Be Careful What You Say

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After several years of legal uncertainty and the recent implementation of a new Criminal Code, insult and slander could be considered offences again, raising concerns for the freedom of expression.

Current chaos

On the April 29th 2013, the Constitutional Court of Romania (CCR) stated a 2010 decision by the Supreme Court – whose members reached the conclusion that insult and slander should not be considered criminal offences – to be unconstitutional. Thus, the CCR has created a loophole for judges to dictate fines, even though magistrates cannot be forced to apply this decision as the new Criminal Code does not contain the two offences.

The current chaos has been building up since 2006, when the government of former prime minister, Călin Popescu-Tăriceanu, proposed a series of changes to the Criminal Code. Among these was repealing Articles 205 to 207, which incriminated insult and slander. Parliament approved the changes, but the situation became complicated a year later when the CCR declared the repeal unconstitutional. The Court’s judges showed that “the freedom of expression cannot be understood as an absolute right”; and there is no incompatibility between this and incriminating the two offences.

Parliament did nothing at the time to clarify the legislation, although it couldn’t do much as the Court’s decision should have been implemented automatically. “One cannot repeal the repeal,” as a member of the Court declared for the newspaper Gandul. Still, the Criminal Code remained unchanged and didn’t reflect this decision.

In order to bring uniformity to the courts, former general prosecutor Laura Codruţa Kövesi filed an appeal at the Supreme Court in 2010, claiming the two separate interpretations of the law were causing chaos. The Court’s decision was to not incriminate insult and slander, which appeared to seal the deal and was a relief for the Romanian media whose members have known political intimidation and attempts at censorship in recent years.

A new precedent

The new decision issued on Monday, however, creates a precedent that allows courts to interpret the law differently again. The management of this situation is the current responsibility of parliament, as it failed to find a solution in 2007. Also, parliament and the government are the only institutions that can decide to incriminate offences. Thus, the CCR’s decision needs this final validation to be implemented.

Even though 33 Council of Europe states punish insult and slander, the situation is different for Romania. The greatest damage that might be done through incriminating the two former offences, is people having to constantly second-guess what they can and can’t say in the public sphere. This is not to say insult and slander should not be punished when the damage to an innocent person’s reputation is significant, but it is to say that we are talking about a state where the law is still bent to please those in power.

There are known cases of employees in the media harassing and fabricating damaging stories about public figures, which needs to be stopped from infecting the Romanian public sphere and damaging the reputation of the media. However, incriminating insult and slander is not only a worry for these types of intuitions, but also for those pushing boundaries in investigating corrupt people in seats of power. When does a journalistic investigation into a corrupt politician end in insult or slander? When the law decides this to be the case, or when the journalist touches on a sensitive point?

This is the main problem and why parliament’s decision six years ago was seen as a victory for the freedom of the press. The question is whether the situation today is truly different from that in 2007, and abuses against the media are history; most Romanian journalists can confirm this is not the case.

On the other hand, Cristian Danilet, a former member of the Superior Council of Magistrates, who recently won an appeal against his removal, supported the Constitutional Court’s decision on his Facebook page and blog. According to Danilet, quoted by the newspaper Gandul, “The press might become more responsible from now on.” Danilet went on to say that this would lead to the press replacing personal attacks with factual arguments. The magistrate claimed that the Romanian public has witnessed severe damage brought to human “dignity, honour and reputation”, through the lack of criminal sanctions.

Theory vs. practice

Theory is the politicians’ and judges’ strong point; it is practice which kills ordinary Romanians. It is unarguable that in a democratic society, one person’s freedom ends where another person’s freedom begins. Article 57 of the Romanian Constitution says citizens must exercise their constitutional rights in good faith and cannot disrespect other people’s rights. As for the freedom of expression, article 30 (6) of the Constitution says: “Freedom of expression cannot damage a person’s dignity, honour, private life or the right to one’s image.” These regulations also appear in international pacts and conventions for human rights.

But where does punishing insult and slander end? Right now, the maximum punishment is a fine and a three-year criminal record. But what if a precedent arises – like the one on Monday – and someone is sentenced to prison?

Another question is how this will apply to the online environment, especially social media. As stated by the newspaper Catavencii, what happens if a teenager comments on a starlet’s Facebook page and calls her names? Will he or she be punished?

In a country such as Romania, the CCR’s decision cannot stand on its own as it will create even more chaos. There needs to be a clear framework and unmovable standards that define which offences are punishable by law and where online privacy ends. Is posting on a closed Facebook group considered slander? What about an email sent to more than one person? Citizens also need to understand how this will affect them personally, as this decision ultimately targets everyone.

Ioana Burtea is a writer with Europe & Me magazine. As a journalism graduate currently based in London, she studies creative writing and is carrying out research for her first non-fiction book. Ioana also worked as a reporter for Mediafax News Agency in Bucharest for almost four years, covering the Ministry of Administration and Interior.