The proposed legal provisions would further threaten freedom of expression in Republika Srpska (Bosnia and Herzegovina).
Milorad Dodik, president of the Alliance of Independent Social Democrats (SNSD), who was elected as the new president of Republika Srpska (RS) entity in this year’s elections, at the end of October asked the Government of that entity of Bosnia and Herzegovina, i.e. the Ministry of Justice, to prepare new and amend existing laws, and to adapt them to European Conventions.
He wrote on his Twitter account that the set of laws aims to prevent the spread of fake news and hate speech, as well as introduce defamation as a criminal offence into the Criminal Code of the RS and expand criminal offences against the constitutional order. International standards and practices, as well as the previous attitude of the authorities in RS towards the media, show that these changes would further threaten the freedom of expression in this entity. The practice of the European Court of Human Rights dictates that imprisonment is never justified in cases of defamation, and the mechanisms of the United Nations (UN) that the prohibition of disinformation is not a legitimate goal in itself.
Is the goal to prevent the spread of fake news or limit freedom of speech?
Article 19 of the Universal Declaration of Human Rights mandates that everyone has the right to freedom of opinion and expression, which includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Freedom of expression, according to Article 19 of the International Covenant on Civil and Political Rights, can be restricted only for the respect of the rights or reputations of others and for the protection of national security or public order, or public health or morals.
Similarly, the European Convention on Human Rights mandates that states may limit freedom of expression when necessary in democratic societies, in the interest of national security, territorial integrity or public safety, prevention of disorder or crime, protection of health and morals, reputation or rights of others, preventing the dissemination of confidential information or in the interest of preserving the authority and impartiality of the judiciary.
According to these provisions, freedom of expression can be restricted in extremely rare cases and such restrictions, according to UN recommendations, must be legal, necessary and legitimate. The UN Rapporteur for the promotion and protection of the right to freedom of thought and expression states that banning disinformation is not a legitimate goal in itself. If they exist, legal provisions that limit freedom of expression according to international standards must be clear, precise and transparent and must limit the discretion of the authorities to distinguish between legal and illegal expression. Such provisions must burden the right to freedom of expression as little as possible.
Examples from other countries show that laws prohibiting the spread of disinformation often restrict freedom of expression and the free flow of information and are used to sanction dissent. In the past decade, and especially during the pandemic, a number of countries introduced legislative provisions to prevent the spread of misinformation and harmful content.
Most of these provisions, as stated in the report of the UN Rapporteur for the promotion and protection of the right to freedom of opinion and expression, did not precisely define the key terms “disinformation” and “fake news”, the harm of which such legal solutions aim to prevent, and what is the relationship between the misinformation conveyed and the harm it caused.
These legal provisions in most cases give discretion to the authorities to make arbitrary decisions and sanction dissidents, journalists and human rights defenders. Turkey, for example, ratified a new law in October under which those who spread disinformation can be sentenced to three years in prison. During the pandemic, the authorities in RS adopted, and after a call of international organisations, repealed provisions punishing citizens for causing panic and disorder during the COVID-19 pandemic by spreading fake news. These provisions punished people who pointed to a lack of medical personnel and equipment, which speaks of how a similar legal framework in the RS could be used.
In the Federation of Bosnia and Herzegovina (FBiH) and Brčko District, laws on public order and peace prescribe sanctions for spreading “fake news”. As stated in the publication on the regulation of harmful content on the Internet in BiH, the Law on Public Order and Peace of Brčko District and six out of ten cantonal laws on the protection of public order and peace in FBiH prescribe misdemeanour sanctions for spreading false news or allegations that may disturb citizens and threaten public order and peace. Most of these laws do not provide precise definitions of “fake news” or the difference between disinformation and misinformation − the intent or absence of intent to cause harm − and give the police the right to arbitrarily decide such cases. Although these legal frameworks are rarely used in practice, studies show that such examples exist, but are rarely reported. According to available analyses, such legal frameworks should be abolished.
Instead of introducing repressive measures, which would be an additional excuse for restricting freedom of expression based on the previous attitude of the authorities in the RS towards the media, the authorities in the RS, as well as in the Federation and at the level of BiH, should strengthen independent journalism, media literacy and build a transparent and open government.
Independent journalism, proactive and timely publishing of information by the authorities, and a population that has developed media and information literacy skills are the best protection against disinformation. This can be achieved by introducing progressive media policies, supporting independent media without political pressure and through funding based on legitimate criteria and expert commissions, but also by improving the implementation of the law on freedom of access to information, proactively publishing information of public interest, and introducing and strengthening media literacy throughout the formal education system.
Hate speech is already prohibited. Is the law implemented?
International law prohibits incitement to discrimination, hostility and violence against others on the basis of protected characteristics such as national and religious affiliation. The International Covenant on Civil and Political Rights requires states to prohibit any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (Article 20), while the International Convention on the Elimination of All Forms of Racial Discrimination calls on states to declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin.
Incitement to discrimination, hostility and violence against others based on skin colour, ethnic and national origin, gender, sexual orientation and disability and other protected characteristics often precedes hate crimes, is based on intolerance and is contrary to democratic principles, stability and peace. Examples throughout history have shown that hate speech was used as war propaganda and preceded wars, including wars in the former Yugoslavia, and as such, it is particularly dangerous and prohibited in most countries.
The criminal code in the RS has good provisions for preventing the spread of hate speech, so it is not necessary to introduce new ones. The Criminal Code of RS prescribes that “Whoever, by using the press, radio, television, a computer system or a social network, at a public gathering or public area or otherwise, publicly calls for, incites or inflames or makes available to the public the leaflets, images or any other materials that call for violence or hatred against a certain person or groups on account of their national, racial or religious or ethnic affiliation, skin colour, sex, sexual orientation, disability, gender identity, origin or other properties, shall be punished.”
Instead of introducing a new law, the RS authorities should work on improving the implementation of the existing one. International standards dictate that egregious examples of hate speech should be sanctioned, especially those coming from speakers who have a greater influence on society. Guidelines of the UN Action Plan from Rabat state that when sanctioning hate speech, one should look at the context, the position of the speaker, the intention, content and form, the reach of the speech and the likelihood that harm will be caused. Based on these international standards, the authorities in RS as well as in BiH could focus on sanctioning high-ranking persons who intentionally spread hate speech, often towards other ethnonational groups, especially bearing in mind the political and social context of BiH.
The fight against hate speech is not limited to legal solutions but includes systemic action and prevention in the field of education, media and strengthening of institutions. Government representatives and politicians in RS and Bosnia and Herzegovina should, for a start, refrain from spreading hate speech themselves because according to UN guidelines, their influence is far greater than that of anonymous users of social networks and can have far greater consequences.
“Criminal defamation laws are a legacy of the colonial past”
International standards on freedom of expression allow states to limit freedom of expression if it affects the reputation of others. Although defamation is still criminalised in certain EU countries, as stated in an Istinomjer analysis, the practice of the European Court of Human Rights is that the imposition of a prison sentence is never justified or acceptable in the case of defamation. The UN Rapporteur for the promotion and protection of the right to freedom of thought and expression stated that criminal defamation laws are a legacy of the colonial past and have no place in modern democratic societies. The Council of Europe also promotes and advocates the decriminalisation of defamation.
The decriminalisation of defamation in Bosnia and Herzegovina was a very important step for media, civil liberties, and freedom of expression 20 years ago. Today, entity laws for protection against defamation and the law of Brčko District regulate civil liability for damage caused to the reputation of a natural or legal person by presenting or conveying the expression of untrue facts by identifying that legal or natural person to a third party. However, research shows that defamation lawsuits are a widespread form of intimidation of journalists in Bosnia and Herzegovina.
According to data from the Free Media Helpline, 289 active cases were recorded in July 2020. The analysis of the OSCE mission in BiH, which encompassed about 1,000 defamation lawsuits against journalists in the period from 2016 to 2019 in BiH, showed that in 70 per cent of cases the plaintiffs who file lawsuits against journalists and the media are politicians or officials and that these lawsuits are mainly filed against content of public interest, for media reporting on nepotism, corruption of the authorities, and their involvement in war crimes.
Criminalizing defamation would give officials and politicians an even more oppressive legal provision framework to use against journalists who report about them critically and further restrict freedom of expression. Instead of returning to more repressive methods, the authorities in RS and BiH should work on introducing legislative measures and strengthening the protection of journalists and other workers against strategic lawsuits against public participation (SLAPP lawsuits) with the aim of censorship, intimidation and silencing critics.
They should also strengthen the judiciary and the implementation of the jurisprudence of the European Court of Human Rights and stricter standards of admissibility, tolerance and proof of defamation in cases of lawsuits by public figures compared to lawsuits by private individuals. Finally, they should realise that as public figures they are subject to greater criticism and stop using defamation lawsuits as a way to intimidate journalists.
Crimes against the constitutional order or protection of officials?
Milorad Dodik has announced that he will expand criminal offences against the constitutional order of Republika Srpska. According to the Criminal Code of RS, criminal acts against the constitutional order and security of RS, in addition to attacks, endangering the territorial integrity of RS, bringing RS into a position of subjugation, murder and kidnapping of the highest representatives of RS, since last year also include damage to the reputation of Republika Srpska and its peoples (Article 280a).
After the former High Representative imposed provisions prohibiting public condoning, denial, gross diminution or attempts to justify the crimes of genocide, crimes against humanity and war crimes established by final judgments in July 2022, the National Assembly of RS, in response to those changes of the Criminal Code of Bosnia and Herzegovina, passed the Law on Non-application of the Decision of the High Representative and an amendment to the Criminal Code, stipulating prison sentences of up to three years for publicly exposing to ridicule, contempt or grossly disparaging Republika Srpska, its flag, coat of arms, emblem or anthem. The Code states that if the act is committed in such a way as to mark Republika Srpska as an aggressor or genocidal creation or its peoples as aggressors or genocidal, the perpetrator will be punished with a prison sentence of six months to five years.
The reputation of public authorities (except courts) is not foreseen as a possible restriction of freedom of expression in paragraph 2 of Article 10 of the European Convention for the Protection of Human Rights and is not one of the legitimate goals that justify restrictions on freedom of expression. Last year’s special report of the UN Rapporteur for the promotion and protection of the right to freedom of opinion and speech cites the example of the Turkish Criminal Code, whose categories of “disparaging the Turkish nation” or “insulting the president” are used against journalists and activists. Such legal provisions again give discretion to the authorities to act and sanction dissenters. It is not known what other new categories Dodik plans to introduce into the Criminal Code of RS, but there is a high probability that it will not be in the interest of the citizens but of those in power.
This article was originally published on Media.ba.