Current issues in media criminal law

Project type: Creative Path to Practical Knowledge (PKP) – academic year 2016/17

Project title: Current issues in media criminal law

Project team:

• students: Jakob Ahačič, Barbara Bajda, Marko Balažic, Matevž Brus, Maja Grobelšek, Valentina Korbar, and Anže Kovač
• Main educational mentor and coordinator: Prof. Dr. Matjaž Ambrož
• Working mentors: Emil Zakonjšek (Zakonjšek and Zakonjšek Law Firm, Ltd.) and Špela Stare (Association of Journalists of Slovenia)
• Other educational mentor: Prof. Dr. Benjamin Flander (Faculty of Security Sciences, University of Maribor)

Financers:

The project aimed to answer some current questions in media criminal law. We focused on three content areas: criminal offenses against honor and reputation, hate speech, and disclosure of confidential information. What all of the offences in question have in common is that they contain certain abstract, open-ended concepts or legal standards whose meaning cannot be deduced from the law itself. Their content is revealed only through judicial practice, where judges in each case develop value criteria for assessment by weighing different constitutional rights, as well as moral and ethical rules and life experience. This makes it difficult to define the content of these criminal offenses with complete clarity and precision, and it is even more difficult to predict what the courts' decisions will be in specific cases. This sometimes poses a problem even for experienced lawyers, and even more so for journalists who are exposed to the risk of criminal proceedings in their work. During the project, we identified the criteria courts use to assess the criminal offenses in question. We attempted to define as precisely as possible the content of concepts such as "insult," "intent to disparage," "proving the truth," "an act committed in a manner that may endanger or disturb public order and peace," "public interest," etc., and in this way define as clearly as possible the scope of criminality of the criminal offenses in question. We have also prepared an overview of recent case law, which provides insight into the manner in which courts assess and argue when dealing with violations of honor and reputation. We have also included procedural law in our analysis, highlighting the procedural differences in handling criminal offenses and the difficulties faced by criminal investigators.

 With regard to criminal offenses against honor and reputation, we have also considered the appropriateness or suitability of these incriminations. For some time now, there have been public concerns about whether these criminal offenses are necessary at all, whether they might constitute an excessive interference with freedom of expression, and whether the right to honor and reputation could be adequately protected without the use of criminal law. We have examined alternative forms of protection of this asset through journalistic self-regulation. Based on all the data collected, we have concluded that the current regulation does not constitute an excessive restriction of press freedom and that alternative forms of protection cannot fully replace the criminal law protection of honor and reputation. However, it would make sense to narrow the scope of criminal liability somewhat and to formulate criminal offenses more clearly and precisely. Above all, courts should act more decisively in the preliminary examination of private lawsuits and immediately reject those that are clearly unfounded. This would prevent the abuse of proceedings to put pressure on journalists.

With regard to hate speech, the competent authorities are often criticized for interpreting it too narrowly and for not sanctioning hate speech severely enough. We have found that, given the wording of the criminal offense and its place in the Criminal Code, the courts' and prosecutors' interpretations are reasonable. At the same time, we believe that a tougher stance should be taken against all forms of hate speech, which could also be achieved by introducing misdemeanors.

The appropriateness of the criminal offense of disclosing classified information cannot be assessed at this stage, as the law has recently been amended, and it is not yet clear how the amendment will work in practice.

Current issues in media criminal law