Аppeals are being rejected with the explanation that “ the portal does not have passive legitimation” in the Primary Court Skopje 2 Skopje for cases of defamation and insult of which the one side is a journalist that works in the on-line media. According to this , judges practically do not admit the portals as a media. Where for another courts , as for example in Ohrid and Bitola, there is not a doubt whether the portals are media or not, so they act on lawsuits. The case law of this court as to on-line media is concerned has the same standards and principles as the other media, say former judges in the European Court of Human Rights in Strasbourg, Margarita Cana Nikolovska and Mirjana Lazarova- Trajkovska.
Milena Atanoska Manasieva- Platform for investigative journalism and analysis
The courts have different practice as to whether online media are means for public informatiоn or not when deciding in cases of defamation and insult. Some parts of the courts approve the portals as a media, some not.
The difference in recognition or non-recognition may result in a defamation and insult claim. Decriminalization of defamation and insult did not solve the problem, but created a new one. These legal nebulousness also use journalists themselves and portals owners to try to avoid responsibility for defamation and insult.
The Platform for investigative journalism and analysis has come to at least eight verdicts pointing out that in the last two years, lawsuits in the Primary Court Skopje 2 Skopje for cases of defamation and insult in which the one side is a journalist working in online medium, are being rejected with the explanation that the portal do not have” passive identity card”. The judges practically do not recognize portals as media. With this new trend, a large number of media are delegitimized in Macedonia.
According to data of AJM( Association of Journalists of Macedonia), defamation and insult lawsuits to the journalists and media have been reduced after the defamation and insult are decriminalized. Last year there were 39 cases, in 2016 there were 40, which is much less than 2012 when 330 lawsuits were registered. It is commented that generally the trend is that there are less cases of defamation and insult against the journalists, thus defamation and insult are less used as an instrument for pressure against the journalists and the media. It is pointed out that half of the cases which are there in the moment are journalist against journalist, which show that it has to be worked on solidarity among the colleagues.
One of the judgments for defamation where the court rejected a defamation lawsuit because it found that web portal is not a medium is the judgment” P5-53/15” of the Primary Court 2 in Skopje. Owner of online medium that published text with topic” Is this ambassadorial paramour couple?” The plaintiff asked for 10.000 euros recompense, but the Court rejected the lawsuit because of two reasons- the first that it could not be proved if the accused is the author of the text and, secondly is that the web portal “is not medium with clear editorial structure” in fact. In the explanation of the verdict reads:
The portal, ie the internet web page as an electronic publication was medium according to Article 2 paragraph 1 and Article 3 from the Media Law(Official Gazette No. 184/13) until the entry into force of the amendments from 23 January, 2014, when the same electronic publications were deleted as such. With reference to that the portal is not a medium and it has neither editorial policy nor editor-in-chief. This means that regardless of the portal M.S is appointed as editor-in-chief, at the time of publication of the text in question, he could not have this capacity in accordance to Law on Amendments to the Law of the Media, and for this reasons the defendant can not be passively legitimized in this procedure nor in the capacity of the editor-in-chief of the portal.
This new case law has been confirmed by several lawyers as well as by the Association of Journalists of Macedonia (AJM).
“The dismissal of the lawsuits by the Skopje Civil Court arises from the amendments of Media Law of 2014, where electronic publication have been deleted and they are not means of public information, such as traditional media as press, television, radio,” says the lawyer Ivan Breshkovski.
Danger for journalists-they can take responsibility for defamation as a legal person According to him, the courts following that law, think that internet portals do not publish content that is subject to editorial policy, and hence they can not be liable for defamation and insult. “Expertly expression, the courts think that portals are not passively legitimized, and with this explanation they reject the lawsuits. They do not recognize them as media, and with that they do not take responsibility for defamation and insult. When it comes to online media, all lawsuits are rejected,” explains Breshkovski. And from the Association of Journalists of Macedonia,we have confirmed this case law characteristic for the Primary Court Skopje 2. They consider it as a negative moment in the processes of defamation and insult. The attitude of the Association of Journalists of Macedonia is that in this way, the Court, the journalists, editors and everyone who work in online media place them in disadvantaged position because in that way the potential material damage can be much more that the Law provides. Breshkovski explains that there is a danger if one determines who wrote the text on the page and he is responsible as a natural person, not as a journalist “The Law on Civil Liability for defamation and insult has determined how much the fine can be assigned to a journalist, as an editor, and to a medium, that is 2.000, 10.000, 15.000 euros. The Court is not guided by that and because the journalist is considered as a natural person, the fine can be much bigger,” he says. Our fellow citizens point out that this case law is not in accordance to European Court of Human Rights, and they think that the Article 11 from the Law on Civil Liability for defamation and insult is not respected by the Court.
“The Court, for example, has never made a problem for journalists that come from newspapers or printed media, and until December 2014 they were not mentioned. There was never doubt whether they are journalists or the press is not a medium. Now someone disputes media’s legitimacy,” says Dragan Sekulovski from AJM.
Two former judges from the European Court of Human Rights in Strasbourg declared us that this non-recognition of internet media by certain judges is not good. The judge Margarita Caca Nikolovska believes that the freedom of expression is connected to more subjects that can be expressed freely, and one of them are the people that pick up and carry information. “I do not understand where to draw the conclusion that the online media are not media and that they are not subject to the right to freedom of expression,” says Nikolovska. She believes that there should be no distinction whether the person that picks up and broadcast information is from a written, web-based media or he carry information in some other way.
“It is absolutely not important because that person has the right of freedom of expression in accordance to Article 10 from European Convention on Human Rights. Article 10 does not say that journalists who are reporters or journalists who write or are some other kind of journalists. This case law carries the dangers in a way that the right to freedom of expression on internet media is not respected,” says Nikolovska.
The judge Mirjana Lazarova- Trajkovska explains that the case law of the European Court of Human Rights regarding the internet media, has the same standards and principles as for the other media. “Since insult and slander are connected with right of privacy, that means that national Courts must be guided by so called tripartite text of the European Court of Human Rights, which presuppose them to have a legitimate aim for the legal framework and whether it was necessary to intervene in a democratic society,” believes Lazarova Trajkovska. The former judge in the Court in Strasbourg, explains that when it comes to defamation and insult, this court takes into account national laws and how this issue is regulated by national laws. According to her, the fact that certain category of media is not covered by the legislature as in this case, can be a reason to initiate procedures for amending the legislation. She points out that the courts, however, using the practice of the Court in Strasbourg, by analogy, should apply the same standards and principles to the internet media.
“They are media that transmit information and often information spreads much more quickly and the scope of control of pronounced defamation is much more difficult than other media. European Convention is a source of right and she creates obligations to our country that national courts must respect,” says Lazarova Trajkovska.
Last year in Macedonia, 18 attacks were reported to journalists of which 13 physical and verbal attacks, while others are insults, interference in work and destruction of property. These numbers were presented by AJM in the The Report on the Freedom of the Media and the Security of Journalists in Macedonia for 2017.
No name was mentioned, but the plaintiff was mistakenly recognized
If we analyze the court verdicts of other courts in this country, we can notice that they make different decisions, unlike the judges in Primary Court Skopje 2. Several verdicts from Ohrid and Bitola say that when it comes to a lawsuit where one of the parties is a journalist from internet-media, they recognize it as a means of public information.
Such is the example with a first instance verdict issued in the Primary Court in Ohrid, which recognizes internet portals as media. The case relates to texts published in 2012 and 2013 and the verdict on the website of the court announcement system sud.mk was set in March last year. With the verdict, the court fined a journalist form website with a fine around 4,,000 euros, although the plaintiff claimed 10.000 euros.
This is a part of the explanation of the verdict:
In the electronic edition of the website, they published text in which lies and insults were reported, referring to the plaintiff that it was “scandalous” and had “tyrannical manners” with which they intended for the plaintiff to be downgraded and humiliated, and with which he was hurt, his honor and reputation and professional career as a university professor and chairman of a branch of a political party, and the defendants knew and were obliged to know they bring out facts that are untrue.
In the part of his defense, the defendant journalist stated that the website is actually a blog. However, the judge in the verdict stated the following: “ The court appreciated the allegations of the firs verdict that: the electronic media was actually not a portal, but was a blog portal that anyone could open, and yet the Court did not accept that kind of allegations when deciding. On the other hand, in accordance with Article 6 paragraph 3 of the Law on Civil Liability for Defamation and Insult, the shape of the media is not crucial, but the circumstance for it to shape editorially. This verdict is not enforceable.
The lawyer that leads this case, Lazar Sandev, says that is nebulous that the legal entity that has published it and the journalist, the court fined her with 250,000 denars solidly.
“According to the law, it can not be so, because it is said that” he who makes a slander, not those who make a slander”. It must be determined who by what actions he has undertaken, not all can be blamed together. The verdict is complained, but a new judge took over, so we will see what will happen,” Sandev says.
The Court in Strasbourg recognizes online media
What dangers do the decisions of the courts that do not recognize online media? Does this offend the journalists and the editors that work in portals? Many say yes.
“Of course it is an insult for the journalists and the editors. Journalists are encouraged to write what they want and in reality, through an internet portal you can inflict to anyone’s honor and reputation no matter if he is a physical or a legal entity- lawyer,” Breshkovski says, who emphasize that this case law is discriminatory because the personal and civil rights of the injured parties are not sufficiently protected.
Why don’t the judges recognize the internet media as a means for public information, we asked in the Primary Court Skopje 2 Skopje also. They responded that in terms of our question, the court view- point is irrelevant for reasons that the court judges and establish its decisions on the basis of the Constitution, laws and international agreements ratified in accordance with Constitution:
In the procedures for determining civil liability for insult and defamation and compensation of damages, the Court applies the positive legislation in this area, especially the provisions from the Law on Civil Liability for Insult and Defamation, Law on Media, as the provisions form Law on Amending to Law on Media. Namely, the legal provisions are in accordance with Constitution of the Republic of Macedonia and in all of them discrimination of any kind as regards to their application and validity to any natural and physical entity, regardless of whether it is a journalist, editor or a media, is eliminated.
The lawyer Breshkovski adds that the national courts should consider the decisions of the self-regulating bodies of the media, as the Council of Honor of AJM and the Council of Ethics in the media.
“The have never disputed that internet media are not media,” he says.
Lawsuits toward journalists have decreased
The lawyer Breshkovski says that he advocates the side that the portals are not means for public information. He says that is their defense when they have a case with portal, with no exception.
“The judges mainly reject the lawsuits because the owners of the internet portals do not have passive legitimization, i.e they do not represent means of public information and because of that they can not take responsibility as provided in the Law. Since the amendments came into force in 2014, we have had about 50 of such cases,” Sandev says.
The portal” Libertas” have had ten lawsuits for defamation and insult in the last three years. The main and responsible editor, Aco Kabranov, says that there are two unsolved, while the others are rejected by the Court as unfounded.
“It is true that some judges reject the subjects with the explanation that the portals are not media by the Law. The cases in which “Libertas” is sued, the judges did not behave according to them, i.e they did not use the fact that we are not media by law,” Kabranov says.
He adds that because of the Law, the portals are not entered as a media, and the journalists do not have a status of journalists.
Kabranov assumes that with the lawsuits, pressure-intimidation is being made for journalists not to write about certain themes.
“That is done not only by the politicians and businessman, but colleagues from our, journalists’ fellowship,” Kabranov says.
The lawyer Sandev also says that lawsuits towards journalists are being decreased in the last two- three years. Now they have 11 active subjects, while they had hundreds in the past.
The text is made within the framework of the project “Media Reform Observatory”, implemented by the Foundation for Internet and Society Metamorphosis, “Agora” Center for Promoting Civil Values and the Platform for Investigative Journalism and Analyzes – PINA, with the financial support of the “Foundation Open” Society – Macedonia “. The content of the text is the sole responsibility of the authors and can in no way be considered to reflect the views of the “Open Society Foundation – Macedonia”.