Author: Dejan Lučka
Last week, Banja Luka hosted a conference entitled “How much freedom we’ll be left with?”. The conference was directly motivated by the announcement of legislative amendments in the Republika Srpska, introducing defamation and insult as criminal offenses, as well as the adoption of a law on fake news and expansion of criminal offenses against the constitutional order.
At the end of the conference, nine nongovernmental organisations and media outlets signed a declaration “Together against restriction of rights and freedoms”, expressing opposition to such regulation; the Declaration, along with conference conclusions and proposals, were submitted to the Government and the National Assembly of the Republika Srpska (NARS).
How did it all begin?
At the end of October last year, Milorad Dodik announced on Twitter that “as President of SNSD” he asked “the Government, specifically the Ministry of Justice” to prepare new and amend existing laws.
However, such an announcement entailed a substantial legal problem.
According to the Republika Srpska Constitution and NARS Rules of Procedure, the right to propose laws is granted to: MPs in NARS, the President, the Government, and at least three thousand voters, but not a political party president. Milorad Dodik could propose laws in his capacity as the President of the Republika Srpska, but not as the president of the SNSD political party.
Furthermore, according to the Rules of Procedure, an initiative for a law may be submitted, among others, by political or other organisations, associations and citizens. However, such an initiative for a law is to be submitted to the Speaker of the NARS, not the Government, as was done in this case.
Therefore, the very beginning of the legislative process happened in contravention of the regulations, sending a message to the public that legal obligations mean practically nothing.
A two-decade leap back
The 2000 Criminal Code stipulated defamation as a criminal offence. A fine or imprisonment of up to six months were the prescribed punishment for the basic offence, whereas a fine or imprisonment for up to one year were the sanctions for the aggravated offence; in the case of grave consequences for the victim, the perpetrator could have been sentenced to prison for up to two years. These provisions were deleted as early as the following year, as the Law on Protection against Defamation was supposed to come into force. With subsequent laws that regulated defamation at the level of the Federation of Bosnia and Herzegovina and Brčko District, Bosnia and Herzegovina became the first country in the Western Balkans to decriminalise defamation.
Various European and international bodies (Parliamentary Assembly of the Council of Europe, OSCE Representative on Freedom of the Media, UN Human Rights Committee, etc.) have criticised the imposition of criminal sanctions in defamation cases. The criticism is partly rooted in fears that criminal sanctions, compared to civil proceedings, have a greater potential to generate a deterrent effect (even an intimidating effect) on freedom of expression. In addition, defamation prescribed by criminal codes is particularly susceptible to abuse for the purpose of silencing opponents and critics of the government.
According to human rights standards, restrictions on freedom of expression should only occur as a last resort (ultima ratio) and when there are no milder solutions. However, milder solutions already exist, as stipulated by the aforementioned Law on Protection against Defamation.
If defamation were to be criminally regulated, journalists would certainly be the first to be targeted by criminal sanctions, which would jeopardise the role of the media as a “watchdog” of the public interest and stifle public debate. Journalists should be able to do their jobs without fear, instead of having to worry about criminal prosecution.
It is also problematic that a situation would arise of unequal rights and obligations within a single state, as defamation is not a criminal offense in other parts of Bosnia and Herzegovina. A big problem is the degree of dependence of the prosecutor’s offices and courts on politics and the extent of corruption that exists in them. We can only imagine the demands of politicians directed at prosecutors to prosecute a journalist for defamation. We should also bear in mind that the prosecutor’s offices and courts are overloaded with cases and that criminalisation of defamation would increase their number, further reducing the efficiency of these bodies.
Looking at the practice developed so far, it is clear that bringing defamation back under criminal law would also mean a leap back for more than two decades.
It is also very concerning that the authorities fail to discuss better protection under the framework of the existing mechanisms, despite the fact that, for example, it is necessary to specify compensation for defamation and introduce proportionate and reasonable thresholds for the maximum compensation amounts so as not to jeopardise the survival of media outlets; introduce appropriate guarantees against awarding compensation disproportionate to the actual injury; as well as incorporate the “anti-SLAPP” criteria into the law.
The danger of fast-tracking and (un)specified regulation
The big question regarding the possible regulation of “fake news” is how do we even define “fake news” in the Republika Srpska, and who is competent to assess what is and what is not fake news: institutions, courts, new agencies …?
The specific questions are whether public broadcasters would also be held liable for spreading fake news and to what extent would media freedom be threatened if journalists have to transmit information only in the form in which they receive it from the Government, the police or some other public body, without the possibility of questioning its credibility. We could step here into the concept of two “truths”: the truth and the truth presented to us by the authorities.
Such regulation may entail particular problems for activists and journalists. It suffices to glance at neighbouring Serbia, where two and a half years ago journalist Ana Lalić was detained for writing a text and accused of “spreading panic and fake news” because she wrote that the Clinical Centre of Vojvodina had problems with equipment and chaotic working conditions during the pandemic.
With respect to expanding the criminal offenses against the constitutional order, it is not quite clear what is the direction of or the need for this expansion. However, there are unconfirmed rumours that this is about prescribing offences by which representatives in the institutions of Bosnia and Herzegovina coming from the Republika Srpska would be obligated to act in accordance with the instructions of the institutions of the Republika Srpska.
In addition to all of the above, a major problem in the formalisation of such laws is their possible fast-tracked adoption, without expert or public discussions, without extensive consultations with citizens, nongovernmental organisations and the media, and without a detailed explanation of the need for their adoption. The fast-tracked adoption of regulations is something that should be an exception, but it is increasingly becoming the rule, which undermines the safety of citizens, but also their participation and democratic principles in the legislative procedure.
The hope of nongovernmental organisations and the media is that the institutions will nevertheless proceed in the name of freedom of expression and democracy, not of individuals or any political options, that the laws will not be amended or passed ad hoc, to the detriment of the rights and freedoms of citizens, and that the announced legislative changes will not happen.
The views expressed in this text do not necessarily reflect the views of the Initiative for Monitoring European Integration’s members or the Initiative itself.