On July 11, 2024, the Constitutional Court of Bosnia and Herzegovina (CCBH) rendered a decision rejecting a constitutional appeal regarding defamation as manifestly ill-founded. The court concluded that since the defamed person had already succeeded in a lawsuit against one outlet concerning the same defamatory article, they are not entitled to any further award against another outlet.

In this article, I argue that this decision is fundamentally flawed and lacks support in the European Court of Human Rights (ECtHR) case law, which the CCBH purportedly relied upon.

Facts

Vladimir Kovačević (the appellant ), awarded Bosnian and Herzegovinian (BaH) journalist, was a victim of a smear campaign in August 2018. On August 31, 2018, Informer, a Serbian pro-Government tabloid, posted an online article alleging that Kovačević was a part of a group organizing a coup d’état in Republika Srpska (RS) against RS government. The article also claimed that the appellant had received 80 000 USD from USAID for his actions of destabilizing RS.

Two RS-based outlets conveyed Informer’s article on the same day without adding anything. questioning the accuracy of the claims, or seeking a comment from Kovačević. Kovačević sued them for defamation, wining the case against RTRS (a RS public broadcaster) but losing against ATV (a private outlet under US sanctions). The article was published and conveyed only a few days after Kovačević was assaulted. The direct perpetrators were convicted for attempted murder, but those who ordered the attack remain unknown.

Banjaluka Basic Court (BBC) as a first-instance court and Banjaluka District Court (BDC) made a completely different judgments in identical cases. The only difference was the defendant: RTRS and ATV. These inconsistencies in the courts’ practices have been criticized (see analyses here and here).

In the case against RTRS, the courts declared the article defamatory as there was no evidence that Kovačević had received the money or had participated in the coup plot. The contested article was attributed to RTRS according to Article 5 Law on protection against defamation since one can be liable even for conveying someone else’s defamatory statement. RTRS lodged the constitutional appeal before the CCBH but the court found no violation of freedom of expression indicating that RTRS’s article was a mala fide act.

The outcome was different in the case against ATV, where the BBC stated that while it was true Kovačević had not received any assets from USAID, receiving money and cooperating with USAID was not shameful, and therefore the incorrect claim did not harm Kovačević’s reputation. The court failed to conduct a contextual analysis, particularly overlooking the fact that the alleged money was intended for overthrowing the government.

The BDC confirmed the lower judgment and Kovačević appealed to the CCBH. He claimed that his right under ECHR Article 8 was violated, as well as his right to fair trial, particularly given that the same courts issued two opposing judgments on cases concerning the same subject.

The Criticism of the CCBH Decision

In reaching its decision, the court did not balance rights under ECHR Articles 8 and 10, but ruled solely on one fact – the appellant already won the case and was awarded damages against RTRS. Consequently, it concluded that there could not be a reputation violation in another case against different media (ATV) for the same statement.

There are two important passages of the judges’ rationale. The first is:

  • “punishing journalists for reporting the statements of other persons would seriously jeopardize the media’s contribution to the public interest debate and would not be justified, unless there are particularly important reasons for doing so” (§ 13; citing ECtHR Anatoliy Yeremenko v. Ukraine§ 99-100).

The CCBH selectively cites ECtHR practice, omitting to note that Strasbourg court holds that press freedom may be jeopardized only if a journalist disseminates statements made by another person in an interview. The CCBH simply failed to include the “in an interview” part of the sentence. Further, this opinion is a quotation from famous Jersild v. Denmark case (§ 35) where a journalist was sanctioned for statements of racists in his radio show. The Kovačević case is, yet, different from both ECtHR cases.

Regarding Anatoliy Yeremenko case, the journalist was sanctioned for statements of another person, albeit these statements had a factual basis in other documents – “the statements were corroborated with the case file materials of several cases examined by the courts”. Additionally, the journalist’s contested activities were part of his investigative journalism actions [§ 103]. There was no factual basis or investigative journalism in ATV’s conduct; they merely transmitted the clearly false article. Hence, Anatoliy Yeremenko and Kovačević cases are not comparable. What is more appealing is that the CCBH in RTRS case explicitly stated that conveying the contested article was an act of mala fide (§ 43).

In the terms of Jersild case, ATV modus operandi is also not comparable to the actions of a journalist (the applicant) in that case. Jersild was indeed sanctioned for words of his racist guests. Yet, he “dissociated him from the persons interviewed” (§ 34). He announced in the show “that the object of the programme was to address aspects of the problem, by identifying certain racist individuals and by portraying their mentality and social background” (§ 33). Unlike Jersild, ATV failed to analyze Informer’s article or dissociate itself from it. Thereby, comparing Jersild and ATV is simple fallacious.

The second important passage, which I found to be crucial is:

  • “it would not be proportionate to the legitimate aim of protecting the defendant’s right to freedom of expression and the objectives of the [RS Law on protection against defamation] that the appellant, due to the same expression, in an unspecified number of separate proceedings, obtains compensation for non-material damages” (§ 14). One can label this as only-one-defamer-pays theory.

I opine that this is the most dangerous part of the decision and I offer seven reasons:

First, this is a breeding ground for abuse. Essentially, several outlets can conspire against someone by conveying a third-party article without any prior fact-checking, and only one of them will be held liable. For bad faith press, the CCBH’s approach is a blessing since the odds are on their side – they will pay only once.

Second, I am not aware of any ECtHR case law supporting the CCBH’s theory. If such case law existed, the CCBH would have included it, as the court regularly quotes its Strasbourg-based big cousin. The only similar rule I can think of in comparative law is the first publication rule. This rule, as, for instance in the UK Defamation Act (s. 8), provides that statute of limitation starts with the first publication, regardless of any subsequent publications of the same statement. It applies only on the same person (or a proxy) publishing a materially same statement two of more times. If others disseminate (republish) the statement, they fall outside the rule’s scope (see here [p. 184] or here [p. 156-157]).

Third, each media outlet is a separate entity and each outlet decides according to their own editorial policy to disseminate others’ articles. It is their choice and, therefore, it must be their liability. ATV’s non-liability cannot be conditioned by RTRS’ liability.

Fourth, the concern for punishing journalists for merely transmitting others’ statements is justified, but a court needs to consider the whole context of the case. ATV did not convey the article as a part of their investigative journalism, nor did it try to depict different aspects about the alleged coup d’état. The media did not even try to get Kovačević’s opinion so it acted as nothing more than Informer’s proxy. This is a clear violation of the requirement for journalists to act “in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism” (Bladet Tromsø и Stensaas v. Norway, §§ 65-66)

Fifth, the appellant sued RTRS and ATV on the same day and had no way to know which process would conclude first. Applying the CCBH theory would impose an unreasonable burden on the defamed person.

Sixth, a judge needs to assess nature and degree of the defamation (see e.g. Bladet Tromsø и Stensaas v. Norway § 67). It is not the same, for instance, to convey a third party’s article indicating that person X was involved in a bar fist-fight and an article that X is plotting the coup. The latter has much more adverse effect on reputation.

Seventh, and final, the only-one-defamer-pays theory was introduced only by the CCBH. Neither the ordinary courts nor ATV argued in this vein. Therefore, the appellant did not have a chance to reply to this kind of an argument. In that manner, the CCBH acted as an ordinary court, i.e. a fourth instance court, which the CCBH firmly negates in its case-law relying on the ECtHR position (e.g. here, § 14).

Conclusion

This is a sad day for media protection on BaH because the CCBH did not offer the proper protection of the journalist against the smear campaign. The court introduced its theory of limited liability for defamation to protect the press, but as shown above, the theory is not persuasive. Its effects might even counteract the proclaimed aim by encouraging irresponsible outlets. Nevertheless, there is hope that the ECtHR will remedy Kovačević’s injustice upon his application. We shall see.

Igor Popović, is a senior assistant (International Law Department) Faculty of Law of University of Banja Luka.  He appeared for the appellant in this case