ARTICLE 19 urges Croatia to decriminalise insult and defamation. We echo the concerns of the Croatian media community and civil society, who have noted the devastating effect of this legislation. The threat of criminal prosecution, often applied in conjunction with abusive civil defamation lawsuits, curbs journalism and stifles public debate. Decriminalisation should be coupled with a profound reform of current civil legislation, including measures to tackle strategic lawsuits against public participation (SLAPPs), and a change of approach to its implementation in court practice. Genuine concerns for protection of reputations should be counterbalanced with public interest considerations and should primarily be addressed through non-punitive measures.
The Criminal Code of Croatia penalises ‘insult’ (Article 147) and ‘intentional defamation’ (149). Although the scope of the latter crime was previously limited through an amendment to the Criminal Code, the intentional dissemination of a false claim that can damage ‘honour or reputation’ of another person remains a criminal offence. It is not subject to any exceptions, such as the defence of information disseminated in the public interest.
The existence of the defamation provision in the Criminal Code is not a theoretical problem. The provision is actively applied, including in cases against journalists, which is well-documented by Croatian civil society and the country’s association of journalists. The problem is further exacerbated by the appalling use of civil defamation provisions to curb journalistic work and dissemination of information of public interest. The number of SLAPPs in Croatia continues to be among the highest in the EU. A worrisome strategy of double persecution — opening a criminal defamation case against the journalist and simultaneously pressing civil defamation charges against his or her publisher — suffocates journalism in the country.
International standards on defamation
International human rights law recognises that free expression may be limited to protect individual reputation. However, defamation laws, like all restrictions, must be proportionate to the harm done and not go beyond what is necessary in the particular circumstances.
ARTICLE 19 asserts that any law criminalising defamation is, in and of itself, a violation of the right to freedom of expression. Not only are criminal defamation laws outmoded and unduly harsh, they are also unnecessary and disproportionate measures to protect the reputation of others. Criminal prosecution for defamation in response to a statement about a matter in the public interest is a particularly serious attack on freedom of expression. Application of criminal sanctions, or the threat of their application, produces a chilling effect on free flow of information and discourages journalists and other civil society actors from performing their essential public watchdog function in democratic society.
Relevant international and regional authorities have articulated compelling arguments against criminal defamation:
- In its General Comment No 34 on freedoms of opinion and expression, the UN Human Rights Committee recommended that States decriminalise defamation and ‘avoid excessively punitive measures and penalties’. The Human Rights Committee also added that ‘public interest in the matter of the criticism’ should be recognised as a legal defence. In addition to formulating the general standards on the issue, the Committee has also actively endorsed decriminalisation of defamation in its commentary on reform in concrete countries. For example, it welcomed decriminalisation of defamation and insult in North Macedonia as ‘steps in the right direction towards ensuring freedom of opinion and expression particularly of journalists and publishers’.
- The UN Special Rapporteur on Freedom of Opinion and Expression explicitly urged governments to: (a) repeal criminal defamation laws in favour of civil laws, (b) limit sanctions for defamation to ensure that they do not exert a chilling effect on freedom of opinion and expression and the right to information, and (c) prohibit government bodies and public authorities from bringing defamation suits with the explicit purpose of preventing criticism of the government. The Rapporteur further noted that the subjective character of many defamation laws, their overly broad scope and their application within criminal law have turned them into a powerful mechanism to stifle investigative journalism and silent criticism.
- For its part, the European Court of Human Rights (European Court) has repeatedly scrutinised the incompatibility of criminal sanctions for defamation with the principle of greater tolerance and openness to criticism that apply to public figures. In the landmark case Lingens v Austria, the European Court characterised criminal libel proceedings against a journalist as a measure that:
[A]mounted to a kind of censure which would be likely to discourage him from making criticisms of this kind again in the future … In the context of political debate such a sentence would be likely to deter journalists from contributing to public discussion of issues affecting the life of the community. By the same token a sanction such as this is liable to hamper the press in performing its task as purveyor of information and public watchdog.
- The Principles on Freedom of Expression and Protection of Defamation (Principles on Defamation), the consolidation of which was overseen by ARTICLE 19, further detail international standards and best practice on freedom of expression-compliant approaches to protecting reputations. The Principles stipulate:
All criminal defamation laws should be abolished without delay, even if they are seldom or never applied. They should be replaced, where necessary, with appropriate civil defamation laws. Steps should be taken, in those States that still have such defamation laws in place, to progressively implement this Principle.
Although civil defamation laws are certainly a better measure to protect an individual’s reputation than criminal penalties, they should also be drafted and enforced in a manner that does not discourage public debate. States must implement measures against abuse of civil defamation laws by governmental officials and politicians to stifle criticism, investigative journalism, or any other dissemination of information on matters of public interest.
In that sense, the mere falsehood of factual claims that form the basis for defamation lawsuits is not sufficient. As the Principles on Defamation address in detail, defendants in civil cases should benefit from a defence of reasonable publication so that even statements that are false will not attract liability where the circumstances otherwise justify publication. Importance of the right to freedom of expression is elevated with respect to matters of public concern and the right of the public to receive timely information relating to such matters. This principle was applied in the jurisprudence of the European Court on Human Rights, which held that punishing an overall balanced journalistic publication concerning a matter of public interest which contained certain false and defamatory statements breached the guarantee of freedom of expression.
Finally, best international practices favour resort, where appropriate, to alternative remedies of non-punitive nature. These may include a publication of a retraction, apology, or correction and the right of reply. These measures should generally be voluntary and should not infringe upon media freedoms, particularly upon editorial freedom and independence. Instead of curbing free flow of information and discouraging debate on issues of public interest, these measures present a better tailored response to an unjustified attack on one’s reputation, allowing to rectify, clarify or directly challenge the impugned falsehood of allegedly defamatory claims.
Insult
The European Court famously articulated that the right to freedom of expression ‘is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb’. International human rights law does not recognise ‘the right’ not to be offended and protects speech that can be subjectively perceived as ‘insulting’. It follows that criminalisation of insult can never be justified by protection of the rights of others.
In Lingens v Austria, cited above, the Court drew the line between assertions of fact and so-called ‘value judgments’, which are not susceptible of proof by their very nature. The term ‘insult’ usually refers to statements of opinion, which do not contain allegations of fact, and protects feelings rather than reputations. As such the penalisation of ‘insults’ infringes upon freedom of opinion itself. Unlike freedom of expression, the right to freedom of opinion is absolute and cannot be subject to any restrictions.
As the Principles on Defamation elaborate, some statements may, on the surface, appear to state facts but, because of the language or context, it would be unreasonable to understand them in this way. Rhetorical devices such as hyperbole, satire and jest are clear examples. It is thus necessary to define opinions for the purposes of defamation law in such a way as to ensure that the real, rather than merely the apparent, meaning is the operative one. Defamation laws of any kind cannot be used to punish non-factual ‘value judgments’, such as deliberate exaggerations or satiric expressions, regardless of whether they might be perceived as insulting or offensive.
Analysis of the Croatian law
The Croatian Criminal Code penalises defamation and insult.
The crime of defamation is framed in broad terms as the act of ‘disseminating a false factual claim, knowing that it is untrue, about another person which can damage their honour or reputation’. It is punishable by fines. Additionally, dissemination of a defamatory statement to a large audience, in particular ‘through the press, radio, television, computer system or network, or at a public gathering’, incurs elevated criminal responsibility.
The law blanketly criminalises all ‘false’ statements, without recognising the defence of reasonable publication. International standards on defamation hold that defendants should benefit from a defence of reasonable justification so that even statements which are false will not attract liability where the circumstances otherwise justify publication. In such cases, public interest in the impugned information should prevail. Croatian criminal law does not recognise the essential exception of public interest. In fact, it treats statements disseminated through mass media as a more dangerous crime and prescribes higher fines for that type of offense. This approach elevates the risk of prosecution for journalists and defies the essential defence of public interest.
Criminal defamation provisions are often applied in combination with civil lawsuits in Croatia. The high levels of SLAPPs in the country, particularly against journalists, exacerbate the issue by hindering the public watchdog function of the media and obstructing the right of the public to receive information of public interest. The double-burden of criminal prosecution and civil proceedings entangles journalists in lengthy and costly proceedings. The chilling effect that these measures produce on the right to freedom of expression render them manifestly ‘unnecessary’ in democratic society.
It must be emphasised that criminalisation of defamation as such is a disproportionate and ineffective measure to protect reputations of others. It constitutes an unjustified restriction of the right to freedom of expression. The criminal provisions should be scrapped in their entirety.
While it is recommended to swap criminal defamation for civil laws as a more proportionate measure to protect one’s reputation, the latter must also be subject to robust anti-SLAPP safeguards. In that regard, Croatia must ensure the effective transposition, in law and practice, of the EU Anti-SLAPP Directive. In particular, it is essential to ensure early dismissal for unfounded defamation claims and guarantee remedies against abusive proceedings.
Most importantly, priority should be given to non-pecuniary remedies to redress any real harm to reputation caused by defamatory statements. The right of correction or reply, as long as it respects editorial freedom, is capable of addressing the core of the defamation case: rectifying or clarifying factually incorrect information without restricting freedom of expression.
Under Croatian law, ‘insult’ is a separate crime, which is not defined in the criminal provision. It is also punishable by fines and is considered to be a more socially dangerous offense if it is committed with dissemination of the insult to a large audience. Unlike defamation, certain exemptions to criminal responsibility apply. In particular, the law recognises the public interest exception, performance of journalistic and artistic work and defence of another right.
Despite the existence of exemptions, criminalisation of insult as such is an unjustified measure. First, the criminal provision in question contains no definition of ‘insult’, which opens it to a multitude of interpretations and abuse. This renders the restriction to be unforeseeable and thus defies the element of ‘legality’.
Secondly, it pursues no legitimate aim recognised under international human rights law. Only factual statements and not statements of opinion can warrant protection under the aim of safeguarding one’s reputation. The values of pluralism and open democratic society demand tolerance of speech that may seem subjectively ‘shocking’, ‘offensive’ or ‘insulting’. It is essential that freedom of opinion is guaranteed in absolute terms.
Finally, it is beyond doubt that criminalisation of insult is an unnecessary and disproportionate measure. The Croatian legislator should repeal this provision and discontinue any cases instigated on its basis.
ARTICLE 19’s recommendations
- Croatia should urgently decriminalise defamation and insult.
- Croatia should conduct a comprehensive anti-SLAPP reform, starting from the effective implementation of the EU’s Anti-SLAPP Directive.
- Legitimate defamation concerns should be primarily addressed by non-punitive measures, including the rights to correction and reply, with due respect for editorial freedom and media independence.
This legal analysis was developed as part of the Media Freedom Rapid Response (MFRR) project, a Europe-wide mechanism which tracks, monitors and responds to violations of press and media freedom in EU Member States and candidate countries.
