By: Domen Mezeg /Nova24tv
The Ljubljana District Court ruled to dismiss the lawsuit filed by former city councillor Stariha against TV host Tomašič. Stariha had accused Tomašič of making a “severe personal insult” on June 24th, 2020. However, Tomašič was exercising his right to freedom of speech when he responded in his show to specific controversial statements and a contentious photograph of Stariha. The former councillor’s post was presented in a way that made strong reactions inevitable. The court stated that Stariha is a relative public figure, meaning he must tolerate more criticism directed at him. As a result, the right to freedom of expression outweighed the right to honour and reputation.
In the show Kdo vam laže? on June 24th, 2020, TV host Boris Tomašič, during a conversation with longtime journalist and former director of Demokracija, Jože Biščak, stated: “Now, this leftist councillor, I will not hold back, you are a numbskull, a moron, Stariha, I am telling you, you are the biggest fool!”
This was interpreted by Stariha as an unprovoked attack. The lawsuit revolved around Tomašič’s reaction to a controversial statement by Stariha during rehearsals for a state celebration, where Stariha had written online, “folk/beef music, home guard gang.” Stariha argued that due to Tomašič’s position and influence, his statement led to severe online attacks and threats against him.
Furthermore, Stariha claimed that Tomašič’s comment aimed to degrade his honour and reputation. Tomašič, however, argued that his actions were not intentionally harmful and were protected by the right to free speech. Stariha’s statement had been first aired on Nova24TV before Tomašič commented on it.
Stariha provocatively states: “Unfortunately, they did not eliminate enough of them…”
This was a direct criticism and condemnation of the unacceptable remarks made by the city councillor. At the same time, a few days earlier (on June 16th, 2020), the plaintiff had posted on social media: “Unfortunately, they did not eliminate enough of them, which is why things are the way they are today. The fascism of the descendants of the Home Guard scum is on the rise. The disrespect for partisanship… The SDS party is leading a fascist pogrom against the Slovenian people… Are we going to remain silently compliant?” Alongside this post, Stariha attached a photograph of a mass grave with a skull.
According to Tomašič, the lawsuit is also unfounded due to the lack of elements of liability for damages. The defendant did nothing illegal, and their expression is protected by the right to freedom of speech. Additionally, Tomašič and Biščak discussed matters of public interest during the show, and the defendant was shocked by the plaintiff’s statement, which led to the contentious words being spoken in this context.
City councillor as a public figure: Freedom of expression takes precedence
The defendant’s expression was a permissible value judgment and opinion. Furthermore, the defendant is not a mouthpiece for any political party and does not engage in propaganda, nor was this a personally motivated attack or carried out under the instruction of a particular political faction. It was a response to the plaintiff’s controversial public statements. It should also be emphasised that Stariha is a public political figure, which means that in this case, the right to freedom of expression takes precedence.
Stariha liable for litigation costs and interest
No signs of illegal conduct can be found in the defendant’s actions, which makes the lawsuit baseless. Without the element of illegality, there is no proven causal link, fault, or damage. Consequently, the claim was dismissed, and the court ordered the plaintiff to cover the litigation costs, including statutory interest.
Court: Stariha incited violence and hatred
In the court’s opinion, the defendant’s statement made during the show is not problematic. Furthermore, it is not disputed that the plaintiff is the president of the local organisation of the Association of Fighters in the Savsko Naselje in Ljubljana and a Ljubljana city councillor for the List of Cyclists and Pedestrians. The court considered whether the defendant’s statement unlawfully infringed on the plaintiff’s personal rights. The court emphasised the importance of the right to freedom of expression (which may occasionally be limited) as a cornerstone of other rights and freedoms, and as such, an indispensable part of a functional democratic society.
However, it is crucial to ensure that this right does not infringe upon another person’s rights – here, we are speaking of the plaintiff’s right to dignity and good reputation. Since the plaintiff is seeking damages directly from the journalist, according to case law, such a claim is permissible only in cases of intentional harm, which the plaintiff must assert and prove. It cannot simply stem from the outcome of an action that may have turned out to be harmful, which, as the court found, the plaintiff did not assert. The court also ruled that Stariha is at least a relatively public figure and a politically active citizen.
As for Tomašič’s statement, the court considers it an insulting value judgment. Terms such as “numbskull”, “moron”, and “fool” are indeed offensive, according to the court’s findings, but that does not necessarily make the statement impermissible. The context in which the statement was made must be considered. The court found that the disputed statement was a reaction to the prior provocative behaviour of the plaintiff, who had, in both posts, acted entirely provocatively. The post featuring the photograph of a mass grave and a skull incited violence and hatred. It was accompanied by the statement that not enough Home Guards had been eliminated. The court also considered that Tomašič’s statement significantly contributed to a discussion of public interest. In this case, the defendant’s right to freedom of expression outweighed the plaintiff’s right to dignity and good reputation.
