The Theodosius Code published around 438, by Theodosius II, is an extraor- dinary legal source which serves to follow the development of defamation, today known as slender or libel as well. The term defamation itself labels the situation in which a person gained a bad reputation which automatically meant loss of honor and reputation in society. This term has differing social connotations in various pe- riods of human history. In the Middle Ages, in the former communist countries and in religious circles, it designates something well known to us from the phrases “so- cially or morally and politically inadequate” (excommunicated), with all the related consequences. Infamy or disruption of credibility of a person.
But at the time of the passing of the Theodosian Code, we may trace the sources of defamation as a criminal offense. At that time, any person who wanted to accuse someone of a crime, was obliged to report it to the court, to give a written statement under oath and to directly accuse a person of a crime committed. The court or the emperor, following an initial investigation, imprisoned both the plaintiff and the de- fendant and held a trial within one month. If the plaintiff proved what he had stat- ed, he acquired fame and emperor’s reward, and the defendant a deserved punish- ment. But if the plaintiff din not manage to prove his accusations, the defendant was released and the plaintiff was given a punishment he had wished for the defendant. That is how approximately functioned criminal prosecution of that time, at least in part. I was not interested that much in the whole system of criminal prosecution de- scribed in detail in the Code, but more in the meaning of the notion of defamation. The notion of that time implied all statements, allegations and papers (even secret papers) in which a person was accused of a crime, not before the court of the em- peror, but in public, at home or at any other place outside the system of power. As if the authorities wanted to establish a system in which either you accused someone in court or remained silent for all times (or to put it in today’s language “you are ei- ther the informant or you keep silent”). The whole system resembles the entry into marriage in church (and even civil marriages) in which a priest or a registrar says a magic formula “If someone has something against or is aware of something against these two people entering into marriage, let him speak know or be silent forever”.
Here practically a little wisdom leads you to the difference which was later expressed in terminology of common law between slander (defamation presented
in private or closed circle) and libel (defamation presented in public) because the term libel comes from the Latin term libellis, which designated a writing or a book. At its beginning the book IX of the Theodosian Code (Pharr, 2001) contains different criminal offences and criminal procedure of that time. Having presented various criminal material and procedural rules, Chapter 1, paragraph 4 of the Book IX contains a proclamation by Emperor Constantine to all provincial governors, which reads as follows:
“If there is any person of any position, rank, or dignity whatever who believes that he is able to prove anything truthfully and clearly against any judge, count, or any of My retainers or palatines, in that any of those persons has committed some act which appears to have been done without integrity and justice, let him approach Me and appeal to Me unafraid and secure. I Myself will hear everything; I Myself will conduct an investigation; and if the charge should be proved, I Myself will avenge Myself. Let him speak with safety, and let him speak with a clear conscience. If he should prove the case, as I have said, I Myself will avenge Myself on that person who has deceived Me up to this time with feigned integrity. The person, moreover, who has revealed and proved the offence I will enrich with honors as well as with ma- terial rewards. Thus may the Highest Divinity always be propitious to Me and keep Me unharmed, as I hope, with the State most happy and flourishing”
Posted on the fifteenth day before the kalendas of October at Nicomedia in the year of the consulship of Paulinus and Julianus – September 17, 325.
In Chapter 39 of the Book IX, entitled “For Malicious Accusers” or “ For Defam- atory Accusers” (De Calumniatoribus)9, the following provisions are listed:
“Title 39: Malicious Accusers (De Calumniatoribus)
1. Emperors Grtian, Valentinian, and Theodosius Augustuses to Hellebicus Count and Master of Both Branches of the Military Service.
There is no reason why the punishment of a manifestly malicious accuser should be deferred. For We do not permit that accusations shall be repeatedly re- newed if they could not stand at the first action nor the innocence and security of another person who is guilt of crime shall be terrorized by further suit.
2. The same Augustuses to Menander, Vicar of Asia.
Included in Our constitutions and those of Our fathers is the provision that a person who has presumed to bring an accusation under the name of another shall be classed as an informer. Therefore, the penalty of deportation shall be visited upon his very calumnious head and his person shall be rendered infamous by the judgment that his accusation was unfounded. Thus hereafter each and every one shall know that it is not permitted to disturb the minds of the Emperors in connec- tion with the matter which cannot be proved.
3. Emperors Arcadius and Honorius Augustuses to Victorious, Proconsul of Africa.
9 As a reaction to the monopoly of printing house and against the state censorship of texts, at the time
before and after the French revolution, journalists accepted for themselves the terms “columnists” or “defamators”, which are used colloquially even today.
We do not permit innocent persons to be ruined by the attacks of crafty men under the pretext of false criminal accusations. If any persons should attempt such attacks, they shall know that the severity of the law will overwhelm them for the commission of such crimes.” (Pharr 2001, p. 255)
Chapter 34 of the same Book IX of the Code is entitled “Defamatory Writings” (De Famosis Libellis). This Chapter states:
“Title 34: Defamatory writings (De Famosis Libellis)
1. If at any time defamatory writings should be found, those persons about whose deeds or names they contain anything shall suffer no calumny therefor, but rather, the author of the writing shall be sought, and when he is found, he shall be compelled with all severity to prove those statements which he believed should be made public. He shall not, however, be released from punishment, even if he should prove anything.
2. Although there are kept in your office and in that of the vicar copies of de- famatory writings which were presented in Africa, still you shall allow those per- sons whose names they contain to enjoy full security and freedom from fear; you shall admonish them only that they hasten to be far removed, not only from every crime, but also from any apparent suspicion of crime. For a person who has the confidence to make accusations must prove his charges and not conceal what he knows, since he will thus be worthy of commendation and will deservedly attain public praise.
3. Just as indulgence must be granted to accusers if they wish to prosecute any person in court, so no credence must be given to defamatory writings, nor must such writings be referred to Our Wisdom, since it is best that the aforesaid defama- tory writings, for which no authors are named, should be destroyed at once by fire. 4. A document of defamatory writing which lacks the name of the accuser must not be investigated at all but must be destroyed completely. For if a person has confidence in the prosecution of his accusation, he must call into court the life of another by an open charge rather than by an insidious writing.
5. Our glorious father provided that writings which are called defamatory shall be destroyed, if possible. He ordered also that such writings shall not be admitted to his own cognizance or to public cognizance. Therefore, neither the life nor the rank of any person shall be shattered and shaken by such devices, for We decree that all such defamatory writings shall be burned.
6. No person certainly shall suffer calumny from defamatory writings which have no place either before Me or in the courts. For a person is considered innocent who lacks an accuser, although he may not lack an enemy.
7. The name of defamatory writings is infamous, and if any person should sup- pose that they should be collected or read and should not immediately consume such papers with fire, he shall know that he will be subject to a capital sentence. Certainly if any person has concern for his own duty and the public safety, he shall declare his own name, and he shall proclaim from his own lips those things which he supposed should be prosecuted through a defamatory document. Thus he shall
approach the courts free from any fear, knowing that if his assertions are supported by proof of their truth, he will obtain great praise and reward from Our Clemency.
8. Very strong protection against calumny has previously been provided. No person, therefore, shall fear calumny. Indeed, an attestation which assails the head of another person contrary to the order of law shall be suppressed by Our laws and become void. The madness of defamatory writings shall perish, as We have often decreed. (Etc).
9. If any person should unwittingly come upon a defamatory writing, either at home or in a public place or in any place whatsoever, he shall tear it to pieces before another finds it: he shall tell no person what he has found. Finally, if he is so curi- ous as to read it, he shall report to no one what he learned in reading it. For if any person should report what he has found, he shall certainly himself be held guilty by law, unless he should betray the author, and he shall not escape the punishment that is established for such crimes, if he should be shown to have reported to any- one what he has read.
10. All those person who by means of defamatory writings hurl against their enemies some poisonous weapon, so to speak, and those who do not tear in pieces immediately or burn in flames writings whose slanderous contents they learned by shameless reading, or those who do not betray the reader if they know him, shall dread the avenging sword upon their own necks” (Pharr, 2001:249-250).
It is possible to dispute, in historical terms, the correctness of the names of em- perors issuing proclamations or the years of their publication. For example, Chap- ter 1, paragraph 4 uses a proclamation by Demetrius (historically known as Oc- tavian August brother of Cleopatra of Egypt), who following the death of his sister (who killed her husband Mark Anthony and herself with poisonous snakes) tried to keep the empire and quell the uprisings in Africa. The entire context was probably used at the time of Constantine to quell other uprisings against the emperor and for some current political aims. It is beyond doubt that it was supported by Theo- dosius II. But that historical context is of no importance to us now. It is important to comprehend the original meaning of defamation, infamy and libel. All of these meant accusation of another person, not before courts or the emperor, but before the circle of friends, at home or in public. Orally or in writing. Publicly or secretly.10
Over the centuries, many things changed: organization of power, introduction of public prosecutors, independent judiciary, specific definition of defamation as a criminal offence in different criminal codes etc. Furthermore, one should take into account the appearance of printing houses and newspapers, development of radio, television, the Internet and other mass communication instruments (because it is them which are often mentioned in this context) or in short other types of today’s “libellis”. That certainly often leads to the change of context and of understanding of the concepts of “accuser” (defamatory, informer) and the “accused” (defamed).
10 Those persons certainly had their justification for production of such “secret writings”. The most
common justification then was “how to accuse a murderer who is in power; how to accuse a thief when he is in power; how to accuse a violent person when he is in power”… etc.
tained after so many centuries, much of the meaning of the time they appeared in. That is particularly relevant today, when there are efforts to “decriminalize defamation” (whatever is implied under that notion) in the domestic legislation. Therefore it would be beneficial to make a tablet of individuals owning media in all of our countries so that we may ask ourselves “what we are talking about here”. Un- til that time, it is recommendable to read again the Theodosian Code. What we may find out there, may be surprising. At least in relation to the so-called informants.
It is important for us to remember that the notion of defamation implied accu- sation of another person for the crime committed, not before courts and authorities, but in public or before other people, even including the retelling of the previously read defamatory writing. Non-reporting of committed crimes to the authorities was an act punishable by law. Because if the crime was not reported, authorities were not aware of it, and if the crime was debated in public, all will accuse the authori- ties for not punishing something they were not aware of. Generally this is the idea behind the maxim “accuse before the courts or be silent”.
Over the centuries different things were considered defamation, mainly spo- ken but untrue words (irrespective of the fact whether it was about criminal of- fences or not). It was further expanded to a special sphere today called the right to privacy, protected independently of the “truthfulness” of the disclosed information. To understand all of this, one must have in mind that adultery, immorality etc., in those ancient times were crimes (although in a large number of countries today there are not).
That is why I believe that today (although not in full) the journalist profession is partly a victim of non-clarified legal notions and different concepts in various countries. The Internet time irresistibly resembles the time of invention of the first printing machines (the time of abrupt expansion of the public circle), but today we lack sufficiently wise or courageous lawyers to undertake an initiative to define certain basic rules in this area. Laws, conventions, norms are abundant, but it is obvious that these are only compromises made by people who do not know the or- igins. Therefore I am of the opinion that there is a need to sit together and consider the entire regulation in this area and that the period of the 14th and 15th centuries
provides abundance of materials. That tradition is much better preserved in the common law world than in legal solutions of the continental Europe.
The rules of unfair competition are ever more frequently applied to the so- called defamation compensation. Earlier it was a privilege of traders only. It is true that any person, similarly to a trader, has a problem with subsistence if his repu- tation and honor are damaged, but solutions in this sphere are not always legally consequent and they are often ridiculous (particularly when applied before courts in practice).11
Conclusion
The criminal offence of defamation used to protect the value of “human repu- tation, honor and dignity”. Does it mean that the current tendency (in some Balkan countries) of decriminalization of defamation imply that that value does not exist anymore and that if “some structure” lost its reputation and honor, it must apply to all people in the state? Twenty years ago in the socialist Yugoslavia it was a scandal if an official “spent too much on representation” or if a state official was taken a photo of while hunting. Today it is not a scandal if someone writes that 40 million Euro or more have been stolen. Nearly 20 years ago in the communist world there was a real fight for freedom of thought, fight against the so-called verbal delict as a striving for freedom at the time when the majority of news and newspapers con- sisted of press releases of different state organizations. Today defamations them- selves have become part of the previously directed police drama, which people do not take seriously or observe helplessly. The most stubborn supporters of criminal prosecution of verbal delict in the former Yugoslavia are today authors of defama- tion decriminalization laws. The mere fact speaks for itself. Lawyers are guilty of that and we will take the responsibility. However are journalists completely inno- cent? They have to answer that question.
New technological innovations have largely changed today’s picture of the world, but history teaches us it is not a novelty. The “abrupt expansion of the public circle” is something that cyclically repeats in human history. We must see the solu- tions applied in such periods and adapt them to contemporary needs. I trust that only common law lawyers understand it in a more organized way. It’s high time that we start considering this topic.
I also believe that journalists must study in greater detail the system of collec- tive management of copyrights, which in my opinion may at the beginning ensure freer economic operation and more substantial independence.
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