Futile Draft of the Media Law: Lawsuits Against Journalists Remain Possible

Since the enactment of the Media Law (NN 59/2004) on May 18, 2004, nearly twenty years have passed, and a working group has been formed to draft a new law that will regulate the area of public communication. It is undisputed that the existing legal solution is outdated and does not align with the changes that have been occurring in this area for years due to digitalization.

This topic has resurfaced in public when the Croatian Journalists’ Association (HND) sent a response to the Ministry of Culture and Media on July 19 regarding the working text of the Draft Media Law that the Ministry provided to the members of the working group on July 5 – deeming it unacceptable. In the response signed by HND President Hrvoje Zovko, published on HND’s website, many provisions are called into question.

Disclosure of Information Sources

Although the complete working text of the new media law, which has caused controversy between the profession and the Ministry, has not yet been published, it emerges from the public debate that, among other things, the obligation for journalists to disclose their sources of information is contentious. HND considers this obligation, as well as the entire working text, unacceptable as it would undermine media freedoms and the position of journalists and journalism.

Minister Nina Obuljen Koržinek states that the rationale for this provision is to shift responsibility from journalists to publishers and editors, thus protecting journalists, against whom a large number of lawsuits are currently being filed. It is evident that the law’s proposer intended, at least according to what has been presented to the public, to reformulate the existing provision under which a journalist is not obliged to disclose information sources, but is required to inform the editor-in-chief about the unnamed source of information before publication, as stipulated by the media statute, obliging the journalist to disclose the source of information to the editor-in-chief in any case.

However, the question arises as to how a journalist will be protected from lawsuits for damages initiated against them under the general provisions of the Law on Obligations regarding non-contractual liability for damages caused by fault, rather than under the Media Law. It is questionable whether a journalist in such a lawsuit could absolve themselves of guilt by stating that they disclosed their source of information to the editor-in-chief, who nonetheless approved the publication of the information, for which they ultimately bear responsibility. If the proposed solution becomes a legal provision, it remains to be seen how such a legal argument would be assessed by the court in litigation.

Lawsuits for Damages

In any case, even if a journalist could absolve themselves of direct responsibility in this way, they still face the danger that the publisher, as their employer, could seek recourse from them as their employee for those claims that the publisher is legally obliged to settle with third parties.

Therefore, if the intention was to protect journalists from lawsuits by third parties, it seems more purposeful to regulate in detail the lawsuits filed directly against journalists for damages within the Media Law itself as a special law that regulates the area of media disputes. Namely, the Media Law already regulates lawsuits filed against editors-in-chief for the publication of corrections as the primary form of reparation for damages caused by the publication of information and lawsuits for damages filed against publishers.

Thus, in lawsuits for damages, a publisher can be relieved of liability if the disputed information is based on accurate facts or on facts for which the author had reasonable grounds to believe they were accurate and took all necessary measures to verify their accuracy, and there was a justified public interest in the publication of that information, and if acted in good faith. The burden of proof in such cases lies with the publisher.

When the source of disputed information is secret, publishers whose journalists have not verified information obtained from their secret sources will find it difficult to successfully prove its accuracy, and merely invoking a secret source of information does not exculpate them from liability. On the other hand, publishers whose journalists have acted as required by law and the Code of Ethics of Croatian Journalists will be able to successfully prove the accuracy of their information.

Better Solution

Therefore, instead of requiring journalists to disclose their sources of information to editors-in-chief, it would be appropriate to extend this exculpatory reason to lawsuits that third parties file directly against journalists. This way, journalists could ‘defend’ themselves just as publishers currently do in media lawsuits for damages.

In conclusion, it is unlikely that the proposed solution will achieve the purpose proclaimed by the law’s proposer – the protection of journalists from lawsuits. Lawsuits against journalists are filed, and will continue to be filed, in accordance with the general provisions on damages – with the Law on Obligations – regardless of any obligation of journalists to disclose the source of information to the editor.