As a lawyer, Vesna Alaburić has been involved in media and related legislation, defending journalists and publishers in lawsuits, and providing legal advice for 33 years. She is the main founder of the Legal Defense Fund, which was launched by USAID in Croatia in 1999. She is a permanent advisor to the Council of Europe on issues of freedom of expression and a proposed member of the permanent judicial council of the European Court of Human Rights.
In an interview with Žurnal, she talks about proposed changes and amendments to the Criminal Code in Republika Srpska, as well as drafts of laws on misdemeanours against public order and peace, which also announce stricter sanctions for media in two cantons, the Una-Sana Canton and the Sarajevo Canton.
A TOOL FOR DISCIPLINING JOURNALISTS
Defamation was decriminalized in Bosnia and Herzegovina 20 years ago, but the regime in Republika Srpska (RS) intends to recriminalize defamation through proposed amendments to the Criminal Code of RS. What message does the RS government send by doing so?
The message is very simple - we want to have an additional tool for disciplining journalists and media. Undoubtedly, it is a desire to reach for some repressive tool to obtain some contents that the authorities deem not disturbing.
Draft laws on offences against public order and peace in two cantons in the Federation of Bosnia and Herzegovina announce tougher sanctions for the media. Can we talk about narrowing the space of media freedom and endangering freedom of speech in Bosnia and Herzegovina?
Similar provisions are present in the laws on offences against public order and peace in Croatia and other countries of the former Yugoslavia, and if properly applied, it should not be a problem. This provision cannot be applied to contents of social situations such as criticism of authorities, individuals, media texts, etc., and it must not serve for any prosecution of media contents.
It is one thing to punish someone for spreading fake news, and quite another when politicians use defamation lawsuits to influence journalists and media. How can we regulate to ensure freedom of speech while also introducing restrictions to prevent harm to others?
The law on offences against public order and peace primarily serves to maintain public order and peace in public places such as squares, halls, streets, stadiums, etc. This is not a law that applies to media content. Media content must be subject to entirely different laws. Therefore, there is no such thing as fake news as such that needs to be prosecuted. What is important is whether some untrue content harms the social and general good, and that is the criterion for the state's intervention to protect the endangered social or personal good.
When we talk about social goods, we are talking about public order and peace, national security, health and safety, and the like, and when we talk about individual goods, we are then talking about reputation and honour.
WRONG INTERPRETATION OF THE LAW
So, the state has the right and obligation to intervene when it needs to protect some endangered or social personal good, but it must not do so arbitrarily and voluntarily, but only in the way prescribed by law and in the cases prescribed by law.
When it comes to media content, in fact, the state should leave it to individuals to protect their personal goods. The state must not interfere in media content in a completely arbitrary way and allow itself to dictate to journalists and editors what and how to do things.
Draft laws on misdemeanors against public order and peace seem to want to present social networks as public spaces...
This is something that also happens in Croatia. In Croatia, the police also treat social media as public space and have initiated misdemeanor proceedings under the law on misdemeanors against public order and peace for content posted on social media. We have tried to vehemently oppose it, to write and talk about it, as it is a wrong interpretation of the law. It is up to all of us to fight against it.
It cannot be said that social media is private communication, because as soon as you reach a large number of people, you are in the public sphere, but this law on misdemeanors against public order and peace is intended for specific physical spaces, not communications on social media, of any kind.
Does it make sense for all of this to also cover the media?
It makes no sense at all. Such an interpretation of that law is a kind of abuse and a threat.
It is interesting that the proposers refer to practices in EU countries. Can such solutions even be implemented in societies where all analyses point to a captured judiciary?
When we refer to regulations of individual European countries, it is not only important to read what is written in that law, but also how that law is enforced. In all our countries, the interpretation of certain regulations in other countries is often abused. Therefore, those regulations have never been used in any European country to discipline the media. Any attempt at such an interpretation is actually completely incorrect and obscures the essence of things.
Given that defamation is regulated by existing laws, is there a real need for it to be treated as a criminal offense?
Of course not. There is a fundamental principle of criminal law, which is that criminal legislation protects only those personal and social values that cannot be effectively, efficiently, and adequately protected by other branches of the law. There is no doubt that in Bosnia and Herzegovina, laws on protection against defamation in civil proceedings have secured protection of reputation and honor, and therefore, there is no justification for protecting the same personal rights with criminal law.
Is it possible to protect the public interest in light of the announced restrictions on media freedoms and freedom of speech?
The public interest must always be the key criterion. In addition to the general objection to Republika Srpska for even considering reintroducing the criminalization of defamation, the main objection is that the proposer did not take into account the public interest. In all legislation and in the practice of the European Court of Human Rights, there is a fundamental criterion for defending journalists: if you have done your job well and professionally in the public interest, then you must be exempt from any responsibility.
The public interest is a crucial concept when it comes to media and freedom of speech.
How to define public interest and where are the boundaries of public interest?
Public interest cannot be defined because everything depends on circumstances and timing. Sometimes a topic will be of public interest, and sometimes it won't. But in short, it can be said that everything related to the functioning of individual state organs, spending public money, performing functions of ministers, prime ministers, presidents, and everything related to any other activities such as education, sports, or social activity - these are all topics of public interest. Even individuals who are otherwise anonymous persons in certain situations become public figures because they simply participate in an event that has attracted a lot of public attention.
Can users of public funds be protected from criticism and analysis by the public and the media?
Absolutely not. They must be aware that every action and omission of theirs should be subject to criticism. They must be prepared for this criticism, and if they are not ready, then they should not engage in politics.
THREATENING JOURNALISTS WITH FINES IS A THREAT TO FREEDOM OF SPEECH
Considering that criminal prosecution involves the involvement of prosecutors, how much room does it open for the abuse of these measures for the protection of politicians?
In Croatia, these lawsuits fall under the set of private lawsuits. An individual who considers themselves a victim files a private lawsuit and thus initiates criminal proceedings, creating a conflict between two citizens in an equal position. In Republika Srpska, there is no institute of private prosecution, so the prosecutor will prosecute at the request of the victims. If you had a country where the judiciary is independent, high-quality, professional, and accountable, and if the prosecutor protected the interests of the state rather than the individual, such a solution could be a defence against abuse.
However, if you do not have such a prosecution, there is a great danger of favoring certain people and the prosecutor becoming a free lawyer for people in power and those who want to use criminal proceedings to protect private interests. I think that is a great danger.
How realistic is it that the fines will be in the designated amounts that go up to 100,000 KM?
It is not realistic at all. I also believe that the people who create laws in Republika Srpska know what the Human Rights Court has said about fines. Anything exceeding the average monthly salary is generally considered disproportionate, and therefore such a fine constitutes a violation of freedom of expression. I believe that in further proceedings and public debates, the legislator in Republika Srpska will reduce the fines, but I fear that they will still remain too high. The mere threat to journalists that they have to pay fines from their monthly salaries constitutes a violation of freedom of speech and can reasonably be considered to cause self-censorship.
Self-censorship is considered censorship, and censorship is not allowed in a democratic society, so the entire legislative project is very problematic, I would even say unacceptable...
Are all these proposed legal changes in line with the Constitution of Bosnia and Herzegovina?
The Constitution of Bosnia and Herzegovina, like the Constitution of Croatia, protects freedom of speech, but also the right of individuals to reputation and honour. It cannot be said a priori that this would be completely unconstitutional, but I would say that any specific decision that will be made or would be made based on the law if it remains as is, without considering the public interest and prescribing such high fines, would constitute a violation of freedom of expression. In that sense, it would be against the Constitution of Bosnia and Herzegovina.
What to do, how to fight, because it is obvious that the authorities will not give up?
Firstly, it is necessary to declare clearly, and I think that colleagues in Republika Srpska are already doing this, that this is a significant step backwards in protecting freedom of speech. Secondly, formulate amendments in a way that at least two things are done: introducing a criterion of public interest and significantly reducing the fine. Thirdly, have good legal teams to help journalists in preparing media content before publishing, to minimize risks, and if a legal process ensues, to win these cases. If legal proceedings do indeed begin, it is good to have good lawyers to defend you.
Fourth, but also very important, is professional solidarity. Reporting well and accurately on all situations and processes that will represent an abuse of media discipline rights. It is important that there are funds to help all journalists and media outlets if they find themselves in a situation where they have to pay fines. There is no doubt that the Human Rights Court will clearly state, if these cases come before that court, that they are violations of freedom of expression. But unfortunately, it can take up to eight years to get a ruling, which is too late for a media outlet. That's why it's important to have funds and solidarity-based support from non-governmental organizations that deal with human rights protection to get through that period.