Journalists, media outlets and activists in Serbia are regularly subject to legal harassment for investigating corruption, exposing abuse of power, or merely for exercising their right to participate in decision making, including in decisions that directly impact their rights and livelihoods. Powerful individuals abuse the law to force their critics into time-consuming and costly legal proceedings in order to intimidate independent voices and evade public scrutiny. Commonly referred to as SLAPPs (Strategic Lawsuits Against Public Participation) are a growing, deeply distressing phenomenon worldwide. These vexatious lawsuits aim to dissuade journalists and activists from speaking out about vital issues of public importance as well as drain the target’s financial resources and distract them from their investigations. The American Bar Association (ABA) Center for Human Rights, ARTICLE 19, and the Independent Journalists’ Association of Serbia (NUNS) have released a report that examines how current Serbian laws and legal practices fail to prevent, or lend themselves to, the filing of SLAPPs. The report identified common patterns in multiple examples of cases brought against journalists and activists by public officials and other powerful individuals from 2010-2020.
Read the report in English here
Read the report in Serbian here
Implementation of legislation in courts remains challenging
Although Serbian legislation includes a number of defenses that can be used in defamation cases, courts often fail to consider these in practice. In the decision making, the courts often prioritise the claim about mental anguish expressed by the plaintiff even if the actual harm to their reputation is unsubstantiated. In addition, judges notoriously fail to apply broad protection of the right to freedom of expression approved in international standards.
Imbalance of powers before the law
Sued journalists and activists in Serbia are ill-equipped to defend themselves in SLAPP cases and do not have access to free legal aid. In addition, the Serbian legal framework lacks safeguards to prevent or discourage SLAPP lawsuits, such as early dismissals or procedural expediency.
Majority of vexatious lawsuits are brought by public officials
Public officials brings lawsuits against journalists, activists and even regular citizens for speaking out without any political cost to themselves. As demonstrated by some of the examples in the report even if they then abandon the lawsuit it has a draining impact on the defendants.
The report concludes with the following recommendations:
Changes in law
Serbian authorities should review and amend, as needed, the Media Law and the Law on Contracts and Torts to limit their use in SLAPP suits. In particular,
The provisions on defamation in the Media Law and the Law on Contracts and Torts should be reviewed to ensure protection is provided only for false statements of fact which cause substantial damage to plaintiff’s reputation. Protection of vague concepts, such as piousness or authenticity should be eliminated.
Provisions on remedies in defamation cases in the Law on Contracts and Torts should include some basic criteria for determining the amount of pecuniary compensations. Pecuniary awards that go beyond compensating for harm to reputation should be highly exceptional measures, to be applied only where the plaintiff or claimant has proven that the defendant acted with knowledge of the falsity of the statement and with the specific intention of causing harm to the plaintiff or claimant.
Pecuniary awards should never be disproportionate to the harm done and should take into account any non-pecuniary remedies such as the publication of an apology or the exercise of a right of reply, and the level of compensation awarded for other civil wrongs. Pecuniary awards also should take into account the actual financial capacity of the defendant.
The Law on Contracts and Torts should set a fixed ceiling of the level of compensation which may be awarded for non-material harm to reputation – that is, harm that cannot be quantified in monetary terms – but there should be no statutory minimum level of compensation. The maximum should be applied only in the most serious cases.
Changes in court practice and capacity
Efforts should be made to improve the capacity of the Serbian judiciary to apply international and regional standards on freedom of expression in defamation and SLAPP cases. Regular trainings should be provided and should reflect the evolving standards under the European Court case law. In particular,
Courts should interpret provisions of Article 29 of the Media Law broadly and should cover not only registered journalists but all others that regularly or professionally engage in the collection and dissemination of information to the public via any means of mass communication.
The practice where pecuniary damages in defamation cases are awarded on the basis of mere claims that the plaintiff suffered mental distress (under Article 200 of the Law on Contracts and Torts) should be eliminated. The harm to a person’s reputation must reach a certain threshold of significance before it can justify restricting freedom of expression; specifically, it must cause ‘serious harm’.
In their assessments of cases brought by public officials, politicians, and public figures, the courts should recognise that these individuals must have wider tolerance to criticism than ordinary citizens, since they are directly involved in matters of public concern.
Courts have an obligation to ensure that no one is liable under defamation law for the expression of an opinion. Courts should take into account all the circumstances of a statement, including the language and genre used, when assessing whether a statement is an opinion. Where it is obvious that the statement is understood by the audience to be made in a humorous, provocative, or satirical tone, it should be deemed to be an opinion.