of the media so that they can know what is common in the polemics that are conducted in society.

The issue of proportionality is also important, she pointed out. Journalist Davorka Blazevic was sued by the former judge of the Supreme Court, Senka Klarin Baranovic, because of the portrait she published in the form of a column in 2015 on the Tris web portal, and although she has since removed the text, she was sentenced in criminal proceedings, she released a correction and an apology, the judge initiated additional proceedings against Davorka Blazevic for financial compensation, and the judges did not dispute this due to the principle of proportionality. Blazevic, now a retired journalist, eventually paid the fine after HND organized a fundraiser through solidarity contributions from colleagues.

Alaburic expressed these views at a round table on the subject of SLAPP lawsuits organized by HND on the occasion of Press Freedom Day.

According to a survey conducted by HND, at least 945 lawsuits against the media, editors and journalists are currently active in Croatia, of which 910 are for compensation for damage to honour and reputation in the total amount of at least 5.4 million euros, and the rest are criminal charges. Prosecutors are most often people from public and political life and judges, that is, people in positions of power. When it comes to criminal proceedings, nine media reported a total of 35 such proceedings, and the longest court case has lasted 33 years and is being conducted against Vecernji list.

According to the Ministry of Justice, there are 79 SLAPP lawsuits

Not all of the aforementioned lawsuits fall into the category of SLAPP lawsuits, that is, strategic lawsuits against public participation (SLAPP stands for Strategic lawsuit against public participation). These are lawsuits brought by the powerful from the political or economic sphere and are aimed at intimidating and silencing critics by burdening them with the cost of a legal defence until they give up their criticism or opposition.

The anti-SLAPP directive proposed by the European Commission, which still needs to be passed by other EU bodies before being adopted, defines SLAPP as “manifestly unfounded” or excessive legal proceedings initiated against natural or legal persons, especially journalists or human rights defenders, and related to their engagement or public activity.

These are malicious lawsuits that are not initiated to achieve a favourable outcome of the court proceedings, but primarily to discredit and exhaust (most often) journalists.

According to State Secretary, Vedrana Simundza Nikolic, the Ministry of Justice recorded that out of the total number of lawsuits against journalists, 79 lawsuits could be characterized as SLAPP.

As there is no clear definition, she asserted, they found this number by going through eSpis to see where the prosecutors are repeating themselves (it does not have to be the same media company) and what is the position of the prosecutor in society (politician, judge, local powerful).

She said that she expects that in half a year or a year, the text of the European Directive will be defined at the EU Council, so that in two or three years it will take root in our country. However, as we have already written, the Directive will refer to cross-border lawsuits, and there are recommendations that individual countries themselves start to rein in SLAPP lawsuits.

Simundza Nikolic also announced that a working group was established to change the civil procedure and emphasized that judges must have a mechanism for early recognition of SLAPP lawsuits, which they do not have now.

Jasna Vanicek-Fila, director of the Directorate for Media and Development of Cultural and Creative Industries of the Ministry of Culture and Media, announced that the National Plan for the Development of Culture and Media will soon be put into public consultation, and one of the measures foreseen in the plan is the early rejection of SLAPP lawsuits.

Namely, the intention of the European Directive, and this is how it is regulated in other countries such as the USA, is that SLAPP lawsuits are dismissed immediately and that long and exhausting court proceedings are not initiated.

Judges could do this even now based on Article 10 of the Civil Procedure Act, which stipulates that “the court is obliged to prevent any abuse of rights in the proceedings”. However, it was announced that the criteria in that law, as well as in the Media Act, will be announced more clearly.

Corrections are the first step in a lawsuit

Lawsuits against journalists and the media, including serial ones, are not new in Croatia, and until the decision of the European Court of Human Rights in Strasbourg in the case of Narodne Novine from Zadar, the amounts demanded were often astronomical. And in 2018, the European Court of Human Rights concluded that the verdict against Narodni list – which ten years earlier had published a controversial article in which it questioned the participation of Zadar County Court judge, Boris Babic, at the party of the controversial Rena Sinovcic – was too much interference with freedom of speech and that the awarded HRK 50,000 was an excessive amount of compensation and suppression of freedom of speech.

Since then, the Constitutional Court makes decisions according to the same criteria as the Court in Strasbourg. It recommends that more attention be paid to freedom of reporting, but, as confirmed by Constitutional Court judge, Goran Selanec, this has not taken root at the level of first-instance courts.

The lower damages that are awarded prompted the former president of the Supreme Court and the current president of the European Association of Judges, Djuro Sessa, to state that the media are not too threatened because, he said, the average amount of the requested compensation is around 6,000 euros, and they are given fines that are three or four times lesser. He also believes that there would be fewer lawsuits if the media published corrections following the law.

The gathered editors replied to him that these, often serial, fines can destroy smaller media anyway, and that corrections in most cases serve only as an introductory step before a lawsuit. Also, some judges treat the publication of the correction as an admission of guilt.

Inadequate education of judges

At the round table, there was a lot of talk about the need to educate judges who, according to the testimonies of fellow journalists who attended the workshops organized by the Ministry of Culture and Media with judges, often do not have basic knowledge of the journalistic profession.

The presentation of lawyer Alaburic was demotivating, as she reported that HND had requested from the Judicial Academy the data based on which judges are educated when it comes to the media.

“I can tell you that the result is an absolute disaster. Of the decisions of the Constitutional Court, there is not a single decision that directly concerns Article 38 of the Constitution (which guarantees freedom of expression), but one decision that concerns the protection of reputation, that is, the protection of reputation prevailed over freedom of speech. As for the judgments of the European Court of Human Rights, there were seven judgments, five of which are not at all relevant for the education of judges (…) As for the judgments of the county court, there is still one judgment on the list that the Constitutional Court, due to violations of the right to freedom of expression – abolished. So, I would say that there is actually no good basis for educating judges”, she asserted.

The President of the Supreme Court, Radovan Dobronic, who stated in the introduction that judges should be able to endure criticism and refrain from lawsuits, concluded that many judges in local first-instance courts are not up to dealing with media issues. He argued for the transfer of such cases to the county courts in the first instance because they are less burdened and would work more easily on harmonizing practice.

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