Who Cares About Public Interest?

The preceding year presented formidable challenges for freedom of expression and affiliated freedoms in Bosnia and Herzegovina (BaH): an attack on LGBT+ community members, the draft statute on online disinformation endowed with expansive police authority and the draft of the so-called FARA law. Yet, the free speech regression reached the peak by reintroducing criminalization of defamation and several compatible crimes in Republika Srpska (RS; federal unit).

The Criminal Code of Republika Srpska (CCRS) was amended in July 2023, despite the concerns expressed by various international actors (UN Special Rapporteurs, UN, OSCE, CoE and the EU (jointly), ODIHR), journalists and NGOs (here, here) urging against such a legislative trajectory. They criticized the draft due to harsh sanctions and fines, vague provisions, and censorship potential. Furthermore, BaH decriminalized defamation in 2001 (RS), 2002 (Federation of Bosnia and Herzegovina) and 2003 (Brčko District), and to resort to criminal law, would be a step backwards for human rights protection, “since [s]tate practice shows that criminal defamation laws are often used against [persons] who are critical of government officials and policies”. Yet, the authorities denied the criticism indicating that the public fora need to be regulated in order to suppress the number of verbal attacks among citizens adding that the intent was not to censor media. Sad to say, the RS Government did not introduce any empirical analysis depicting civil law protection as insufficient. Authorities, also, noted that the criminalization of the defamation is accepted in the vast majority of the European states, especially EU Member States. Before enacting, the draft was slightly changed reducing fines and excluding insult as a crime.

After the amendments came to force, a group of state-level MPs initiated an abstract judicial review of constitutionality procedure before the Constitutional Court of BaH (CCBH) which upheld the law as constitutional. Despite such judgment, I claim in this blog post that the CCRS amendments are not fully aligned with the standards under the European Convention on Human Rights (ECHR) and the case-law of the European Court of Human rights (ECtHR) due to the absence of public interest defense.

The CCBH Judgment – Not Much of a Reasoning

On January 18, 2024, the CCBH issued judgment no. U-21/23, affirming the constitutionality of the criminalization of defamation and related acts (paras. 32-34). While upholding in abstracto constitutionality of defamation and analogous offenses, the CCBH cautioned RS authorities to exercise prudence in deploying criminal remedies in individual cases (para. 35).

One of the arguments submitting for the unconstitutionality is that that the re-criminalization stood against the “European values” (para. 7), and that the CCRS provisions are vague, thus failing to meet the legality criterion under the tripartite test (para. 9).

Surprisingly, the judges based their brief ruling only on three points, relying on several ECtHR judgments. Firstly, the provisions are predictable enough, albeit the court did not provide for any detailed discussion (para. 25). Secondly, the mere sequence of events, wherein RS initially decriminalized defamation and subsequently embarked on re-criminalization in 2023, does not, per se, constitute a violation of constitutional and human rights norms (para. 33). Thirdly, prescribed sanctions are proportionate, as they only impose reasonable fines and foresee no imprisonment (para. 34).

The Court simply failed to make any meaningful and substantive analysis regarding the alignment of the new crimes with the ECHR standards, including the public interest defense. Judge Nußberger criticized such perfunctory explanation in her short concurring opinion, although she also did not make any substantive analysis.

The Provisions of the Amendments

This part will introduce and analyze the amended provisions in greater details. Since the exact words matter are essential for this post, I cite the relevant provisions. Article 208a (1) defines defamation as “whoever states or circulates something that is untrue concerning another person that harm their honor or reputation, knowing that what they state or circulate is untrue”. Article 208g is a defense provision. Statements shall not constitute criminal offenses (including defamation) if expressions are featured in “scientific, professional, literary or artistic work, in the performance of a duty prescribed by law, journalistic profession, political or other public or social activity or defense of a right, if from the way of expression or it arises from other circumstances that it was not done with the intention of disparagement, or if the person proves the veracity of [her/his] statement, or that [s/he] had a well-founded reason to believe in the veracity of what [s/he] stated or circulated.”

The complexity of the last provision requires meticulous reading. One may get confused  whether all exclusionary elements need to be fulfilled (a cumulative rule) or just one (an alternative rule) to invoke the defense. Still, a textual interpretation implies that this is a cumulative rule, necessitating the fulfillment of one element from each category: some of the enumerated activities or defense of a right and a lack of the intention of disparagement or the veracity argument. Such interpretation is explicitly or implicitly accepted by analysis of the CCRS amendments (here, here and here), and in the commentary of Article 176 of Serbian Criminal Code (Stojanović, pp. 579-580). Yet, the CCBH did not elaborate on the scope of defense provision.

What About Public Interest?

The wordings of articles 208a and 208g do not mention public (general) interest defense or a contribution to a public interest debate as a general rule. This omission stands against the settled ECtHR case-law since the public interest is a cornerstone of the balancing between the right to privacy and freedom of expression (Articles 8 and 10 ECHR) in the case-law of the ECtHR (von Hannover no. 2 v. Germany (paras. 109-113) or Axel Springer (paras. 89-95)). As noted by Grabenwarter, the contribution to public debate can be decisive for the outcome of a case (Grabenwarter, p. 266).

The opposing argument to my claim might be that broad concept of public interest is only being specified in CCRS, providing for different categories of public interest. Categories such as journalistic or scientific expression are merely parts of the public interest concept. By exhausting all elements of the public interest concept, a blanket exemption is unnecessary, the argument ends. However, such claim is fallacious, since the provided exemptions do neither encompass all elements (possible situations) of the public interest, nor it is possible to put an exhaustive list of public interest elements (situations).

Further, the existing wording of the law provides no recourse for ordinary individuals to invoke defenses based on veracity or any other defense. Namely, those unable to categorize themselves under any of the enumerated categories in the first part of the Article 208g are precluded from utilizing any defense action outlined in the second part. Ordinary individuals, nonetheless, may contribute to a public interest debate and disseminate information of significant public importance – “a matter of ‘great public interest’ can present itself in numerous other forms of human expression, outside the scope of professional activities enumerated in the Amendments”.

Next, the absence of a public interest defense in the new law negates a possibility for applying another crucial element of the ECtHR balance test. Public figures, politicians in particular, are expected to tolerate a higher level of criticism than ordinary individuals (Feldek v. Slovakia, para. 74). Lamentably, the CCRS does not envisage the public figure defense. As there is no general public interest defense either, it is impossible to distinguish between public and non-public figures.

Lack of Public Interest Defense and Abstract Review

In adjudicating abstract review cases, constitutional courts are required to ascertain the meaning of the contested rule and subsequently determine its constitutionality. If a rule’s meaning provides for an eventual situation where constitutional standards are not met, then the rule is unconstitutional. Applying von Hannover or Axel Springer-criteria is an essential method of resolving a conflict between privacy and freedom of expression, either in criminal or civil law cases. Nevertheless, the RS judges are unable to entirely apply this well-established balance test. While certain cases may fit exemptions under Article 208g, leading to the dismissal of an indictment (e.g., a charged person being a journalist with a well-founded reason to believe in the truthfulness of their writings), others may result in convictions aligning with international human rights standards (e.g., an ordinary citizen making untrue comments with mala fide intent). Still, in cases not covered by Article 208g, where an accused is an ordinary person, a potential victim is a public figure, and a statement contributes to a debate of public interest, a judge will be unable to entirely align with ECtHR standards. This, precisely, is why the CCBH should have reached a different decision – not because the criminalization of defamation contradicts international human rights law per se, but because the law is inadequately formulated to accommodate all ECHR standards.

One might argue that public interest is of no value for defamation cases where false statements were disseminated with an author’s awareness of the statements’ untruthfulness, as defined per Article 208a. Yet, if that is the case, then why do we have any defense under Article 208g for the crime of defamation? What difference does it make if a lie was sparked by a journalist or anyone else? Further on, what is the purpose of the truthfulness defense under Article 208g, if a person knowingly disseminates false information? If one reads the similar provision of the Croatian Penal Code which was one of the role-models for the CCRS amendments, they will see that Croatian legislator does not provide for a defense provision for defamation under Article 149, probably because the lawmaker feels that knowingly presenting or disseminating untrue facts cannot ever be done in public interest. Therefore, if a legislator puts various defenses for defamation as defined in Article 208a, then there is no valid reason not to put public interest or public figure defenses.

It may be argued that the CCBH’s role was confined to abstract control of constitutionality, and individual cases would be decided on a case-by-case basis, with judges adjudicating each case according to circumstances and context. However, the crucial point is that a judge will be unable to identify exemptions beyond those envisaged by Article 208g. Consequently, judges will be incapable of analyzing whether a statement contributes to a debate of public interest or if a public figure is the subject of a statement.

Conclusion and Possible Steps Forwards

This post underscores the intricate nature of criminalizing acts against privacy, including reputation, such as defamation. The ECHR generally permits to legislate defamation within criminal law, yet this was not the case with the poorly structured CCRS provisions. The CCBH failed to comprehend that the new law offers no latitude for judges to fully align with the ECtHR standards.

As I see it, there are three possible steps forwards:

1. the CCRS should be amended in a manner to redefine the defense provision to include public interest or to stipulate that these crimes shall be interpreted in accordance with the ECtHR jurisprudence;
2. abolishing the described crimes, but the RS authorities are keen in keeping these offenses, so such advocacy would be futile;
3. judges could directly apply the ECHR and the ECtHR case-law regarding a conflict between freedom of expression and privacy rights since the ECHR has a supremacy over domestic laws except for Constitution (CCBH judgment, para. 14) and combine it with the CCRS, but this “solution” does not remedy the CCRS shortcomings; this step is highly unlikely to happen since ordinary courts judges are reluctant in applying the ECHR directly.

It remains to see outcomes of individual cases and reactions of the CCBH and ECtHR in eventual cases before them.