Decriminalization of libel and insult

Decriminalization of criminal offenses of libel and insult to be achieved by forthcoming amendments to appropriate laws (the Criminal Code and the Law on Criminal Procedure), as announced by authorities, is certainly a good news for journalists, but it will not change anything.

This absurdity means that journalist will not be subjected to criminal procedure, but only to civil action proceedings, and that they will lose less of their time in courts, where they usually explain the technology of newspapers and publishing to ignorant parties, judges and claimants.

Decriminalization of these two offenses has been required by the European Union and Serbia will fulfill that requirement just like Croatia did recently. However, Croatia has found a way around this by introducing the criminal offense of "bringing shame" on someone, which is only another means to discipline those who are not obedient.

Legal practice in Serbia has shown that journalists are usually acquitted during criminal proceedings related to libel or insult – which are initiated by private lawsuits submitted by those who are the alleged victims of such libels or insults. Only a few of them have been sentenced to criminal penalties in the form of relatively mild fines (prison sentence has not been allowed for such crimes for a long time already).

The main problem lies somewhere else. Considering the previous legal practice, during criminal proceedings judges have usually made a much greater effort to verify facts and make well-founded verdicts in comparison to their colleagues in civil action courts. During recent years, and probably due to these facts – since there are many journalists who have been acquitted in criminal proceedings and sentenced to pay drastic fines in civil action proceedings – the number of alleged victims of libels or insults who have initiated criminal proceedings has been much lower than the number of those who have initiated only civil action proceedings demanding financial satisfaction. In general, our judges are uneducated when it comes to media laws. They are not informed about the fundamentals of the Law on Information or they interpret them incorrectly. They are especially ignorant of the legal practice of the International Court of Human Rights in Strasbourg which has annulled most of their verdicts. Their ignorance results in civil action verdicts that drastically punish journalists and their media: they do not know the difference between opinion and insult, and they are not aware that the definition of libel does not cover media reports about information contained in difficult-to-access police and judicial files on criminals, politicians and related individuals.

The decriminalization of libel and insult will not bring any good to our journalists. In fact, it will mean even more trouble for journalists, because their accusers will not be restrained by any previous criminal proceedings. In our legal practice, such criminal proceedings have rarely preceded civil action lawsuits, despite the fact that experts in criminal law have always advised to first establish the truth in criminal proceedings before any civil action processes.

The only way to end these problems would be to introduce the French tradition from the late 19^th century that all proceedings related to libel and insult – both in criminal and civil action processes – should be valued at one franc, instead of thousands of euros demanded by and awarded to those who are not true victims of libel or insult but instead are criminals or individuals who should be exposed to more critical opinions about their work and expenditure of taxpayers' money, as has been demonstrated by the verdicts passed by the court in Strasbourg.

Anything else would only be a means to destroy the media and discipline journalists.

Tatjana Tagirov

About the authors

MC Newsletter, August 12, 2011