On 2 March, the government of Bosnia’s entity Republika Srpska (RS) adopted a Draft Law on Amendments to the Criminal Code of the RS which introduces new criminal offenses against honour and reputation. The new criminal offenses of insult and defamation would be punishable with fines of up to 80,00 KM (approx. 40,000 EUR). If the draft law is passed, it will represent a very significant setback for freedom of expression in the country, for journalism in particular. The development comes some two decades after a big battle was fought and won to decriminalise defamation in Bosnia, with the very first law decriminalising defamation adopted, ironically, in Srpska in 2001. Here we republish an analysis of the draft law and its implications by prominent lawyer Lejla Gačanica. The piece was originally published by SEENPM member Mediacentar Sarajevo.
A lawyer’s look at the Draft Law on Amendments to the Criminal Code of the RS.
After the announcement of changes to the Criminal Code of the Republika Srpska (KZRS) and serious warnings about the harmfulness of the announced changes that criminalize defamation and insult, the Government of the Republika Srpska nevertheless on 2 March 2023 adopted the Draft Law on Amendments to the Criminal Code of the Republika Srpska (further: Draft Law). The Draft Law envisages the introduction of defamation and insult as criminal offences, i.e. it prescribes criminal offenses against honor and reputation. Despite numerous warnings that criminalization of acts against honor and reputation seriously narrows the space for freedom, that it is a retrograde and very restrictive way of regulating communication and use of public space, and that it is contrary to democratic standards, the Draft Law still included proposals which, if adopted, will be a serious threat to freedom of speech and expression in the Republika Srpska (RS).
The Draft Law in Chapter XVIIa prescribes criminal offenses against honor and reputation, as follows: insult, defamation, disclosure of personal and family circumstances, and public exposure to humiliation on grounds of belonging to a certain race, religion or nationality. Referring to the need to “protect human dignity, honor and reputation”, guaranteed by the RS Constitution, what is proposed is a serious violation of other rights also guaranteed by the RS Constitution – freedom of thought and orientation, of public expression of opinion, and freedom of the press. Ironically, in 2001 Bosnia and Herzegovina was the first country in the Western Balkans to decriminalize defamation.
First of all, it is important to note that acts against honor and reputation are already regulated by the Law on Protection against Defamation of the RS – there already exists legal regulation of defamation, i.e. civil liability for defamation. This Law prescribes “acceptable limitations to freedom of expression with regard to civil liability for harm caused to the reputation of a natural or legal person by the making or disseminating of something false” and its content and scope of protection are similar to the Law on Protection against Defamation of the Federation of Bosnia and Herzegovina. In both cases, the Laws prescribe protection against harm to reputation, also taking into account the right to freedom of expression, which is potentially restricted in defamation cases. These Laws have also been a source of threat to the work of journalists and media, especially considering the SLAPP (Strategic Lawsuits against Public Participation) phenomenon that has intensified in recent years. However, prescribing defamation as a criminal offense takes on a completely new dimension – it entails criminal liability and, according to the Draft Law, draconian punishments. This will not only put every publicly spoken word, especially against the powerful and ruling structures, in a position of being subject to criminal proceedings; the very existence of such provisions will lead to censorship and self-censorship. At a time when the media and the civil sector are rare sources of criticism, questioning and information, these legal provisions actually introduce a latent threat that freedom of action will no longer be freedom, much less pluralism.
Namely, insult is introduced as a criminal offense punishable by a fine of 5,000 KM to 20,000 KM. If the offence is committed in public, i.e. if it accessible to a large number of persons, the prescribed fines are between 10,000 KM and 50,000 KM. However, the text of the provision on insult is very brief – “one who insults another”, without specifying what the insult would be or giving any description of the act for which extremely high fines are prescribed. This would mean that judicial practice will determine to some extent what an insult is, which, looking at legal theory, could still be very broad and include any act that disparages the sense of personal worth or expresses disrespect for another person’s human dignity. It is this lack of precision that creates room for characterizing almost anything as an act of insult and its assessment will entirely remain in the hands of the courts. The range of the amount of the fine is also wide and a valid question arises as to how the amount of the fine would even be determined in specific cases. Unfortunately, insult, defined in this way in the Criminal Code, certainly represents an unjustified and very vague introduction of restrictions, which leaves room for abuses and a threat to freedom of expression, especially considering the qualified fine for insult committed through the press, radio, television or other means of public information or public assembly (Article 208a). Furthermore, the Draft Law stipulates that if the perpetrator was provoked by the “unworthy conduct of the insulted party” or the insulted party accepted an apology for the committed act, the court may release the perpetrator from punishment. Retorsion is also introduced – if the insulted party returned the insult, the court may release both or one of the perpetrators from punishment.
Unlike insult, which does not have a clearly determined definition or elements in the Draft Law, defamation has remained the same in its essence as in the Law on Protection against Defamation – any person who makes or disseminates an expression of false fact about another person that may cause harm to their honor or reputation, knowing that the expression is false. The description of prohibited actions is shorter compared to the Law on Protection against Defamation, but this again leaves potential room for abuse. The penalties prescribed for this offense are a fine ranging from 8,000 KM to 30,000 KM; if the offense was committed through the press, radio, television or social networks, during public assembly or in another way that made it accessible to a large number of persons, the penalty will be a fine of 15,000 KM to 80,000 KM. Furthermore, if the expression made or disseminated has led or may lead to serious consequences for the injured party, the perpetrator will be punished by a fine of 20,000 KM to 100,000 KM. The stipulated fines are again extremely high – significantly higher than the amounts that the courts in B&H have so far awarded in defamation lawsuits, and their range (in each category of offense) is quite wide. The issue here is one of excessive regulation, i.e. unnecessary regulation in criminal legislation of acts that are already regulated by a separate (civil) law. The intention of such provisions must therefore be viewed in light of the consequences they may cause, i.e. suppression of the right to opinion and expression under the threat of extremely high penalties and criminal prosecution.
The last criminal offense is the disclosure of personal and family circumstances in such a way that whoever discloses or disseminates anything from the personal or family life of a person that may harm their honor or reputation will be punished by a fine of 10,000 KM to 40,000 KM. If the act referred to in paragraph 1 of this article was committed through the press, radio, television or social networks, in public assembly or in another way, as a result of which it became accessible to a large number of people, the perpetrator will be punished by a fine of 20,000 KM to 100,000 KM. This is a specific case of insult and defamation, but it differs from defamation in that defamation exists only when an expression of something false is made or disseminated, and from insult in that it does not need to be disparaging. This does not mean that the information must be true or that the act cannot also be carried out by disparagement. While in other countries with such arrangements there is strong criticism since the legal standards of democratic countries allow the violation of privacy if that violation is in the interest of the public, the RS decided to introduce a retrograde legal solution.
The Draft Law further stipulates that there is no criminal offense of insult, defamation, disclosure of personal and family circumstances or public exposure to humiliation on grounds of belonging to a certain race, religion or nationality if it regards the offensive making or dissemination of something false in a scientific, professional, literary or artistic work, in the performance of a duty prescribed by the law, journalistic profession, political or other public or social activity or the defense of a right, if it follows from the manner of expression or from other circumstances that it was not carried out with the intent of disparagement or if the person proves the truthfulness of their allegation or that they had a valid reason to believe the truthfulness of what they expressed or disseminated. This article is supposed to “mitigate” the effects on the work of those in whose foundation is the public and the public space, i.e. the questioning and critique of social and political events, but in reality the element of intent (it was not carried out with the intent of disparagement) or proving the truthfulness of the allegation bring us back to the beginning – who will report, prove and assess whether there is a basis for excluding illegality. At the same time, this will most certainly benefit political activities in actions which according to existing provisions may already be punishable, but prosecution and sanctions simply do not happen.
From the Draft Law and the context of its adoption, it can thus be recognized that it is not based primarily on the legislative need to standardize criminal offenses against honor and reputation and restrict freedom of expression, but that it is a political attempt to narrow the space for freedom of the media and civil society and actually create a space of silence for critical voices in the RS. To recall, the Constitution of Bosnia and Herzegovina (B&H) and the European Convention on Human Rights and Freedoms are the highest hierarchical documents, i.e. those with which all state and entity laws should be harmonized. This Draft Law, however, encroaches on the guaranteed freedom of expression (in both mentioned documents), restricting it with criminal provisions that bring back into positive legislation the long-abandoned concept of criminal liability for the publicly spoken and written word, especially for those whose occupation entails public space and critical thinking.
In the assessment of compliance with the legal system of the European Union (EU), the proposer refers to restrictions on freedom of expression, absurdly, provided for by the European Convention on Human Rights and Freedoms, in the part that lists possible restrictions or punishments prescribed by the law and needed in a democratic society to preserve other rights and freedoms. However, it is forgotten that the RS already has these restrictions through the existing Law on Protection against Defamation and also that restrictions through civil law are actually supposed to provide a necessary balance on a sensitive issue, where one right/freedom ends when it violates someone else’s right. Furthermore, the International Covenant on Civil and Political Rights is also mentioned, which provides for restrictions on freedom of expression for reasons of respect for the rights or reputation of other persons, reasons of protection of national security, public order, public health or morals. It is not mentioned, however, that not every restriction is acceptable and that it should be justified and proportionate to the need, i.e. according to human rights standards, restrictions on freedom of expression should only occur as the most necessary and last resort.
The legal consequences of adopting the proposed changes would include two different standards for defamation in B&H – civil liability in the Federation of B&H and Brčko District of B&H and criminal liability in the RS. This could especially pose a problem for freedom of the press and negatively impact the legal security and legal equality of citizens and the media in B&H. Furthermore, it should be emphasized that such solutions are contrary to international standards and represent a threat to media freedom in the RS. In the conclusions and recommendations of the conference “How much freedom will we have left?”, held in February 2023, on the announced changes to the Criminal Code (before the adoption of the Draft Law), in addition to opposition to the criminalization of defamation and insult, an (alternative) proposal was made, through reform of the Law on Protection against Defamation of the RS, aimed at clearer protection of defendants and specifying compensation for defamation by establishing proportionate and reasonable limits of the maximum amount of compensation so that the survival of the media is not called into question, as well as by introducing appropriate guarantees against the awarding of compensation that is disproportionate to the actual harm, but also by legally setting higher standards of admissibility and tolerance in cases of alleged defamation. It was also proposed to introduce provisions on release from liability for alleged defamation by introducing “anti-SLAPP” provisions and criteria, i.e. provisions on primary protection of freedom of expression from judicial abuse by allowing the dismissal of (SLAPP) lawsuits manifestly without merit.
In addition to the legal implications, it is necessary to look at the broader consequences that the introduction of such criminal offences would bring. Nine non-governmental organizations and media outlets from the RS have signed the declaration ”Together against restriction of rights and freedoms”, expressing their opposition to the criminalization of acts against honor and reputation and their disagreement and concern that the announced adoption of the law would be used against independent media, journalists and activists in order to silence dissent in RS society and prevent the free work of journalists, associations and individuals in the RS. They point out that this legal initiative will possibly be used to intimidate representatives of the media and the non-governmental sector, as well as individuals who express views contrary to the views of the authorities in the RS, which would represent a departure from democratic ideals.
Finally, the fear that the Criminal Code of the Republika Srpska would become a tool for restricting free opinion and media freedoms in the RS is justified. According to an analysis by the lawyer and director of the Banja Luka Center for Human Rights, Dejan Lučka, this restriction of freedom of expression would be used beyond the purpose for which freedom of expression may be restricted and would serve groups and individuals as a tool aimed at nullifying freedom of expression or restricting it to greater extent than necessary.