05. 04. 2011

Daily Danas, and "joint liability"

Belgrade, 05.04.2011. (B92) - Twenty days ago, the government of Great Britain, a country we perceive as nursery of modern democracy and freedom of the press, launched a public debate on the draft Defamation Bill. The bill's explanation says it is a product of the society's growing concern that British laws which regulate damages of honor and reputation have negative effect on the freedom of investigative journalism.

The crucial goal of the legislative reform, it is said , is to secure the balance which will enable protection of those whose honor and reputation have been harmed, while at the same time avoiding threats to free speech and media freedoms, as the foundation of democratic social order, through real or threatened suits.

Less than two years ago, when Serbian Government proposed amendments to our very own Law on Public Information, its motivation was not the growing concern that the regulation would have negative effect on media freedoms. Quite the contrary, the then minister of culture, in charge of media, claimed that the most significant problem in media sector is the lack or shortage of liability for public speech, while the violation of balance which worried his British colleagues he saw as "stimulative for media regulations in the way that suits the professionals and media users who seek quality".

Fortunately, the Constitutional Court found the amendments which increase liability and which the minister assessed as stimulative for media regulations considerably unconstitutional. But we are reminded that problems in the media sector were not definitely resolved solely by the Constitutional Court's decision on an almost daily basis by frequent court rulings against media. The latest example is the ruling by the Appellate Court in Belgrade which found daily newspaper Danas liable for disseminating information already published two days before by two other media outlets, and found it jointly liable with two other media outlets which it is in no way connected to.

Certain lawyers claim that such decision is not grounded in the law. They say that the Law on Public Information recognizes joint liability only within the bounds of the same media, when the media can be found liable jointly with its journalist and editor-in-chief, but that, otherwise, it does not recognize joint and several liability between two different media outlets, both of which published the same information independently of each other. They claim that such joint and several liability could come only from general provisions of the Law On Obligatory Relations, which envisages that one can be found liable for the same damage caused jointly by several persons, working independently of each other, but only if the shared liability of each of them individually cannot be established in the damage caused. In the media sphere, however, this shared liability can be established, for example, by taking into account the time of publishing or the edition in which the information was published, which, in the case of Danas, courts failed to take into account.

The verdict of the Appellate Court in Belgrade created a situation in which Danas is liable for the debt jointly with newspaper Glas Javnosti, a media outlet which is not published any longer and whose founder is erased from the registry, as well as Kurir-net, the previous publisher of Kurir daily newspaper, in the meantime also erased from the registry, thus remaining solely liable for the damage caused by original publishing of information in the other media, and only republished by this paper several days later.

The question remains why is Danas obliged to pay for the damage caused by Glas Javnosti? Furthermore, why is Danas obliged to pay for the damage caused by Kurir, the paper still being published, albeit formally by another publisher, with not even that publisher being held liable in any way. If such verdict is not legally incorrect, then we have a serious problem in our legislation. Then again, even if it is the result of wrongful implementation of the law, we still have a serious problem with the law which allows such errors to happen. Not to mention the negative effect these kind of verdicts have on the freedom of expression.

Back at the time of above-mentioned amendments to the Law on Public Information in 2009, adoption of the Serbian media strategy has been announced, aimed at answering the question what kind of media system we want and how we will, as a society, defend freedom of expression, having taken into account its significance for the democratic processes within the society. The fact that we still don't have such strategy shows that the political elite in Serbia does not see free speech and media freedoms as the foundation of democratic order. On the contrary, it perceives them as something that can wait and is not urgent in any way. Thus, the balance of the measure which, on one hand, increases the liability of media for real or assumed damage to the honor and reputation of individuals, while on the other hand delays resolution to urgent problems of media sector ad nauseam, remains deeply damaged to the cost of media freedoms and freedom of expression.

The state's unwillingness to timely and responsibly seek solutions for problems that media scene faces today results in not only Danas having to pay - and not only for its own mistakes, but for those of Glas Javnosti and Kurir as well - but in which all the citizens of Serbia, to the detriment of constitutionally guaranteed right to be fully and timely informed about issues of public significance, have to pay the price of the state's irresponsibility and inability to create legal and regulatory framework in which those rights would be exercised.

Veran Matić, Editor-in-Chief of B92