Freedom of expression in Croatia under assault over mental anguish

Croatian media will not remember 2018 as a good year because number of rulings against journalists and media, increasingly in conflict with basic logic, was highest thus far, including the war-stricken 1990es. The situation has escalated to the point where existence of media is under jeopardy, with some rulings so illogical they can literally be interpreted as attacks on media freedom.

There are more than enough examples. The Zagreb Municipal Court ruled in favor of Deputy Speaker of Sabor and deputy president of the Croatian Democratic Union (HDZ) Milijan Brkić in a first instance ruling against LIDER political weekly which, according to the ruling, slandered Brkić in an article from 2014. The Court ruled Brkić was entitled to compensation of HRK 15,000 as author of the article "Politics is a whore after all" Goran Litvan wrote that Brkić plagiarized his thesis and informed Lučko anti-terrorist unit members they would be arrested for suspicion of involvement in war crimes in Grubori that took place after Operation Storm. Even though it has been shown that Brkić plagiarized his thesis (which is why he had to present a new one) and he testified in the Grubori trial that he informed Lučko AT members about arrests, LIDER was found guilty. Judge Sabina Dugonjić concluded that the article contained insulting information about Milijan Brkić which can lead readers to logical conclusions about his moral character.

That was the first lawsuit against LIDER weekly in almost 15 years of its existence. The first ruling still has not been confirmed, which is why editor-in-chief Miodrag Šajatović did not want to comment on the judge's conclusion. He announced that LIDER's attorneys will surely appeal, but noted that, in his opinion, many court processes against the media should cause a reaction from the press:

"Journalism comes with a risk as you should always count on someone suing you over opinions you have presented. However, position of the media in Croatia is currently bad because the media reported on injustices and frequently made legislators change unjust regulations, but have not done it when it comes to journalism. Simply put, regulations allow persecution of journalists. I will not blame the judges because they have to follow regulations as they are. That is why I believe it is high time for journalists and media to unite and push for changing regulations. It would be best if the association of publishers got involved, which operates as part of the Croatian Association of Employers (HUP)," noted Šajatović.

Bad criminal regulations from 2013

However, that is a process, but courts keep making rulings against the media that would in normal times end up in the "believe it or not" rubrics. Like the ruling from last week, where the Zagreb Municipal Court ordered the NewsBar satirical portal to pay compensation of HRK 12,000 to TV host Velimir Bujanec, who sued for the article dubbed "ER team revived Bujanec after news that EUR 44 million worth of cocaine was seized." Bujanec claimed in the lawsuit that "the whole article is inaccurate," and the Court ruled in his favor.

Supporters of the judicial attack on journalists and media point to criminal regulations that came into force on 1 January 2013, which retain insult and slander as criminal offenses and introduced a new offense - shaming. When a court decides that a journalist shamed someone "in the press, radio, TV, IT system or network, at a public gathering or in other ways that made the content accessible to many people, it presents shaming, which is fined with 360 daily wages. Of course, courts decide whether the factually accurate claim was in public interest or whether the journalist in question purposefully tarnished the reputation of people or institutions they reported about. Simply put - it is a subjective decision of the judge.

In case of slander, which must be a claim rather than an opinion, fines stand at 500 daily wages. If someone expresses an opinion which made a person feel belittled, it is a case of insult.

Split County Court judge and State Judicial Council (DSV) member Neven Cambj got HRK 50,000 from JUTARNJI LIST in November based on a final ruling of the Split Municipal Court. In an authorized interview, MOST MP Nikola Grmoja said that "the State Judicial Council is a source of corruption. We cannot have corrupt people appointing our judges." In the interview, Grmoja did not name any DSV members, including Cambj, but the judge raised a private lawsuit against the paper, claiming that the claims in the interview were aimed against him. He persuaded the Court that the interview harmed him as "he took tranquilizers for several days" and demanded HRK 50,000 from JUTARNJI LIST for the mental anguish it caused him.

Even though Grmoja confirmed in court that he authorized the interview and added that he stands behind his claims, the Court concluded that the accusations he brought forth were so severe and insulting that sanctions must be imposed, but not against the person who made the claims, but JUTARNJI LIST.

This case raises the core question of operation of the media because if publications will be sanctioned for releasing authorized interviews, everyone who feels like it will be able to raise a lawsuit and take the publisher's money. According to that logic, Defense Minister Damir Krstičević could become rather rich soon if he raised lawsuits against the media that released or relayed interviews with experts who question the purchase of fighter jets from Israel. The situation in Croatia has become paradoxical as even the media that professionally report on other people's opinions are exposed to judicial persecution - which is called censorship.

The ruling in the case against LIDER raises the same question because what is sanctioning the publication of factually accurate information other than an obvious example of censorship?

Milijan Brkić and Catholic far-right activist Željka Markić are responsible for the largest number of lawsuits against the media. NOVOSTI weekly reported in mid-2018 that Markić and her NGO In Name of Family filed 16 lawsuits and raised criminal charges against journalists and publishers of at least ten Croatian media, targeting VEČERNJI LIST, JUTARNJI LIST, NOVOSTI, EXPRESS, N1 and RTL broadcasters as well as Telegram.hr, Net.hr, Index.hr, Crol.hr and H-Alter portals. For instance, Željka Markić sued VEČERNJI LIST for HRK 40,000 over the text by columnist Milan Ivkošić from 2016, with the court awarding her 15,000 in a first-instance ruling.

During preparations for the so-called citizens initiative The People Decide, as many as seven lawsuits were raised in the period between 11 and 19 April. The process ended with two weeks of gathering of signatures for holding an anti-minority referendum. On 11 April, In Name of Family raised a lawsuit against the Association for Independent Media Culture as the publisher of H-Alter, demanding HRK 40,000 at the Zagreb Municipal Court. In the lawsuit, it points to the article "Violence - everywhere around us" as problematic. To be more accurate, the sentence "In Name of Family, though it sounds nice and not violent, made one of the largest structural violence moves in Croatia."

Some 30 lawsuits have been raised against NOVOSTI weekly and portal in the period since 2015, with 15 or so processes underway. Many people raised the lawsuits - besides Željka Markić, who raised four lawsuits over the article about her by Boris Dežulović, there is also the entrepreneur Danko Končar, who is demanding HRK 100,000 even though NOVOSTI released more or less known information about the businessman: he was convicted in former Yugoslavia, faces serious charges in Finland and closely cooperated with MEP Ivan Jakovčić.

NOVOSTI editor-in-chief Nikola Bajo noted that lawsuits are making work difficult and warned about judges who make rulings. "Judges are often not educated adequately and simply do not understand the issue at hand so they grant large compensations for alleged slander. Some 70% of lawsuits against us is over satirical texts that we release, but we still have to prove that it does not present slander."

The Telegram Media Group was sued over a text released on Telegram.hr portal titled "Scientists from Law School tried to answer how Željka Markić succeeded. Well, largely by lying and manipulating." In the lawsuit, she claims that the publisher released "lies as well as inaccurate and extremely harmful information" that are "exclusively aimed at slandering, insulting and defamation of the plaintiff, and have caused significant damage in the form of violation of rights by tarnishing her name, honor, reputation and dignity, causing mental anguish, insomnia, feelings of discomfort and questioning of her own worth," which she values at HRK 40,000.

Still, right-wing radicals are occasionally unsuccessful. In November 2017, the Zagreb County Court dismissed charges of Catholic NGOs headed by Željka Markić and Vice Batarelo, who claimed that INDEX discriminated against Catholics in the articles "Dead people live: Catholic necrophilic orgies are the hottest show on the HRT," "What to listen to in queue for touching a corpse" and "Catholics got angry and started threatening - what would Saint Leopold say." The three articles in question were released on Index.hr portal when the corpse of St. Leopold Mandić was on tour in Croatia, with judge Lidija Jelavić concluding that the texts in question "did not aim to harm dignity of Catholics or cause fear, hostility, denigration or an insulting environment."

"Lawsuits do not affect our work and they cannot change us. Whatever they do, we will continue working in professional and responsible manner as we have thus far," said INDEX deputy editor-in-chief Neven Barković. His suggestion for changing the current situation is quite original: "changing the Media Act is not enough. We have to change the judicial system in Croatia - judges, prosecutors and regulations."

Not even the most influential daily papers are free from bombardment with lawsuits - JUTARNJI LIST and VEČERNJI LIST. The latter has been facing some 30 lawsuits and demands for compensation for mental anguish each year, with Milijan Brkić raising the largest number of lawsuits. The situation is such that editor-in-chief Dražen Klarić ironically noted that "recent examples of rulings confirm that lawsuits against the media are one of the few segments of the judiciary that work well as it reacts very promptly and is exceptionally efficient if the role of the courts is only to discipline the media. Croatia would be very orderly if the judiciary was as prepared to react to alleged transgressions of politicians, State officials, businessmen and other powerful people."

Claims against VEČERNJI LIST are worth HRK 20,000, 30,000, 50,000 and more, with the paper recently paying 60,000 for an article released in 2014. Klarić believes it is troubling that some judges apparently do not understand the role of the media in democratic societies, especially when it comes to freedom of speech in the political arena. "It is unacceptable that media and journalists, despite changes brought by technological progress and in a time where information is becoming increasing public, are still condemned as propagators of other people's political statements or that publishers are still paying compensation for so-called mental anguish of politicians and State officials.

Obviously, regulations on media should be modernized to keep pace with technological changes, especially considering the fact that media in far larger and richer countries are facing difficult existential problems. However, in those countries, the media are not facing judicial lack of understanding of their role in the society, but have traditions of protecting freedom of expression and legal certainty," said Dražen Klarić.

Attack on existence of papers

Judges almost never award compensation for mental anguish lower than HRK 50,000, which presents a direct attack against existence of daily papers. Besides that, when ruling in such cases, courts ignore the Civil Obligations Act, which stipulates that courts must consider severity and duration of mental anguish as well as the purpose of awarding compensation. The purpose is to prevent lucrativeness, which judges are ignoring.

In many cases, judges and other "mass" plaintiffs sue many media over information relayed by many media. The latest such case is that of Milijan Brkić, who filed tens of lawsuits against different media over the same information. That is a way (which the courts approve) of getting more money for the same alleged mental anguish. It appears that plaintiffs, for instance, suffer mental anguish for reports on Index portal on Tuesday morning, suffer again over the same report in JUTARNJI LIST on Wednesday afternoon and again two hours later due to VEČERNJI LIST. The Civil Obligations Act stipulates that such cases are to be merged into one, but plaintiffs do not do this because they can get more money that way. They are doing it because they can. The courts let them.

"Sanctioning of the media is different from similar cases, is much stricter and disproportionate to severity of the acts that journalists committed according to the judges. Also, judges do not adhere to criteria adopted by the Supreme Court when it comes to non-material damage as amounts depend only on subjective criteria of each judge," warned JUTARNJI LIST editor-in-chief Goran Ogurlić. Compensations for mental anguish caused by journalists are comparable to compensations for mental anguish over death of loved ones. That would mean that judge Cambj suffered from the interview that MP Grmoja gave to JUTARNJI LIST, where he said that "the DSV is a source of corruption," almost as much as he would if someone killed one of his parents, brother, sister or wife.

All want money

Ogurlić pointed out that the courts are in violation of Article 38 of the Constitution, which "guarantees freedom of thought and expression, with freedom of expression especially including freedom of the media and press." The Constitution explicitly prohibits censorship, with journalists enjoying freedom of expression and access to information.

"However, Croatian courts place honor and reputation above freedom of expression. Courts are of the opinion that journalists, when expressing their opinions, must choose their words carefully and use only the words that respect honor, reputation and dignity of the person they are reporting on. So, rulings explicitly call for censorship. Besides writing about them, judges insist that journalists choose their words carefully when writing about representatives of the other two branches of government, which means that politicians are equally successful at suing journalists for mental anguish and getting hefty compensation.

The fact that almost all plaintiffs demanded exclusively money as compensation for non-material damage says a lot about the purpose of lawsuits against the media. They do not demand corrections and do not file for release of corrections together with their lawsuits demanding compensation. They are only interested in money," said JUTARNJI LIST editor-in-chief.

At any rate, while Croatian courts easily award compensations for slander, the European Court of Human Rights (EHCR) recently took the opposite stance. The Court in Strasbourg concluded that "journalists and media have the right to express offensive opinions if they are based on facts and if the topics are in public interest."

However, judges here are not interested in the opinions from Strasbourg and pressure is no longer only on national, but increasingly frequently on local media as well. The latest case is that of Sanja Lacković, wife of MP and Mayor of Đurđevac Željko Lacković, who sued PODRAVSKI LIST because it interpreted Lacković's statement on his wife after she was employed at the City Library in the city where he was Mayor and is now head of the City Assembly. Judge Alen Golub had no problem awarding compensation of HRK 40,000 to Sanja Lacković for PODRAVSKI LIST using the title "When others did not want her…" as Lacković said in court that she was made fun of with the aim of causing mental harm.

It appears that ending legal repression is becoming the fight for survival of the media in Croatia. It is time for the Government to start dealing with this problem because silence means support for everything that is happening.