By: Maida Salkanović
When the Sarajevo-based citizens’ association Why Not received a lawsuit suing them for the content of one of their articles, it caused confusion down the ranks. The amount of damages requested was absurd – 750,000 Euros, and the claims seemed nonsensical to them. The lawsuit was filed by a local company that one of Why Not’s web portals, Raskrinkavanje, wrote about in partnership with FakeNews Tragač, a fact-checking outlet from Serbia.
Tijana Cvjetićanin, Program Director at Why Not, said that the lawsuit did not challenge any of the facts they presented in the article. It was instead based on a lot of unfounded claims, she said, about the organization trying to harm the business and that in one of the versions of the amended lawsuit, it was even claimed that there was emotional pain inflicted on the company.
Belgrade-based investigative outlet Krik is inundated with lawsuits. They are currently facing 12 of them, primarily filed by individuals with close ties to the authorities, including the best man of the president of Serbia and the former director of the Security Intelligence Agency. Even a man accused of producing over a ton of marijuana sued KRIK. Despite having two indictments and hundreds of articles in the media, he claims that his neighbors refuse to talk to him solely because of KRIK’s reporting.
Faktograf, a Zagreb-based fact-checking platform, also faces six lawsuits for having checked the accuracy of public figures’ statements.
These sorts of lawsuits are not uncommon in South East Europe and recently there has been a buzzword connecting them: SLAPP.
SLAPP stands for strategic lawsuit against public participation and represents a lawsuit that is designed to silence or punish the defendant for speaking out on a matter of public interest. Usually, this involves a costly and lengthy legal process. SLAPPs are also a warning- not only do they attempt to discourage the defendant from speaking out but also deter others from considering it.
“It is legal harassment,” said Cvjetićanin.
Kruna Savović, a Serbian lawyer specializing in Media Law and Intellectual Property, said that SLAPP lawsuits are not recognized in the legislative system in Serbia and other countries in the region, and as such, it is harder to define what is a SLAPP lawsuit. She stated that one indicator that a lawsuit is a SLAPP lawsuit is when it is unclear why the defendant is sued.
“My personal indicator is when it’s not clear, when you take a look at the lawsuit and you don’t understand,” she said.
“You feel as if someone wants to forbid you to write about a certain topic. In an ideal situation, the SLAPP legislation would be such that the court assesses whether it is in someone’s interest to protect their right or to silence the one who reports on a certain topic, personality, or phenomenon.”
Since the definition is not clear cut, the number of SLAPPs in the region is disputed – it often depends on who is counting. Croatia, an EU member since 2013, is one of the EU countries with the highest number of SLAPPs.
Croatian Journalists’ Association (Hrvatsko novinarsko društvo- HND) counted at least 945 lawsuits against the media, editors and journalists that are currently active in Croatia. However, the state secretary of the Ministry of Judiciary and Administration, Vedrana Šimundža Nikolić said in a round table in May that out of the total number of mentioned lawsuits, only 79 could be characterized as SLAPP lawsuits.
Croatian lawyer Vesna Alaburić, an expert in media law, said for SEE Check that the criteria for defining certain lawsuits as SLAPPs are quite uneven, so it is difficult to compare data on SLAPP numbers by individual countries.
“Croatia is undoubtedly one of the leaders in terms of the total number of lawsuits against journalists and media publishers, and of those over a thousand lawsuits, about 30 are qualified as SLAPPs”, she said.
These numbers are consistent with the study published by CASE (Coalition Against SLAPPs in Europe). SEE countries made the top of the list, with Slovenia second, Bosnia-Herzegovina third, and Croatia fourth when accounting for population numbers.
With 41 lawsuits, Slovenia is second only to Malta, which is infamous for lawsuits against journalists. In Slovenia, “defamation is still criminalized and used by politicians and those in powerful positions as an effective means of silencing criticism. Although in criminal proceedings in this EU country, legal costs must be paid by the complainant, the costs are low compared to those of other forms of dispute that they have ‘little to no deterrence effect’”, states the CASE report.
Bosnia-Herzegovina has 40 recorded SLAPPs, and Serbia is also ranked high with 18 lawsuits. Kosovo has two, Albania three, and Montenegro 0 (in the new updated version of the study). North Macedonia was not included in the survey.
Photo: Coalition Against SLAPPs in Europe
Flutura Kusari, legal advisor at the European Centre for Press and Media Freedom (ECPMF) and a founding member of the CASE Coalition, said for SEE Check that even though there is no shortage of SLAPPs, there is not enough data in SEE and no proper monitoring.
“This is a problem because in order to change the existing legislation, you always need evidence to convince those in power,” she told SEE Check.
Defamation as a Criminal Offense
In Republika Srpska, an administrative entity in Bosnia-Herzegovina, a law on the criminalization of defamation has recently been passed that considers defamation a criminal charge. The law does not take into account public interest, which is one of the main things to consider when judging a SLAPP, experts agree.
“Public interest is the justification for stating and passing on factual claims and value judgments, even when they hurt the reputation and honor of individuals,” Alaburić noted in her analysis published in online media outlet Žurnal in March of 2023, adding that public interest is a central concept both in journalist ethics and the right to freedom of expression.
A lawyer Kruna Savović noted that these are the principles of the European Court of Human Rights, where the judges need to evaluate whether the right of an individual to protect their honor and reputation outweighs the right of the public to be informed.
She emphasized that public interest extends beyond just the journalist.
“The freedom of expression is not only tied to the journalist, their right to do their job but also the right of the public to be informed”, she said for SEE Check.
Borka Rudić, the general secretary of the BH Journalists Association said that with the new law, those who are used to suing journalists now have wind at their back.
“All those public officials who were often previously plaintiffs against journalists in civil lawsuits have now received a new mechanism for suing journalists and exerting legal and institutional pressure on the media and freedom of expression with the new Law on Defamation in the RS”, said Rudić.
Roberta Taveri from ARTICLE 19, an organization concerned with the protection of freedom of expression, said for SEE Check that re-criminalization of defamation in Republika Srpska is a step backward from international freedom of expression standards. Taveri noted that this is especially relevant as defamation laws are widely used to bring SLAPP lawsuits and there are no safeguards against SLAPPs in the legal framework in RS.
“SLAPP lawsuits are usually part of a systemic set of threats against the individual or organization who has been targeted, so at times they represent one of the many tactics to silence criticism and dissent,” she told SEE Check.
Shortcomings of the Judicial System
By their definition, SLAPPs are intended to make the defendant go through an arduous and lengthy legal process that would exhaust their resources, to discourage them from public participation.
Taveri said that they identified some critical patterns from interviews and testimonies of journalists targeted by SLAPPs. She noted that the claimant usually requests extremely high damages that could be very detrimental to the target. Their workflow is also interrupted by the amount of time they need to spend in court or collecting documents.
“The psychological dimension also represents a key challenge, as most journalists live for many years in fear of losing the cases and having to pay extremely high costs, feel isolated, which is especially true for freelancers, and at times, as a consequence, they recur to self-censorship in their work for fear of being sued again,” she said.
Petar Vidov, an editor at Zagreb-based fact-checking outlet, Faktograf, said that none of the six cases brought against them are finalized, even though some lawsuits were filed several years ago. However, this is not the case just for SLAPPs but in general, he thinks.
“A big problem with the Croatian judiciary is that everything takes a long time. If someone sues you as a journalist, you can expect to receive the first judgment of the first degree, after five or six years, then there is still the possibility of an appeal, so these proceedings take a very long time,” he said.
Illustration: Saúl Bucio, Unsplash
Another big problem is corruption, which can allow those in power to abuse the system. In an interview for Žurnal, Alaburić noted:
“If you don’t have a professional and good quality prosecution, then there is a great danger of favoring certain individuals and that the prosecutor becomes a free lawyer for people in power and those who want to use criminal proceedings to protect private interests.”
Rudić said that they noted several cases in which judges and prosecutors sued journalists because they wrote about how certain investigations were conducted or judgments were made.
“Throughout Bosnia and Herzegovina, holders of judicial functions, first of all judges and then prosecutors, react by filing lawsuits against journalists when they question the way in which they perform their prosecutorial duties,” she noted.
“In cases of lawsuits filed by judges and prosecutors, it is to be expected that a fellow judge will be non-objective, that is, they will be somewhat biased towards the judge who sued the journalist,” continued Rudić.
Judges are often also not very knowledgeable about the journalism profession, our interviewees agree, which makes the situation harder for those defending the public interest.
Fact-checkers as a Special Case
Another dimension of the issue is that the lawsuits are not only brought against journalists in general but fact-checking organizations as well. The claims, for example, have been brought against fact-checking platforms Raskrinkavanje and Istinomjer in Bosnia-Herzegovina, Raskrikavanje in Serbia, and Faktograf in Croatia.
Petar Vidov said that while traditional lawsuits against journalists refer to defamation, in the cases of lawsuits brought against them, there is no such element.
“All these cases deal with whether or not something someone said in public is based on fact. Therefore, it absolutely falls under the freedom of expression, it should not be subject to lawsuits, which is why it is extremely easy to establish that these are cases of lawsuits that have no real basis and serve to waste journalists’ and editors’ time and to force them to next time when they mention that person, they think about what they will write about them.”
Cvjetićanin also mentioned that fact-checkers are a special case because they do not receive the solidarity that is usually extended to their journalist colleagues.
“If you are a classical media outlet and do reporting on current news and you are targeted, there is a frame for this to be recognized as a problem, it’s going to be mentioned in reports on media freedoms, it’s going to be addressed by media associations and journalist associations, you’re going to be shown some solidarity, you may be offered support. It’s not the same for fact-checkers. And that’s very worrying. Because we haven’t seen any kind of solidarity from any of these actors when we were even threatened with violence or harassed with lawsuits,” she told SEE Check.
Regarding the fact-checking outlet Raskrikavanje in Serbia, one particular lawsuit is quite intriguing. The lawsuit was filed after an article about the number of false news on the front pages of several tabloids in Serbia. One of them sued Raskrikavanje, claiming they are unfair competition. They didn’t allege that anything published was untrue but instead asserted that the fact-checkers are “ruining their business.”
Future of SLAPPs in Europe
The term SLAPP was coined in the US in the 1980s and they are generally well understood and accommodated in the legal system in that country. Thirty-three states and the District of Columbia have passed anti-SLAPP legislation that allows defendants to dispose of meritless lawsuits quickly. The merits of an expedited process in the case of SLAPP have only been discussed in Europe since relatively recently.
There is currently a proposed directive of the European Commission to introduce safeguards that would benefit defendants in SLAPPs. It is a step in the right direction, but critics point out that the proposed directive would only be implemented in cross-border cases and not integrated into the national legislature of the member states.
“SLAPPs are still not recognized as a separate category of lawsuits that would be subject to some different procedural rules. Procedural regulations have not been changed so that there is no possibility of suspending the proceedings at an early stage because it is an abuse of procedural powers and the intention to, in essence, prevent public debate on a topic of public interest and silence journalists through court proceedings. As far as I know, the situation is similar in other European countries. That is why it is important that the European Union directive be an incentive for intervention in national legislation,” said Alaburić.
The directive also proposes introducing the deposit for the plaintiffs to cover the costs of the lawsuit.
“For all countries in SEE it is absolutely key to follow these standards and implement them as soon as possible,” said Flutura Kusari from the CASE coalition.
Tijana Cvjetićanin from Why Not said that the ideal situation is if the court practice improves.
“If courts start dealing with these lawsuits in a way that is fast and efficient and deter, demotivate from repeating lawsuits or going into endless appeals, processes, that would be quite helpful, to send a message that they will not allow for the justice system to be abused to harass media.”
However, she is not confident that will be the case, especially in those places where the courts or the prosecution offices are not politically independent.
“Generally, the independence and the integrity of the legal system is the best barrier against this and learning what these lawsuits are, recognizing them, recognizing the pattern and acting, responding to them accordingly deter, especially political actors from doing this, from effectively jeopardizing media freedoms, freedom of expression in this way,” she said.
The Effects of SLAPPs
Are SLAPPs producing their desired effect? It is hard to say.
Petar Vidov states that some journalists might get exhausted by the harassment.
“I am lucky that I am not one of those journalists who have to go to the courts every week, but they do exist. If you harass people long enough, waste their time with court visits, it’s quite likely that these people will conclude, why should I bother with this.”
Cvjetićanin said that the process is time-consuming, draining, and stressful even when the accusations are ridiculous.
“You still have to go through all of that. You are legally forced to waste your time on something that is clearly indefensible in court. You still need to waste your time, your energy, your resources, and the people who wrote those articles and the editors and the management, there’s a lot of the structures in the organization that you need to employ on all of this. And this is something that is really time-consuming and unnecessary and it clearly has this intention, to make it inconvenient for you to deal with those same actors ever again,” she said.
Kusari from CASE pointed out that financial support in these cases is essential.
“Sometimes we see journalists that are on their own, abandoned, with not enough resources,” she said, adding that ECPMF has a legal fund that has so far helped over 200 journalists to pay lawyer fees.
“Personally, I somehow manage quite well not to worry about such things, but I have always had the good fortune of working in newsrooms that stand behind me in such cases. So, I wasn’t worried about whether I would have to pay a lawyer, everything that should have been covered for me, was covered for me. It didn’t bother me personally, but I can understand that not everyone has the same experience,” Vidov told SEE Check.
Krik is also persisting. With a high number of lawsuits from the people close to the power structures in Serbia, this outlet keeps publishing articles that continue exposing crime and system irregularities regularly aided by those in power.
Despite their journalists and editors frequently finding themselves in the defendant’s seat in courts, they have never once considered stopping.
The large number of lawsuits and lengthy legal processes have not resulted in a final legal verdict so far. The only silver lining, as they say, is that each lawsuit is followed by evidence of the enormous support they enjoy within the Serbian public. After all, public trust is the only thing that ultimately matters.
Cvjetićanin said that even after the 750,000 EUR lawsuit, her team continued publishing articles on the same type of false advertising that motivated the lawsuit. They published too many to count, she said, with the lawsuit not having had any effect on them.
“It did not work as a deterrent and it will never work as a deterrent in our case but that seems to be the obvious intention of such lawsuits,” she said.
