Lawsuit:
Date 12.06.2020. An article entitled “Fiasco: We’re boasting that we’re a coronavirus free zone, and foreign tourists have no idea about it” was published on the INDEX.HR web portal, in which the defendant presented incorrect and untrue information that violated the rights and interests of the plaintiff.
In the article in question, in relation to the plaintiff, the defendant maliciously and perfidiously presents inaccurate and untrue allegations, all with the evident aim of manipulating the Croatian public space in order to create and then unfoundedly maintain a negative perception.
These are the following untrue and defamatory allegations of the defendant:
“One of the tasks of the CNTB should be to follow the European media and then correct misinformation, because in addition to the Irish, misinformation was also published in the Belgian media that their citizens cannot enter Croatia.”
“So, Croatia is promoted only on the German, Austrian, Hungarian, Czech, Slovak, Polish and Slovenian markets. Why didn’t they target the Swiss market and that of neighbouring countries as well? I don’t know why they aren’t targeting the Swiss, who are well-to-do guests and we are a car destination for them, or why the campaign isn’t being carried out in neighbouring countries such as Serbia and BiH, especially now that we will not get Americans. So, while Croatia is advertised in only 7 countries, Greece is sending a message to all foreign media that absolutely all tourists are welcome here.’’
2. The essence of the previously cited allegations of the defendant is reduced to presenting untruths and slander about the activities of the plaintiff in connection with the preparation of the tourist season in conditions determined by the consequences of the crisis caused by the COVID-19 virus. On top of that, the defendant offers an exclusively one-sided presentation of the situation without having previously officially checked any of the above with the plaintiff itself as the umbrella national tourist organisation in the Republic of Croatia.
Therefore, contrary to all the allegations of the defendant from this article, the plaintiff, in extremely unfavourable conditions, defined by the coronavirus crisis took all of the necessary measures to achieve the prerequisites for achieving the best possible tourist results in the summer and autumn months of 2020. Of course, and contrary to the defendant’s untrue allegations, the plaintiff’s activity is absolutely dedicated to presenting the Republic of Croatia as a tourist destination that is a safe destination in the pandemic situation around the world. In that sense, and contrary to Luženik’s allegations from the article in question, the plaintiff intensively promotes the Republic of Croatia on a global scale as a safe tourist destination, and such activity is not focused only on a number of European countries, as incorrectly stated by the defendant in the article. Namely, the plaintiff spends all the time on marketing campaigns and promotional announcements in 14 markets, not just 7 and this is incorrectly stated by the defendant in the article in question.
It is obvious that the defendant interprets the obligation to respect epidemiological measures by all social and economic entities in the Republic of Croatia, including the plaintiff, perfidiously, maliciously, but also extremely unprofessionally, since the defendant himself presents himself to the public as a tourism expert. The defendant interprets it as poor and unprofessional treatment in connection with the organisation of activities related to the preparation of this year’s tourist season.
In doing so, the defendant, obviously maliciously, neglects the fact that from the beginning of the pandemic, the plaintiff continuously and promptly informs the general public about the conditions of travel and stay in the Republic of Croatia, all in accordance with the applicable rules and recommendations of the National Staff, as well as through direct communication with its network of representative offices.
Finally, in accordance with the valid strategic documents, the plaintiff continuously monitors the media in key broadcasting markets, and communication with the same media takes place “ad hoc” whenever the plaintiff receives certain notifications about erroneous publications and needs for corrections, so the defendant’s allegations are incorrect and utterly untrue.
Following the above, it is obvious that the defendant, by publishing the previously cited untrue and defamatory allegations, grossly and severely violated the plaintiff’s character in terms of Article 19 of the Civil Obligations Act, which is reflected in the violation of reputation (something along the lines of slander/defamation).
Precisely for this reason, and due to the violation (slander or defamation), the plaintiff in this civil proceeding demands from the defendant adequate monetary satisfaction in the amount of 50,000.00 KN.
EVIDENCE: – as before;
The main reason why the plaintiff is raising this lawsuit and claim is the protection of its rights and interests due to untrue and incomplete reporting to the Croatian public by the defendant, which then ultimately imposes the need to correct previously emphasised information that is incorrectly published and misinterpreted in this article by the defendant.
The plaintiff points out that in the case of a public apology made by the defendant, done so in a manner that fully corresponds to the manner of publishing the disputed statements, i.e. in the same or equivalent place, it is ready to accept without the further continuation of this litigation.
I. The defendant is ordered to pay the plaintiff the amount of HRK 50,000.00 together with the corresponding statutory default interest rate from 04.08.2020 as the date of filing the lawsuit until payment at the rate of the average interest rate on loans granted for a period longer than one year to non-financial companies calculated for the reference period preceding the current half-year, increased by three percentage points, within 15 days under threat of enforcement.
II. The defendant is ordered to reimburse the plaintiff for the incurred litigation costs together with the corresponding statutory default interest running from the date of the first instance judgment until payment at the rate of the average interest rate on loans granted for more than one year to nonfinancial companies calculated for the previous reference period, increased by three percentage points, within 15 days under threat of enforcement.
Reply by Bradbury’s lawyer, Vanja Juric:
I. The Defendant authorised the lawyer Vanja Jurić from Zagreb, (Ulica grada Mainza 13) to represent him in this case, so the proposal is to deliver all documents [related to this case] to the address of the law office.
II. The defendant disputes the merits of the lawsuit entirely, as well as the [monetary] amount of the lawsuit, for the following reasons:
1. The defendant did not submit a request for the correction of the information to the publisher of the portal www.index.hr.
1.1. The defendant considers it undisputed that the information that is the subject of this lawsuit was published in the media – on the portal www.index.hr. Although the lawsuit was filed against the declarant – the defendant, and not against the publisher who published the disputed article/interview, the plaintiff, before filing a lawsuit in this case, should have sent a request to the publisher of the portal www.index.hr for a correction of that information.
1.2. The Law on Media stipulates that a person who has previously addressed the publisher with a request for the correction of information or a request for an apology, when a correction is not possible, has the right to file a lawsuit for non-pecuniary damage. Likewise, the same Law establishes a request for the correction of information as the primary way of compensating for any damage caused by publishing information in the media, while a lawsuit for non-pecuniary damage is only an ancillary means for violations that are particularly severe and cannot be “corrected” by the publication of any corrections or apologies.
1.3. In accordance with the identical principles established by the Law on Media, and the Law on Obligations, Art. 1099 and 1100 determine the ways of repairing non-pecuniary damage. The Law (abbreviated Croatian: ZOO) determines that non-pecuniary damage is primarily repaired “by the publishing of a judgment or correction, by withdrawing the statement by which the violation was committed or by some other means that can achieve the purpose achieved by fair monetary compensation.” The payment of fair monetary compensation is also prescribed by this Law only as a secondary way of repairing non-material damage, and only when “the severity of the injury and the circumstances of the case justify it”.
1.5. Because the plaintiff did not make the slightest effort to correct the allegedly inaccurate information or for the defendant or Index as the publisher to compensate them for the alleged damage in any of the ways provided by the Law as a primary means, the plaintiff was not authorised to file this claim for non-pecuniary damage. The plaintiff, by not filing a request for the correction of the information or the withdrawal of the statement, showed that no actual damage was caused to them.
2. Context
2.1. The disputed statements of the defendants were made in the midst of the first wave of the coronavirus pandemic, at the beginning of June, when the tourist season would already be underway in Croatia under normal circumstances. From March to June 2020 (and later), precisely because of the pandemic, Croatia experienced a steep decline in tourist arrivals and overnight stays, like most other countries, which posed a major problem for tourism workers, hoteliers, small renters, and ultimately for the budget of the Republic of Croatia, which has suffered and continues to suffer great losses.
2.2. The defendant is the author and publisher of the portal www.total-croatia-news.com, on which he publishes various [types of] content, with special emphasis placed on topics relating to tourism. The defendant is being treated in Croatia as one of the tourism experts, which is why, in this particular case, he was contacted by a journalist from the www.index.hr portal. In the aforementioned period, namely, all Croatian media reported on the situation regarding tourism, the activities of the Ministry of Tourism and the Croatian Tourist Board, all with the aim of initiating a public debate on these issues, and finding solutions to problems encountered by Croatian tourism.
2.3. During the same period, a number of inaccurate and chaotic pieces of information about the conditions of arrival in Croatia, the conditions for crossing the country’s borders and other important circumstances that tourists should have known were spread in Croatia, as well as in the countries from which tourists come. This was, after all, commented on by numerous tourism and communication experts.
EVIDENCE:
– Article “Minister of Tourism revealed three scenarios for this year’s season: It is possible to drop overnight stays by 90 percent”, Glas Istre, April 2, 2020.
– Article “Disaster on the horizon: Steep decline in tourist overnight stays – 94.8 percent fewer tourists came in May than last year”, www.net.hr, from 10.06.2020.
– Article “Croatian tourism is on its knees: The situation is uncertain, and the announcements do not promise yet: We are opening a hotel, but we have no reservations”, www.net.hr, from 01.06.2020.
– Article “We’re being stripped naked to the end! A country of missed opportunities with 314 tourist boards “, from April 10, 2020.
2.4. In addition to the above, on March 30, 2020, the plaintiff himself announced in his newsletter that “all marketing and PR activities in the [emitting/foreign] markets have been postponed.”
EVIDENCE:
– A printout of the plaintiff’s newsletter, dated 31 March 2020.
3. The disputed information is factually substantiated
3.1. The controversial article deals with the problematisation of the actions of the Ministry of Tourism and the Croatian Tourist Board, in the circumstances of the pandemic and the difficult challenges in which tourism found itself. The article, as well as the statements of the defendants (and other interlocutors) talks about the decline in the number of overnight stays and tourist arrivals, presents statistics to the public and compares the campaigns of other competing countries, in relation to Croatia’s promotion in foreign markets and its shortcomings.
3.2. Although not covered by the lawsuit, the defendant in a statement for the portal www.index.hr, very clearly explained the basis of his objections, in relation to the actions of the competent ministry and the prosecutor, stating that Croatia announced it would ”open its borders for 10 countries, this is an automatic message to everyone else that they are not welcome “, as the Irish Times wrote about the fact that their citizens could not come to Croatia, which is not true, but the Croatian Government created this confusion”, that same Irish Times [publication], after his intervention, changed that article, etc. Ultimately, the defendant presents his [value] judgments about the duties of the plaintiff and the Ministry of Tourism and expresses an opinion on what was wrong in their conduct and what should be improved.
3.3. The lawsuit includes two disputable – allegedly defamatory – pieces of information, although it is completely unclear from the lawsuit what the inaccuracy or defamatory nature of the defendant’s statements consists of. The defendant considers that the plaintiff does not distinguish between the concepts of value judgments and factual claims and that they do not understand the meaning of the concept of defamation.
3.4. The first piece of information from the defendant states that one of the CNTB’s tasks is to follow the European media and correct misinformation, since the Irish and Belgian media published information that their citizens could not come to Croatia, which was not true.
3.4.1. It is completely unclear to the defendant which part of the quoted information the plaintiff disputes. Does the plaintiff dispute the conclusion that the CNTB’s job is to follow the European media? Or that misinformation was published in the Irish and Belgian media? In both cases, since this is factually substantiated information, there can be no question of defamation or any other type of damage to the plaintiff’s reputation.
3.5. The second piece of information from the defendant refers to the enumeration of the markets in which Croatia, in the disputed period, advertised. After that, the defendant expressed the opinion that the prosecutor and the ministry should have “targeted” other countries, such as Switzerland, Serbia and Bosnia and Herzegovina, which are our neighbours and, due to their proximity, the most likely guests. At the end of that statement, the defendant draws a parallel with the campaign and communication of Greece, which is, in terms of tourism, our competitor country.
3.5.1. Here, too, it is unclear what the plaintiff considers defamation, since the plaintiff themselves issued a press release on June 1, 2020, stating that they were “conducting a large promotional campaign in seven European markets, in Slovenia, Austria, Germany, Hungary, the Czech Republic, Slovakia and Poland.”
EVIDENCE:
– The statement of the plaintiff dated 01.06.2020.
3.5.2. As for the second part of the disputed statement – does the plaintiff challenge the right of the defendant to bring a court to/on where Croatia should still advertise? Is it problematic to mention Switzerland as a country from which guests come to Croatia? It is also unclear which part of the defendant’s opinion is disputable, stating that the campaign must be aimed at both Serbia and Bosnia and Herzegovina, and why the mention of Greece as an example of good communication with tourists is disputable. The defendant, even with the best of intentions, does not understand why any of the cited allegations are being deemed to be incorrect, and especially defamatory.
EVIDENCE:
– An insight into the submitted documentation
– Hearing the defendant
– The examination of witness Krešimir Macan
– The examination of witness Zoran Pejović
3.6. All statements of the defendant that are disputable in this procedure were confirmed by another interlocutor of the Index portal, also an expert on tourism issues – Mr. Zoran Pejović. He stated that Croatia “does not work nearly enough on the promotion, in fact it does nothing”, that it seems to him that the promotion is done “only for internal needs” and that he came to such insights “through contacts with travel agencies from the EU / … / they hear very little about Croatia or hear nothing compared to [what they hear about] Portugal and Greece, which have strong campaigns. The promotion of Croatia in the world is going very, very poorly and that must be done much more strongly. “
EVIDENCE:
– An insight into the disputed article
4. The disputed information is not objectively suitable for the causing of damage
In accordance with the Law and the positions of the Croatian courts, in order for the court to award the plaintiff monetary (or other sort of) compensation, the information that is the subject of the dispute must be objectively suitable to cause damage. For all the reasons stated in the previous points of this statement, especially considering that these are factually based value judgments about the public action(s) taken by public authorities, the information that the plaintiff marked as disputable is not objectively suitable to cause damage, and especially not damage that would justify the verdict of fair monetary compensation.
5. Public interest
5.1. Tourism is one of the economic branches from which a significant number of Croatian citizens live. In addition, Croatia’s revenues from tourism reach as much as 25% of GDP, so there can be no doubt that the success of tourism and tourism as such is a matter of significant public interest.
5.2. Also, the plaintiff is a public authority, whose activities are financed with taxpayers’ money and which is responsible for the affairs and functioning of the tourist activities in Croatia. Therefore, any member of the public or the media has the right and duty to comment, criticise and problematise their public actions and all circumstances related to the performance of tasks delegated to them.
6. Assumptions of liability for damage
6.1. In proceedings of this type, the plaintiff is obliged to prove the cumulative existence of all presumptions of liability for damages, namely: the harm-doer, the harmful action, the damage, the link between the above and the illegality of the defendant in the proceedings.
The plaintiff did not, nor will he be able to prove these assumptions, since:
– The information in question is not objectively capable of causing damage to the plaintiff;
– The defendant is not a harm-doer, but the harm-doer, if there is one at all, is the portal that requested and published the plaintiff’s statements;
– Actions – the statements of the defendant do not represent a harmful/damage-causing action, given that it is information that is factually based and/or represents the value judgments of the defendant on a topic of public interest;
– The damage did not occur, which is especially evident from the fact that the plaintiff did not do anything in relation to the statements of the defendant to request a denial by which the disputed information would be publicly refused and citizens would be properly informed;
– There is no link between the harmful action (which it is not) and the alleged damage, given that in the disputed, period many media [publications/portals] and members of the Croatian public publicly discussed the problems regarding tourism and the insufficient activities of the prosecutors;
– The defendant’s conduct is not unlawful.
6.2. Given that the facts of this case are quite clear, the defendant at this stage will not go into more detail to clarify each of these items and refer to specific decisions of Croatian courts and the European Court of Human Rights, relating to freedom of expression and responsibility for opinion. However, the defendant draws the court’s attention to the plaintiff’s allegations that the defendant acted unlawfully, as such a possible finding of the court would be contrary to all existing standards of freedom of expression, especially when such expression relates to the work and activities of the public authorities. Making established judgments about the work of public authorities is not and cannot be illegal.
7. An attempt to retaliate against the defendant
7.1. The defendant considers that this lawsuit was not filed for damages that the plaintiff claims was caused to them, but for an attempt to retaliate against the defendant who continuously, due to the nature of his work, problematises the work of the Ministry of Tourism and the plaintiff.
7.2. The defendant finds it indicative that the plaintiff:
– Did not file a request for correction of the information, the removal of the disputed article or the withdrawal of the plaintiff’s statement, to which they were legally entitled;
– Did not file a lawsuit against the portal www.index.hr, although it was that portal that published statements that the plaintiff considers harmful;
– Did not file a lawsuit against another interlocutor of the Index portal, whose statements were also published in the disputed article, nor against other media and/or experts who publicly criticised the actions of the plaintiff.
7.3. The plaintiff, although they had a number of legal remedies at their disposal, did not take any measures/steps to correct/repair the alleged damage, but instead filed a lawsuit directly and personally against the defendant, for damages in the amount of as much as HRK 50,000.00. For this reason, the defendant considers that this proceeding was not initiated in order [for the plaintiff] to protect their reputation – given that the information itself was not objectively suitable to harm the plaintiff – but to compel the defendant, by bringing his existential and financial stability into question, to stop speaking publicly about the plaintiff. Given the provisions of the Civil Obligations Act, the defendant considers that the claim for fair monetary compensation in this case is incompatible with the legal purpose of awarding such compensation and that the claim, on this basis, should be rejected.
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Following the above, it is proposed to the titled/stated court to reject the plaintiff’s claim in its entirety, and to oblige the plaintiff to reimburse the defendant for the litigation costs caused.
The Index article in question is still online – you can read it here.
