CRIMINAL LAW, SLAPP LAWSUITS AND THE RIGHT TO BE FORGOTTEN: The Bermuda Triangle for the Shipwreck of Croatian Journalism

Had the proposed ‘Article 307.a of the Criminal Code’ on pacifying the media already been in effect, perhaps Filipović would still be a minister and Lovrinčević his advisor, and the public would know nothing about the messages mentioning AP or the details of a series of scandals.

In the midst of an action where the state is trying to prevent the publication of unpleasant information from sources close to investigative bodies, the Prime Minister swiftly dismissed Minister of Economy Davor Filipović and his special advisor Jurica Lovrinčević due to transcripts published by Nacional. Here, we will address the narrowing of the media space as this synergy between the Government and Nacional is merely an exception that confirms the rule about journalists who need to be silenced and calmed. And all legally. But how did the current witch hunt begin?

Believe it or not, the culprit is the Office of the European Public Prosecutor (EPPO), which is perceived as the most positive part of the (Croatian) judiciary and uncompromisingly exposes scandals involving the spending of European money with the highest state officials as protagonists. However, this institution is directly – albeit unintentionally – responsible for the current Government’s attempt to curtail the public’s right to information. Namely, it was precisely from the EPPO’s indictment that a spicy SMS correspondence between two friends and business associates emerged, in which they refer to ‘AP’. This, of course, concerns messages from the mobile phone of Josipa Pleslić (formerly Rimac) exchanged with Gabrijela Žalac.

The Dangers of Article 307.a

A few months later, the Government proposed changes to the Criminal Code. The primary focus is on combating domestic violence and violence against women, but, incidentally, a provision for pacifying the media sneaked in. The Government proposed the insertion of a new article (307.a) in the chapter on Violation of Procedural Secrecy, which reads:

‘A judicial officer or state official in a judicial body, police officer or official, accused person, lawyer, legal trainee, witness, expert, translator or interpreter who during a previous criminal proceeding that is considered non-public under the law unlawfully discloses the content of investigative or evidentiary actions, with the aim of making it publicly available, shall be punished by imprisonment for up to 3 years.’

However, journalists are not mentioned here, and the Government states in the explanation that ‘the perpetrators of this criminal offense cannot be journalists, nor other persons who unlawfully learn about the content of evidentiary actions.’ However, journalists, like everyone else, are already covered in the previous article of the existing Criminal Code, which also prescribes imprisonment for up to three years for anyone who ‘unlawfully discloses’ details from a criminal proceeding. Furthermore, journalists can also be punished as accomplices, thus being the accomplices of all the named state officials, officers, lawyers…

Personnel and Trend Exclusives

Lider is not in the category of media that will be among the first to be targeted by Article 307.a. In business journalism, we prefer exclusives based on data analysis and trend forecasting. We deliberately shy away from political-business-judicial personnel scandals, as in a market economy, every such piece of information must be paid for sooner or later, one way or another. This does not mean that we do not support this type of investigative journalism, and we are certainly against the introduction of the censorial ‘Article 307.a’, which should serve as a lightning rod against future exposures of the state criminal octopus. Because, had this provision been in effect since the beginning of Plenković’s mandates, it is questionable what the public would have learned about Janafa, the wind farm scandal, the scams involving EU funds (which led to the top of the relevant ministry and the Central Agency for Financing and Contracting of EU Programs and Projects), about the billion kuna damage in the gas scandal, about gas for a cent, about favoritism in hiring, about drunken outbursts and cover-ups of traffic accidents by local power brokers, about recent dubious investigative actions in the case of the traffic accident of the now former Minister of Defense, and even about the current extortion attempt.

Of course, in each of these scandals (and many others), journalists and publishers, even without ‘Article 307.a’, are at risk of so-called SLAPP lawsuits (strategic lawsuits against public participation), with which politically powerful individuals threaten large damages for ’emotional distress’ and defamation in an attempt to intimidate and pacify the media. I myself was the author of a text for which, despite its accuracy, the publisher had to pay compensation to a former politician.

The Right to be Forgotten and the Public Interest

However, not all pressures on the media come from the domestic environment. One of the new weapons is the European regulation on the right to be forgotten. Every now and then, Lider receives a request to remove claims from previously published texts from its portal. In one case, the Agency for the Protection of Personal Data intervened. Generally, Google is the first target for people wanting to polish their past, but interested parties can also request the removal of text directly from the publisher. Thus, the following situation occurs.

Z. K. requested the removal of texts mentioning that he was connected to company F., even though this was at the time the text was published. The ‘injured party’ claims through a lawyer that there is no longer a legitimate public interest. Lider disagrees and seeks an opinion from AZOP, waiting for a response for over a month.

What is at stake? Entrepreneurs and managers change jobs and employers throughout their careers, i.e., they close old companies and establish new ones. Does the ‘right to be forgotten’ apply to them? We published – in the ‘Companies and Careers’ section – only that Z. K. became a co-owner and director of company F. in 2021 and that he exited the ownership structure less than a year later, a few days before Fina submitted a request to open bankruptcy proceedings, which has since been completed. The company was deleted, and creditors were left short by 174,285.32 euros in claims, of which more than one hundred thousand was tax debt.

Therefore, the right to be forgotten would be a smoothing of the business biography for a manager who has been the director of company R. since last year, which had 430,000 euros in revenue in 2022 and reported a loss of 197,850 euros. We believe that such information is relevant for the business community, for all of Z. K.’s current and future partners.

Thus, we conclude that the legal disciplining of information sources (and threats to journalists with imprisonment), SLAPP lawsuits, and the abuse of the right to be forgotten are three key dangers to the freedom of (business) journalism.