Razumevanje svobode izražanja in svobode tiska : konceptualizacija ob sodnem primeru Grims proti Mladini (2016)

slovenian

2016

volume 52, issue 3/4

Univerza v Ljubljani, Pravna fakulteta

There is a right - under the umbrella of constitutionally guaranteed freedom of expression - to express sharp and strong criticism, even objectively offending and to publicly use attacking remarks regarding politicians, their behaviour, communications, ideas, personality or stance in general - and if such remarks do have substantial foundations. This can be performed within a supervisional and democratizational function which the civil society, press and the media have in a democratic society. Such legal philosophy of freedom of the press must be firmly and permanently exercised and defended by the courts. All newspapers and every type of newspaper must not be evaluated and regarded in the same manner, due to the fact there are vast differences among newspapers regarding their credibility, intellectual level and in consequence the characteristics of the so called average reader - of such a type of newspaper and of a particular newspaper at hand. One cannot separately evaluate the politicians as public figures-functionaries and as common (family) persons, except in a few cases of obvious and pressing exceptions where there is no substantial and reasonable connection between those two. When deciding cases of strong criticism of the politicians, courts must consider all characteristics and all of the particularities of the concrete case. The final judicial judgment is not supposed to give protection to the politicians against the sharpness of the criticism or to the readers against their own ignorance and thoughtlessness. To the contrary, courts must protect the communicative freedom of newspapers - against the excesses of the dominance of the politicians, of the political parties and against the ignorance and thoughtlessness of the readers. Courts must also avoid plain subscription as the argumentative technique when deciding how the communicative message (substance of a certain publication) of the newspaper could be perceived or understood by its average readers - they must instead concentrate on what the particular and possibly controversial message actually was and what it really meant according to real and proofable motivation of its author. Every judicial decision per se should be constructed to have the nature of a constitutional doctrine and conceptualized standard of the freedom of expression and press. Judicial decisions should be with the ambition of having the status and normative force of a legal norm. Courts should therefore restrain from only solving disputes in a pure instrumental manner and conceptually fragmented. They should meet the standard of conceptual predictability, putting it in a functional balance with all the previous precedents. Only such judicial technique can be defended as a genuine law-making process and can comply to the constitutional principle of the legal security. Constitutional law-making precedent in the case of Grims v. Mladina did not successfully fulfil this task.

04.10.2021