Edited by Mehmed HALILOVIĆ and Amer DŽIHANA

MEDIA LAWIN BOSNIA AND HERZEGOVINA

Sarajevo, 2012

Title: MEDIA LAW IN BOSNIA AND HERZEGOVINA

Publisher: INTERNEWS IN BOSNIA AND HERZEGOVINA, Sarajevo, Hamdije Kreševljakovića 50, 71000 Sarajevo, Bosnia and Herzegovina, www.internews.ba

For publisher: Sue Folger

Editors: Mehmed HALILOVIĆ and Amer DŽIHANA

Authors: Mladen SRDIĆ, Sevima SALI-TERZIĆ, Mirjana NADAŽDIN-DEFTERDAREVIĆ, Libby MORGAN, Helena MANDIĆ, Vanja IBRAHIMBEGOVIĆ-TIHAK, Šejla JUSUFOVIĆ, Mehmed HALILOVIĆ and Amer DŽIHANA.

Recension: Monroe PRICE and Zdravko GREBO

Technical corrections: Kristina ĆENDIĆ and Meliha BAJROVIĆ

Translation: Kristina ĆENDIĆ

Proofreading: Florentina DRAGULESCU

Design: Dalida KARIĆ-HADŽIAHMETOVIĆ

CIP - Katalogizacija u publikacijiNacionalna i univerzitetska bibliotekaBosne i Hercegovine, Sarajevo

34:659.3](497.6)

MEDIA law in Bosnia and Herzegovina[Elektronski izvor] / [authors Mladen Srdić ...[et al.] ; edited by Mehmed Halilović and AmerDžihana ; translation Kristina Ćendić]. - Sarajevo: Internews Network, 2012. - 1 elektronski zapis :tekst, slike, animacije. - (Elektronski tekstualnipodaci)

Tekst s nasl. ekrana. -Način dostupa (URL): http://www.internews.ba

ISBN 978-9958-1995-1-61. Srdić, MladenCOBISS.BH-ID 20001030

This book was made with a great help of American people through the US Agency for International Development (USAID) within the project of supporting independent media in B-H, implemented by Internews in Bosnia and Herze-govina.

Perspectives and opinions expressed in the book are exclusively those of the authors and they do not necessarily express the opinion of Internews, USAID, or the Government of the United States of America.

Authors of texts used different linguistic norms used in Bosnia and Herzego-vina. These linguistic differences were kept in final versions of the texts.

FORE WORD

Media Law in Bosnia and Herzegovina examines the legal environment – the legislative framework, institutions, laws and practices – in which news media operate in Bosnia and Herzegovina (B-H). It is a reference guide for B-H media practitioners, lawyers, universities, and governmental and non-governmental institutions – all stakeholders who work together in a democratic society to serve the public’s best interests. We hope that the Primer will raise interest and improve understanding of media laws among all target groups. We also an-ticipate that media law courses will eventually be considered for inclusion into regular university curricula.

This compendium, which we call the B-H Primer, is the first of its kind in Bosnia and Herzegovina. It is part of Internews’ USAID-funded five-year project to sup-port and strengthen independent media and the media environment in B-H. The need for such a publication in B-H is great; the complexity and specificities of B-H institutions, norms and legal practices, juxtaposed with European stan-dards and practices, make understanding basic media laws and concepts far from easy.

The Primer is not encyclopedic. Based on a diagnostic survey and subsequent research, it has a defined range of topics and legislation that were considered to be important to address to better understand media law practice in B-H. In this document, we illustrate, explain, compare and provide recommendations. Although, by international standards, B-H media laws are deemed quite good, there is still room for improving both the laws and their implementation.

With assistance from the University of Pennsylvania’s Annenberg School for Communication, the Primer is a product of exhaustive research and writing by a team of experts from different backgrounds, practicing in the judiciary field, legal practice, academia, regulatory institutions, media research, and the media industry. We consider this publication a critical step towards improving the le-gal and self-regulatory framework and institutions in Bosnia and Herzegovina,

particularly in light of the country’s aspirations to European Union membership. It should be considered a working document – its online publication will most certainly go through regular updates and changes, and we invite you, our read-ers, to comment and send us suggestions.

I want to express my deep appreciation to Internews colleagues Mehmed Halilović and Amer Džihana, who not only authored and edited many sections of the Primer, but were the true drivers of this effort. I also want to thank our key outside contributors for their insight, enthusiasm and prolific writing - Mlad-en Srdić and Sevima Sali-Terzić - as well as Helena Mandić, Mirjana Nadaždin-Defterdarević, Libby Morgan, Vanja Ibrahimbegović-Tihak and Šejla Jusufović. Gratitude goes to Katharine Larsen of Levine Sullivan Koch & Schulz, LLP for her valuable comments and suggestions, and to Monroe Price and Zdravko Grebo for their review. Many thanks also go to Kristina Ćendić for translating this volu-minous document.

Sue Folger

CONTENT

FOREWORD .................................................................................................................................................... 5REVIEWS ........................................................................................................................................................ 13NEED FOR MEDIA LAW IN BOSNIA AND HERZEGOVINA .............................................................. 15WHY WE NEED A PRIMER OF MEDIA LAW ......................................................................................... 17INTRODUCTION ......................................................................................................................................... 19

CHAPTER 1: A LEGAL ENABLING ENVIRONMENT FOR NEWS MEDIA ACTIVITY .............. 27GENERAL CONDITIONS FOR THE ACTIVITIES OF FREE MEDIA ................................................... 29PRECONDITIONS FOR A LEGAL ENABLING ENVIRONMENT ........................................................ 29FUNDAMENTALS OF FREE MEDIA AND JOURNALISM ................................................................... 31

CHAPTER 2: FREEDOM OF EXPRESSION – NORMATIVE FRAMEWORK ................................ 33CONSTITUTIONAL AND LEGAL FRAMEWORK ENSURING FREEDOM OF EXPRESSION ....... 35LEGISLATIVE ACTIVITIES OF INTERNATIONAL COMMUNITY ...................................................... 37INTERNATIONAL CONVENTIONS AND AGREEMENTS IN THE LEGAL SYSTEM OF B-H ........ 41THE MOST IMPORTANT INTERNATIONAL SOURCES ...................................................................... 42ROLE OF EUROPEAN COURT OF HUMAN RIGHTS IN THE APPLICATION OF CONVENTION .... 44DECLARATIONS, RESOLUTIONS AND RECOMMENDATIONS OF THE COUNCIL OF EUROPE ...... 45RESPONSIBILITY OF A STATE ACCORDING TO ARTICLE 10 ........................................................... 47RELEVANCE OF ARTICLE 10 OF THE CONVENTION FOR ACTIVITIES OF THE MEDIA ............ 49 Right to privacy ....................................................................................................................... 49 Hate speech ............................................................................................................................. 50 Freedom of the press ............................................................................................................ 51

CHAPTER 3: FREEDOM OF EXPRESSION IN COURT PRACTICE ................................................ 53MAIN STANDARDS OF THE PRACTICE OF EUROPEAN COURT ................................................... 55FACTS AND OPINIONS .............................................................................................................................. 55RIGHT TO PROTECTION OF REPUTATION AND RESPONSIBLE JOURNALISM ......................... 57PROPORTIONAL DAMAGE....................................................................................................................... 57PROTECTION OF CONFIDENTIAL SOURCES ...................................................................................... 59EUROPEAN CONVENTION IN THE PRACTICE OF THE CONSTITUTIONAL COURT OF B-H ......... 63GENERAL PRINCIPLES OF THE PROTECTION OF FREEDOM OF EXPRESSION APPLIED BY THE CONSTITUTIONAL COURT OF B-H .............................................................................................. 64 MAIN DECISIONS OF THE CONSTITUTIONAL COURT .................................................................... 67 Satire and value judgments ................................................................................................ 67 Balance between freedom of media and right to reputation ................................. 69 Proving that damage occurred .......................................................................................... 70 Discretion of the Court when deciding on damage ................................................... 74 Determining the amount of non-pecuniary damage ................................................ 78

Right to fair trial and privacy .............................................................................................. 80EXPRESSIONS RELATED TO PUBLIC INTEREST MATTERS ............................................................... 84SUPERVISION OVER PUBLIC OFFICIALS .............................................................................................. 84LIMITS OF ALLOWED CRITICISM ............................................................................................................ 86PRACTICE OF COURTS IN BOSNIA AND HERZEGOVINA ................................................................ 88 Responsibility of politicians and public officials .......................................................... 89 Making distinction between value judgments and facts ......................................... 90 Principle of proportionality ................................................................................................ 91OFFENSIVE, DISTURBING AND SHOCKING INFORMATION .......................................................... 92STATUS OF LEGAL ENTITIES ................................................................................................................... 94 LEGAL STANDARDS REGARDING THE RELATION BETWEEN PUBLIC INTEREST AND THE TREATMENT OF PUBLIC FIGURES AND POLITICIANS...................................................................... 96

CHAPTER 4: RIGHT TO INFORMATION .............................................................................................. 99NORMATIVE FRAMEWORK OF THE RIGHT TO INFORMATION IN BOSNIA AND HERZEGOVINA .. 101CONSTITUTIONAL PROVISIONS AS DETERMINING FACTORS ................................................... 102RIGHT TO INFORMATION IN REPUBLIKA SRPSKA AND IN THE FEDERATION OF B-H ......... 104SIMILARITIES AND DIFFERENCES AMONG CANTONAL LAWS .................................................. 105RIGHTS, LIMITATIONS AND SANCTIONS .......................................................................................... 108SHORTCOMINGS OF CANTONAL LAWS ..................................................................................... 110 RATIONALIZING AND ABANDONING NORMATIVE AUTHORIZATIONS ................................. 110THE FREEDOM OF ACCESS TO INFORMATION ACT ...................................................................... 112NO MORE NO LESS RIGHTS FOR JOURNALISTS ............................................................................. 112OPENNESS, DEMOCRACY AND CORRUPTION ............................................................................... 113SECRET DOCUMENTS ARE NOT EXEMPTED .................................................................................... 114THREE TYPES OF POSSIBLE EXEMPTIONS ........................................................................................ 115OTHER LAWS ARE NOT IN ACCORDANCE WITH FOAIA ............................................................... 116THE LAW ON PROTECTION OF SECRET DATA EXCLUDES FOAIA .............................................. 117EXAMPLES OF LAWS WITHOUT COMPLIANCE ............................................................................... 118FOAIA EXCLUDES AUTOMATISM ........................................................................................................ 120SOME SHORTCOMINGS OF FOAIA AND EXPERIENCES IN ITS APPLICATION........................ 122ONLY STATE LAW HAS SANCTIONS .................................................................................................... 123POLITICAL BOYCOTT OF THE MEDIA CONTRARY TO LAWS ....................................................... 124

CHAPTER 5: DEFAMATION AND MASS MEDIA ............................................................................ 127LAWS ON PROTECTION AGAINST DEFAMATION ........................................................................... 129DECRIMINALIZATION OF DEFAMATION AND INSULT IN B-H ..................................................... 130REASONS FOR PASSING THE LAW ON PROTECTION AGAINST DEFAMATION ..................... 131THE START OF THE APPLICATION OF LAWS ON PROTECTION AGAINST DEFAMATION IN B-H .... 134IMPORTANT PRINCIPLES OF EUROPEAN COURT IN THE LAWS OF BOSNIA AND HERZEGOVINA ... 136BASIC CHARACTERISTICS OF LAWS IN B-H ..................................................................................... 137LINGUISTIC AND TERMINOLOGICAL DIFFERENCES AMONG LAWS ....................................... 139DEFAMATION IN COURT PRACTICE ................................................................................................... 141CONCEPT OF DEFAMATION ................................................................................................................. 141

DIFFERENCE BETWEEN FACTS AND VALUE JUDGMENT ............................................................ 142DISTINCTION IN THE PRACTICE OF DOMESTIC COURTS............................................................ 144EXAGGERATION AND PROVOCATION .............................................................................................. 147NOT EVERY VALUE JUDGMENT IS PROTECTED .............................................................................. 148IDENTIFYING DEFAMED PERSONS ..................................................................................................... 149IDENTIFYING DEFAMED GROUP ......................................................................................................... 151TYPE OF DAMAGE AND COMPENSATION ...................................................................................... 152 AMOUNT OF COMPENSATION............................................................................................................. 155LIABILITY FOR DEFAMATION ............................................................................................................... 159WHO IS THE AUTHOR OF AN INTERVIEW? ....................................................................................... 160WHEN JOURNALISTS DISTANCE THEMSELVES FROM INTERLOCUTORS ................................161DISSEMINATION OF EXPRESSIONS .................................................................................................... 163EXEMPTIONS FROM LIABILITY ............................................................................................................ 166PUBLIC INTEREST AND ACTING WITH BONA FIDE ........................................................................ 168VERIFICATION OF FACTS ....................................................................................................................... 169REPORTING ABOUT ONGOING COUR PROCEEDINGS ................................................................. 172SATIRICAL EXPRESSIONS ...................................................................................................................... 175TEMPORARY MEASURES........................................................................................................................ 177URGENCY OF ACTION IN PROCEEEDINGS RELATED TO DEFAMATION ................................. 178DIMINISHING DAMAGE ......................................................................................................................... 179PUBLISHING THE JUDGMENT .............................................................................................................. 180PUBLISHING A CORRECTION ............................................................................................................... 181LIABILITY FOR INSULT ............................................................................................................................ 182INSULT WITH A NATIONAL LABEL ...................................................................................................... 184BASIC CONCLUSIONS ABOUT THE TREATMENT OF DEFAMATION BEFORE COURTS IN B-H ..... 187RECOMMENDATIONS TO JOURNALISTS AND EDITORS............................................................... 187

CHAPTER 6: MEDIA AND JUDICIAL SYSTEM OF B-H ................................................................ 189CASES INVOLVING MEDIA IN B-H: MECHANISMS OF PROTECTION AND PROCEDURE .... 191CASES RELATED TO THE LAW ON PROTECTION AGAINST DEFAMATION............................................ 191FILING LAWSUITS AND APPEALS AGAINST DECISIONS OF FIRST INSTANCE ....................... 193DEADLINES FOR ASSERTING DEFAMATION CLAIM ..................................................................... 193USING REVISION AS AN EXCEPTIONAL LEGAL REMEDY ............................................................ 194SUBMITTING APPEAL TO THE CONSTITUTIONAL COURT OF BOSNIA AND HERZEGOVINA ..... 196APPEAL TO THE EUROPEAN COURT OF HUMAN RIGHTS .......................................................... 196MEDIA DISPUTES RELATED TO THE APPLICATION OF THE COMMUNICATION LAW ........ 197BURDEN OF PROOF IN LITIGATORY PROCEEDINGS .................................................................... 200 WHEN DEFENDANTS CARRY THE BURDEN OF PROOF ............................................................... 201ABSOLUTE TRUTH SHOULD NOT BE PROVEN ................................................................................ 202FREEDOM OF EXPRESSION AND THE PROTECTION OF AUTHORITY AND IMPARTIALITY OF JUDICATURE ....................................................................................................................................... 205 COURTS ENSURE A LEGAL STATE ...................................................................................................... 205 PRESSURING LEGISLATURE IS NOT ALLOWED .............................................................................. 207

LIMITATIONS OF FREEDOM OF EXPRESSION PROTECTING THE FUNCTION OF JUDICATURE IN A SOCIETY .................................................................................................................. 208 The role of lawyers ............................................................................................................... 208 Limitations of acceptable criticism ................................................................................ 209 Judges and the right to freedom of expression ........................................................ 210 Public debates and comments on court decisions .................................................. 212RECOMMENDATIONS FOR REPORTING ON COURT PROCEEDINGS ....................................... 212

Chapter 7: MEDIA AND PRIVACY ..................................................................................................... 215PROTECTION OF PRIVACY ..................................................................................................................... 217 DIFFERENCE BETWEEN PRIVATE AND PUBLIC SPHERE .............................................................. 219PROTECTION OF PRIVACY IN B-H ....................................................................................................... 221PRIVACY OF CITIZENS IN DAILY NEWSPAPERS IN B-H ................................................................ 223

Chapter 8: LIMITATIONS OF FREEDOM OF MEDIA AND PROTECTION OF NATIONAL SECURITY ........................................................................................................................... 225INTERNATIONAL STANDARDS RELATED TO FREEDOM OF EXPRESSION, ACCESS TO INFORMATION AND THE PROTECTION OF NATIONAL SECURITY........................................... 227 ACHIEVING FAIR BALANCE .................................................................................................................. 228JOHANNESBURG PRINCIPLES ............................................................................................................. 230 INTERNATIONAL STANDARDS ............................................................................................................. 231WHY PUBLIC INTEREST TEST IS IMPORTANT .................................................................................. 232DISCLOSING SECRET IN CRIMINAL CODES OF B-H ...................................................................... 234CRIMINAL CODES IN BOSNIA AND HERZEGOVINA ...................................................................... 234WHO CAN BE PROSECUTED FOR DISCLOSING SECRET DATA? ................................................ 238ACQUIRING SECRET DATA ILLEGALLY ............................................................................................... 241RESTRICTIVE CRIMINAL CODES .......................................................................................................... 242RIGHT TO ACCESS PUBLIC INFORMATION AND STATE SECRETS ............................................. 243ARE SEVERE PENALTIES IN CRIMINAL CODES CONTRARY TO ‘PUBLIC INTEREST’?............. 245LEGISLATIVE CONSEQUENCES FOR WORK IN JOURNALISM AND FREEDOM OF EXPRESSION ... 246

Chapter 9: REGULATION OF ELECTRONIC MEDIA...................................................................... 249REGULATION OF BROADCASTING IN B-H ........................................................................................ 251LICENSES ON THE PRINCIPLE OF COMPETITION .......................................................................... 251FORMING THE REGULATORY AGENCY............................................................................................... 252WHAT THE COMMUNICATION LAW PRESCRIBES ......................................................................... 254WHAT THE AGENCY IS IN CHARGE OF AND WHAT IT CONSISTS OF ...................................... 257THE GENERAL DIRECTOR ...................................................................................................................... 258(IN)COMPLETE FINANCIAL INDEPENDENCE .................................................................................. 259RULES AND CODES OF THE AGENCY ................................................................................................ 261ENCOURAGING SERVICE PROVIDERS COMPETITION ................................................................. 263PROCEDURES IN CASES OF VIOLATIONS OF THE CODE, RULES OR LICENSE CONDITIONS ...... 265

OVERVIEW OF VIOLATIONS OF RELEVANT RULES AND REGULATIONS ............................... 266 1998-2001 Period ................................................................................................................. 266 2002-2010 Period ................................................................................................................. 268LAWS ON PUBLIC RTV SYSTEM AND SERVICES ............................................................................ 272 BASIC PRINCIPLES OF THE LAWS ........................................................................................................ 273OTHER LEGAL PROVISIONS ................................................................................................................. 278 LAW AMENDMENTS ............................................................................................................................... 279DYSFUNCTIONAL SOLUTIONS ............................................................................................................ 281

Chapter 10: CODES OF JOURNALISM ............................................................................................. 283RULES AND CODES OF PROFESSIONAL ETHICS OF JOURNALISM ......................................... 285MAIN PRINCIPLES OF CODES OF ETHICS ........................................................................................ 285 SPECIFICITIES OF THREE CODES ......................................................................................................... 288PERCEPTION OF REGULATION AND SELF-REGULATION ............................................................ 289COMPARING THE MOST SIGNIFICANT STANDARDS OF THE CODE ......................................... 291 Ban on hate speech ............................................................................................................. 291 Protection of privacy and minors ................................................................................... 294RECOMMENDATIONS TO ADVANCE PROFESSIONAL STANDARDS OF JOURNALISM ...... 298 Strengthening the watchdog function ........................................................................ 299 Support to media literacy ................................................................................................. 299

Chapter 11: MEDIA OWNERSHIP ...................................................................................................... 301MEDIA OWNERSHIP AND CONCENTRATION: CONCEPTUAL AND LEGAL FRAMEWORK ....... 303OVERVIEW OF THE ROLE OF THE MEDIA IN A DEMOCRATIC SOCIETY .................................. 304MEDIA CONCENTRATION CONCERNS .............................................................................................. 305 Merger typologies ............................................................................................................... 306 Implications of media ownership concentration ..................................................... 308 THE EU APPROACH TO MEDIA OWNERSHIP CONCENTRATION .............................................. 308 Overview of the main actors in the application and elnforcement of EU competition policy ............................................................................................................................. 309 Policy instruments for media ownership concentration ........................................ 310B-H LEGAL MEDIA OWNERSHIP FRAMEWORK .............................................................................. 312 Actors and policy instruments for B-H ownership concentration policy ......... 312GROWTH OF CONCENTRATION AND DIVERSITY OF OPINIONS .............................................. 315

AUTHORS ................................................................................................................................................... 317

Annex 1: OVERVIEW OF THE CRA DECISIONS REGARDING COMPLAINTS ON CONTENT ... 321DECISIONS RELATED TO THE COMPLAINTS ON PROGRAM CONTENT 1998-2001 ........... 323OVERVIEW OF VIOLATIONS OF THE CODE 2002-2010 ............................................................. 326

BIBLIOGRAPHY ........................................................................................................................................ 338

RE VIE WS

NEED FOR MEDIA L AW IN BOSNIA AND HERZEGOVINAZdravko Grebo

It is not common to begin an assessment/evaluation and review of a serious text with a subjective opinion. However, this seems necessary to me. As soon as I started reading the Primer, as an ‘attorney of general practice,’ I felt uncom-fortable judging the work, written and structured according to the highest standards and by the authors who, as far as I know, are experts for individual aspects of the field of ‘media law.’ Finally, this work is a very successful, as well as a pioneer endeavor, which is not always the case for this type of publications. Therefore, these top experts made a rather well theoretically based book that is a collection of normative and institutional solutions – international and domes-tic exact analyses of court and out-of-court practice— and last but not least, is a reminder and a handbook for all actors who work and produce within the media space. Succeeding to achieve all this and place it logically between the covers of one book is not a small task.

Although at first glance it seems that this is a guild (in the true sense of this term) of legal-journalistic analysis which will hopefully be the foundation for a new legal branch (immediate association is the analogy to the initial tenden-cy of establishing ‘election law’), it is important to point out that even this first attempt offers unimaginably wider implications. On short, these texts do not provide us with only a clear overview of legislation, jurisprudence and rules of professional regulations and self-regulations. This text provides much more. In the background, the text treats great and eternal topics: freedom, democracy, state with legislation, ways of protecting subjects, freedom of thought and ex-pression, ways of communication, peace, tolerance, truth… If this list of ethical and political ideals seems pretentious, I am certain that media sphere with all its potential which can bring freedom - but why not with bringing damage, too - significantly participates in shaping even a community organized in the best way and its well-situated future.

Without authorization, because it sounds prophetic: At first there was a word. Both logos and mitos are the words that represent roots of civilized life. And so, even if media are not the only actors in this decisive game, they are certainly some of the important players. Therefore, we should do everything possible to make sure that if the word was at the beginning, it should not be at the end.

Naturally, even though this last sentence sounds cataclysmic, it does not mean I am looking for trouble. On the contrary! Here, I speak about two tangent elements arising out of the light of texts within the covers you have in your hands. The first is the place and the role of media in shaping the public or the public opinion. There

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is a great responsibility of media employees who change the opinions of the audi-ence as a ‘resonant box’ that perhaps ‘reacts’ but does not actively shape political decisions. The basic need is to create citizen ‘institutions of autonomous commu-nication.’. How and where can that be done, if not in the space of the media?

The second, although local, circumstance is that the entire system, theory and analysis of practice must be tested on the case of Bosnia and Herzegovina. This toponym figures in the very title of this text, too. To say it politely, our state has a pretty unique constitutional organization. Additionally, we live in a post-war society where resentments are in the forefront of everyone’s mind. Furthermore, if we add the fact that we live within a complex framework where “comprehen-sive doctrines” rule – national, religious, cultural and linguistic – the only solu-tion is overlapping consensus. Nobody wants to destroy this or that person or group. Even if, perhaps, deep down someone would want to, we still have to live together, even reluctantly. The goal of this long passage is to say that, if we truly accept what has been said, there is no better-organized channel than media for now, no matter what this ultimately means.

At the end, to the best of my belief, I want to persuade you to accept my sug-gestion that your professional, academic, and civic duty is to read this book. One of the additional values of this text is that the introduction provides you with a precise and concise overview of all chapters’ content. You can even choose parts with the content you are interested in. Without any doubt and without any un-necessary politeness, I strongly believe that here we got an extremely valuable text.

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WHY WE NEED A PRIMER OF MEDIA L AWMonroe Price

A Primer of Media Law and Policy is a document designed to benefit its society. Any such Primer begins with certain assumptions: By understanding existing media institutions and practices, problems can be comprehensively identified, analyzed and addressed. “The rule of law” can be advanced only if there is a com-prehensive sense of how law is articulated and how enforcement is attempted. A sense of history and context are essential. No understanding of media law and policy in Bosnia and Herzegovina is possible without addressing the European framework and the history of evolution of the special institutions of this fragile and complex society. A commitment to the proper working of media institu-tions is a necessary part of healthy state building.

Each effort at a Primer, for a variety of societies, begins with exploring the en-abling environment for a sustainable and effective media sector. Creating such a sector depends on some common commitments—commitments to free ex-pression values, to independence, to attention to the economic basis of the media, and to the rule of law. But in each disparate context, the enabling en-vironment is different. Even a subject as seemingly obvious as “independence” has very difficult local outcroppings. “Independence” sounds absolute, but every institution has dependencies and influences that are tied to budget, tied to gov-erning structure, and tied to the large-scale political ambience. This Primer takes on the difficult task of describing the enabling environment for the unique set of circumstances that constitutes Bosnia-Hercegovina.

Certainly, that enabling environment is deeply unusual, deeply demanding of all of those who are trying to make the society work effectively and in a humane manner. Here there must be special attention to the consequences of war and conflict. There is the existence of the separate entities and the Herculean task of negotiating federalism and overall state-building. Levels of authority multi-ply and cascade upon each other; each historic division echoes in regulatory complexity. Here, too, there is the long and impactful role of the international community as a strong regulatory presence. There are the special legacies and presences of ideology, religion, and ethnicity. A Primer must deal with these questions while staying with the formal, the rules, and institutions themselves.

This document is a wondrous contribution. It does something significant; it presents a body of law. It collects examples and provides insight into what those examples mean. In the areas of defamation, privacy, licensing, and other mat-ters, the contributors painstakingly find elements of an overall perspective and then shape and mold that material to present it in an even more real way; they

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create a map that can be impactful on industry, citizens and state.

In the course of their analysis, they demonstrate the sheer complexity of law. How is one to absorb and reflect the insights from a distant European Court of Human Rights or other products of tribunals and bureaucracies? The docu-ment describes these instruments and their interpretations but, by doing so, the document underscores the problem of distance and understanding—how to translate the needs of Bosnia and Herzegovina to a far-off set of judges and the ways in which to translate the outcome of deliberations when they are issued.

Many difficult questions lie ahead, difficult questions that are beyond the scope of this Primer.

To what extent does legal culture affect political culture? Can media law system that operates better lead to a more functional media—one that assists in politi-cal integration, if that is the goal? How should emerging changes in the political culture affect the regulatory policies relating to media? To what extent are bud-getary and organizational issues in media institutions more significant barriers than legal impediments? Ultimately, what is significant is the robustness of the media sector, and how dedicated to informing the citizenry and how free it is of animosity and divisionism. A quiet premise is that a perfected media contrib-utes to a healthy political culture, one that makes conflict a matter of debate in a democratic society and not a resort to arms. The Primer assumes that a properly functioning legal system effectively increases the likelihood that the media can play that role. Ultimately, this idea of a healthy media contributing to a healthy polity is the driving forces behind media law and media assistance. The primer is a tool—and we hope an effective tool—to make that possibility more likely.

This project has been extraordinarily fortunate in having a superb team en-gaged in bringing the Primer to realization. In Sarajevo, a wise and dedicated team was lead by Amer Džihana and Mehmed Halilović. In Philadelphia, Libby Morgan has directed the role of Annenberg’s Center for Global Communications Studies, aided by Katharine Larsen. Sue Folger of Internews was a steadying and creative hand throughout.

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INTRODUC TIONAmer Džihana and Mehmed Halilović

How is freedom of expression legally ensured in Bosnia and Herzegovina? Is en-suring this freedom respected and applied, and if so, to which extent? What is its application like? What are the special foundations of media law, freedom, respon-sibility, and limitations? What is their application like? How much do the courts in this country follow the standards of European Court of Human Rights? Does media community respect its own professional standards?

We received only partial answers to these and similar questions. Now, for the first time, we get them in this scope and in this unique publication. We named this publication ‘Media Law in Bosnia and Herzegovina,’ that is, B-H Primer. The title in English (Primer) is known in media community and in the world.

In every country that published a Primer, preparing and publishing it was justified by the needs of media community, legislature, public authorities, and civil society. In Bosnia and Herzegovina, due to a number of constitutional, legal, and political specificities, there are even more reasons and greater needs for such publication.

It is not very simple to get familiar with or to understand the very complex system of institutions, norms and practices in B-H. As a collection of norms and practices representing the environment in which press, radio, television and new online media operate, media law is, in some segments, even entirely set aside as ‘less important’ with regard to the focus of public interest, the hierarchy of legal regula-tions, and even the practice. Although most laws in this field get very high grades even in international surveys and researches, media law does not have an ade-quate representation. There is no law school, nor journalism studies department, where media law is a regular course (occasional lectures and media clinics are not an adequate and complete substitute). Moreover, there are only few judges and lawyers which specialize in this field while media community only occasionally tackles this issue and mostly it does so one case at a time.

One of the primary goals of Internews in B-H, which realizes a five-year USAID project of support to the media and strengthening media environment in B-H, is advancing the media legislature. Along with a number of specific measures in the promotion of media law at universities and within media community, this B-H Primer is the most significant step. The Primer is primarily intended for the media community, as well as for judges and lawyers. In addition, it could also be useful to governmental and non-governmental organizations, neces-sary literature to students of law and journalism and all citizens who have me-dia freedom at their heart and for whom the right to freedom of expression is a lodestar. Therefore, the Primer is intended for all who find information and

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mass communication important – citizens, associations of civil society, profes-sional organizations and governmental institutions.

The B-H Primer is not an encyclopedia of all that could be defined under the con-cept of media law in its widest sense. Spatial or other limitations do not allow this, nor would it contribute to fulfilling the goal even if these limitations did not exist.

In the first chapter, Libby Morgan gives basic guidelines for defining a desirable con-text within which it is possible to develop free and independent media. The author emphasizes the values of free press and rule of law as crucial determiners of such en-vironment. Although the freedom of press is a precondition for a functioning demo-cratic society, it is not absolute. Instead, it is limited by the interests of individuals and the society. Morgan believes that a legally enabling environment should heed such dynamics and provide adequate balance between these interests.

The second chapter consists of two texts. In the first text, Mehmed Halilović and Mirjana Nadaždin-Defterdarević present constitutional and legal determiners that ensure freedom of expression in general and the free work of media in B-H in particular. Halilović and Nadaždin-Defterdarević point at the fact that interna-tional conventions and declarations on human rights formally represent a part of legal system of B-H. Beside this, B-H accepted all international legal standards established by the European Court of Human Rights, as well as numerous recom-mendations and declarations of the Council of Europe. The authors emphasize that the legislative framework for media activities is very complex, particularly because, apart from local actors of public policies, the international community in B-H proved to be an important legislator, as well. Practically, the international community passed a completely new legislative framework for media through the Office of High Representative and through the activities of other organiza-tions. The scope of the intervention included passing laws in the sphere of free access to information, decriminalization of defamation, public RTV broadcasting, Communication Law, etc. Even though all these laws mostly reflected the highest world standards at the time when they were written, it is still necessary to notice that these activities of international community mainly followed “the inefficiency of public authorities and their incapability of regulating the matters of the right to information.” This means that such framework was not a result of internal, B-H democratic debate, which led to an inadequate implementation of legal solutions that came later.

In the second text of this chapter, Mladen Srdić gives a thorough overview of inter-national sources which ensure freedom of thought and expression, including dec-larations, resolutions, and recommendations of the Council of Europe which define the standards of operations in media sphere. A special attention is paid to the Euro-pean Convention for the Protection of Human Rights and Fundamental Freedoms. Article 10 of the Convention defines freedom of expression as a basic human right

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and is thus particularly important for media activities. The author points out that the Convention stipulates the realization of the right to freedom of expression along with obligations and responsibilities; this makes this provision unique in the Con-vention and cannot be found in any other provision regulating rights and freedoms. Srdić elaborates on the stance given by Morgan in the first chapter at length – that the right to freedom of expression can clash with other rights provided by the Euro-pean Convention. In this context, he identifies hate-speech and the right to privacy as potential limitations to freedom of expression. The role of courts in these situa-tions is to determine which right has the priority. In this way, the courts’ importance is emphasized because they interpret written rules practically. Srdić emphasizes that “the application of all international norms regarding human rights largely depends on the interpretation of standards they contain.”

The third chapter thoroughly examines the role of courts when interpreting the right to freedom of expression. In the first text, Mladen Srdić considers basic stan-dards of practice of the European Court of Human Rights. Generally, the author claims that “the jurisprudence of the Court developed and from a rather conserva-tive approach which provides states with more authorizations it turned into a more liberal approach which gives less discretion to courts when putting restrictions on freedom of expression.” The author constantly emphasizes that public officials and politicians should demonstrate a greater level of tolerance when it comes to criticism of their work than regular citizens. Here, the author mentions three im-portant standards adopted by the European Court: (1) distinction between facts and opinions, (2) establishing the balance between the right to freedom of expres-sion and the right to protection of reputation as well as the obligation of practice of responsible journalism, (3) establishing the proportionality between damage caused by defamatory expressions and measures imposed on liable persons. Be-side this, Srdić also writes about journalists’ right to not disclose their sources of information unless it is justified by “a priority need of public interest.” Even in this case, “such needs or interests must have the balance with the need of protecting journalistic sources as a part of protection of freedom of expression.”

In the following text, Sevima Sali-Terzić examines general standards and the prac-tice of the Constitutional Court of B-H when considering cases referring to free-dom of expression. The author emphasizes that this Court is the ultimate authority for analyzing a possible violation of freedom of expression in B-H because “it has the authority of appeal regarding the matters contained in this Constitution when they become the subject of a dispute before any court in Bosnia and Herzegovina.” The author shows that the Constitutional Court of B-H follows the same principles as the European Court of Human Rights when discussing cases related to free-dom of expression. Sali-Terzić particularly elaborates on the rule which requires conducting the test of “necessity in a democratic society” which demands that, when deciding on whether there was a violation of Article 10 of the European

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Convention, it is assessed “whether the interference of domestic authorities in this freedom corresponds to ‘an urgent social need’, whether it is proportional to a le-gitimate goal which is to be achieved and whether the reasons and justifications for such interference given by the authorities are relevant and sufficient.”

In the third text of this chapter, Mladen Srdić writes about the treatment of public figures and consequences of matters of public interest. The author emphasizes that there are quite equalized positions of both legal theory and practice in this field. Main conclusions state that political debates enjoy the highest level of protection as well as that politicians and other public figures voluntarily entered public sphere hence their boundaries of accepting criticism must be wider than those of ‘regu-lar’ individuals. When referring to matters of public interest, journalistic freedom in-cludes a possible exaggeration and even provocation. This means that it is necessary to determine whether an issue is in fact a matter of public interest. On the other hand, the private life of politicians should be covered in a less polemical manner even when information about their private life is already available to the public.

The fourth chapter speaks about the normative framework of the right to infor-mation in B-H, as well as about the laws on free access to information. Mirjana Nadaždin-Defterdarević considers the laws that define public information at vari-ous levels in B-H. The author claims that “distribution of authorizations stipulated by the Constitution and the lack of every common normative base were the as-sumptions for newly created provisions which are not equalized.” While Republika Srpska arranges this field on the basis of a strict decentralization, in the Federa-tion of B-H there are no legal provisions at entity level instead this authorization is entrusted to cantons. However, not all cantons have passed adequate laws and those that have - arranged this field in very different ways. It is interesting that these laws were not passed at the initiative of international community in B-H or under its pressure. The author states that “types of penal provisions contained in cantonal laws in the best way illustrate the actual relation of government and me-dia, discriminating the media based on the manner in which they present political information with readiness of always sanctioning the media more conscientiously thank a state boy which, for example, deprives the media of information that was requested.” Also, in spite of the fact that the international community was not in-cluded in creating the law, domestic legislators did not fail at the imitation. This is how three cantonal laws are in fact “a reception of the Law on Public Information of the Republic of Croatia.”

Mehmed Halilović writes about free access to information acts and states that, in spite of certain shortcomings, they are mainly based on the highest interna-tional standards. The main principle of these laws is that the public has the right to access to information owned by public authorities/bodies “to the greatest ex-tent possible in line with public interest.” The access to this information has three main goals: it encourages the openness of authorities, advances democracy and

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contributes to the fight against corruption. The access to information can be lim-ited only in three cases: (1) if it is expected that disclosing information can cause a significant damage to legitimate functions of the government, (2) in order to protect commercial interests of a third party and (3) in order to protect personal interests and the privacy of a third party. In any case, the information contained in one of these three protected categories is not automatically exempted from dis-closure, as public bodies are required to conduct the public interest test in order to consider whether disclosure of such information is justified by public interest. Halilović writes that the most serious problem in practice is the lack of compliance with other laws that exclude or significantly reduce the right to free access to in-formation and the fact that there are many such laws at both entity levels and at the level of the state of Bosnia and Herzegovina.

The fifth chapter discusses defamation. Mladen Srdić and Mehmed Halilović give a detailed picture of the very legislative framework in force in B-H, as well as of general principles found in judgments of the European Court of Human Rights. Beside this, the authors give an overview of court practice in B-H and in the region. The legislative framework of B-H covers all the important principles defined by the European Court of Human Rights. These laws decriminalized defamation and they established civic liability in lawsuits and the possibility of compensation for damage in cash. The protection of national symbols and public officials was abro-gated, the authorities are not allowed to sue media outlets and journalists and the balance between the right to freedom of expression and protection of reputation and dignity of a person was established. Laws encourage professional conduct of journalists and ensure full protection of journalistic sources.

By analyzing court practice, the authors emphasize that, in the past ten years, when laws on defamation came into force, this practice brought a lot more posi-tive than negative experiences. As a contribution to this, the authors say that now there are a lot less lawsuits, that demands for compensation are a lot more mod-erate and that the number of judgments where the statement of claim was ac-cepted is not bigger than 30% compared to the number of lawsuits. On the other hand, the authors advise journalists to pay special attention to the accuracy of quoted and disseminated information as well as to the authenticity of the source of information. Also, it is recommended to journalists that they clearly provide the source of information as well as to provide the right to response of the party to which expression refers in case there is a dispute.

The sixth chapter consists of three texts that cover the relation of media and judi-cial system. In the first text, the author, Sevima Sali-Terzić, writes about the judicial system and its authorities at the level of B-H, and at the levels of FB-H, RS and Brčko District, and then she gives a schematic overview of protection of rights in lawsuits regarding defamation and libel as well as the procedures stipulated by Communication Law.

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The author notices that, in spite of the distribution of authorizations for regulating the protection against defamation, procedural protection is the same in all three administrative-territorial parts within B-H and implies that, at the first instance of lawsuits related to protection against defamation, there are municipal, that is, ba-sic courts, and then there are also courts of second instance for appeals: cantonal courts in FB-H, county court in RA and the Court of Appeal in BD. When it comes to special cases, the system of protection also includes the authorization of the Supreme Court of RS or FB-H, respectively the Court of Appeal in BD, as well as addressing the Constitutional Court of B-H, and finally, the European Court of Hu-man Rights. In the case of media disputes based on Communication Law, the au-thor states that even though it provides the Communications Regulatory Agency with authorization of sanctioning violations of electronic media in administrative proceedings, the appeal involves the Court of B-H and in some cases the appeal can be made firstly before the Constitutional Court of B-H and then the European Court of Human Rights.

In the other two texts of this chapter, Mladen Srdić speaks about the burden of proof in lawsuits and the protection of authority and impartiality of courts in or-der to ensure its function in society. Srdić considers the dilemma of whether the burden of proof belongs to the defendant or the plaintiff. The author believes that it would be wrong to place this burden exclusively on the plaintiff and claims that there should be a tendency of equally distributing the burden of proof. The prin-ciples of journalistic profession require verification of facts before they are pub-lished. Therefore, a court should determine whether there have been reasonable efforts to realize this principle. However, journalists cannot be asked to prove the absolute truth because at the moment of publishing information it is enough to prove it true in line with circumstances and standard journalistic attention.

Regarding the limitation of freedom of expression with a goal of protecting the judi-cature, Srdić highlights that media reporting on cases which courts are not dealing with must not jeopardize the authority and impartiality of judicature and it is pre-cisely because of the protection of the role of judicature that freedom of expression is sometimes limited so as to avoid possible pressures on judicature. Therefore, it is not about preventing criticism, but about observing these cases in the light of maintaining the undisturbed work of courts. It is important to mention freedom of expression of judges by quoting the case when the European Court concluded that freedom of expression is also applied to the position that one holds.

The seventh chapter written by Amer Džihana and Mladen Srdić speaks about the privacy in media. At the beginning, the chapter discusses relevant articles of the European Convention that refer to privacy and then cases dealing with privacy in Europe and in B-H. The author especially emphasizes that the ques-tion of privacy in B-H is not regulated by one specific law. Instead, its elements are found in several laws such as the Law on Protection of Private Data in B-H

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or the Freedom of Access to Information Act. The authors highlight that the re-lation between the right to privacy and the right to freedom of expression is rather delicate and they point at the need of conducting the public interest test in order to determine whether certain intrusions into privacy are justified by public interest. What is and what is not public interest is the question to which both journalists and editors answer but also regulatory and self-regulatory bod-ies, the public and finally the courts. Regarding media violations of the right to privacy in B-H, the authors conclude that such violations occur very often and that there is a disproportion between the frequency of violation of this right and the number of appeals to (self-)regulatory bodies and courts which possibly indicates to the inefficiency of existing mechanisms of protection of this right.

In the eighth chapter, the author, Sevima Sali-Terzić, speaks about the limitations of freedom of media due to national security and about achieving balance between the right to information and protection of certain data in order to ensure national se-curity. When it comes to international principles related to this matter, the Johannes-burg Principles are particularly important as they give more advantage to the right to information. On many occasions, international bodies quoted these principles and stated that only certain information can enjoy full protection from publishing and only for a certain period of time. Criminal codes at all levels of B-H include dis-closure of secrets and state that all citizens can be prosecuted for this felony hence journalists are covered by this, too. In this sense, criminal codes are restrictive and require journalists to reveal their sources of information; this could jeopardize inves-tigative journalism while the public trust would become lower due to the fact that access to information of public importance is not enabled.

There are two texts in chapter nine. In the first text, Helena Mandić discusses the regulation of electronic media. The chapter starts with the very beginning of regulation of broadcasting in B-H, the establishing the Communications Regula-tory Agency, the passing the Communication Law and the way frequencies are awarded. The text gives main characteristic of the Law as well as of adminis-trative bodies of the CRA. Financial issues are particularly important when they impede the Agency from acting as an independent regulator. Beside this, rules and codes issued by the Agency have a special place in this chapter, along with the overview of sanctions. The author shows that the rules of the CRA are in line with EU regulations. Based on the historical overview of rule violations, Mandić concludes that, in the first three years of the Agency “the cases mainly referred to the violations of the Code on Broadcasting RTV Program, whereas later on, most violations were related to the obligation of respecting the copyright and the Code on Advertising and Sponsorship.” The following period brought along a lower number of cases related to hate speech. The author believes that year 2002 was pivotal: “Compared to previous years, since 2002 there has been a de-crease of the trend of violations of provisions related to hate speech, respect of

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ethnic, cultural and religious diversity as well as abandoning programs which carried the risk of causing ethnic or religious hatred or public damage.”

In the second text of the chapter, Amer Džihana writes about legislative frame-work that regulates the system of public broadcasting in B-H. The author empha-sizes that legislative design includes four basic characteristics of this system: au-tonomy, coordination, similarity, and interdependence. Still, in practice, most of these provisions are applied in a manner in which the status quo is maintained. Hence, the very legislative framework is described as complicated, incomplete, and dysfunctional.

In the tenth chapter, the author, Vanja Ibrahimbegović-Tihak, writes about ethical standards of journalism, regulated by certain rules and regulations. These regula-tions are provided by regulatory and self-regulatory bodies, and by some journal-istic associations. More precisely, there are the regulations given by the Commu-nications Regulatory Agency, the Press Council of B-H and the association of B-H Journalists. These bodies place a special focus on the protection of privacy, protec-tion of children and minors, and the ban of hate speech. The author notices that the respect of human rights and freedoms in the B-H media could be improved through a better understanding of the function of regulatory and self-regulatory bodies and that the codes of ethics must be ensured by an independent system that would follow journalistic and editorial work.

The eleventh chapter of author Šejla Jusufović speaks about media ownership concentration at both European and domestic level. The regulation of this field was created in order to protect an efficient media production through fair com-petition at the market level and to ensure a democratic communication system through ensuring the pluralism of ideas and opinions in the media. Even though the media market of the EU shows an increase in concentration, the author con-cludes that the media market in B-H is not too concentrated, but that it is neces-sary to create a specific and adequate legal framework for this field.

This is a public debut of the B-H Primer, but this is not its last appearance before the public. As it is posted on the website of Internews B-H along with numerous links to relevant contents and sources, the B-H Primer is open to all comments, suggestions, and new additions. Of course, the print edition is the first one and the authors hope that the following editions will be more complete and up to date.

We invite all visitors and users to contact us, to give their suggestions and to help us contribute to enriching new editions of B-H Primer.

Chapter 1

A LEGAL ENABLING ENVIRONMENT FOR NEWS MEDIA ACTIVITY

GENERAL CONDITIONS FOR THE ACTIVITIES OF FREE MEDIALibby Morgan

News media do not operate in a political and social vacuum. In order to operate freely and in a publicly beneficial manner, they must carry out their activity with-in a favorable legal setting, which we will call a “legal enabling environment.”

Before we consider the core components of a legal enabling environment for news media activity, we must note that the development of such a setting requires the existence in a legal system of two pre-conditions: recognition of what we will call “free press values”; and a commitment to the values of the “rule of law.”

PRECONDITIONS FOR A LEGAL ENABLING ENVIRONMENT

I.Free Press Values Recognition of press freedoms is viewed as essential for the well-being of systems of democratic governance. As stated by the European Court of Human Rights in its landmark 1986 decision in Lingens v. Austria, freedom of expression “constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfillment,” and “[t]hese principles are of particular importance as far as the press is concerned.”1

News media rights are not absolute; the conduct of news media activity—the gathering of facts and the various editorial tasks associated with the prepa-ration of information and ideas for public dissemination—is limited to some extent to advance countervailing individual and societal values. The legal en-abling environment describes which governmental acts constitute an improp-er interference with a fundamental rights structure. For example, defamation laws represent a commitment to protection of individual reputation—an im-portant societal value inherent in recognition of the dignity of each person. At the same time, however, the imposition of legal sanctions for statements deemed defamatory will place burdens on the freedom of expression. A legal enabling environment will be sensitive to this dynamic, balancing both sets of interests.

1 Lingens v. Austria (9815/82), 8 July 1986, paragraph 41, at: http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 21 March 2012).

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II. Rule of Law

The effective implementation of that balance is not possible without a societal commitment to the “rule of law.” There are many formulations of this concept. Here, we use the phrase to describe a legal system that combines two essen-tial attributes: the promise of legal certainty and a commitment to fundamental fairness for all its participants.

Both of these attributes are essential to a legal environment that enables the ex-ercise of news media activity and the accompanying public benefits. One of the gravest threats to the public benefits of functioning news media is the risk that journalists will engage in self-censorship if they perceive that the legal system is uncertain and unfair.

Four essential components of the rule of law can be identified:

1. Clear and aCCessible legal rules

The only enforceable legal rules must be those that have been adopted pursuant to systematic procedures, are clear as to their meaning, and are accessible to the public. If executive branch authorities are permitted to enforce non-transparent rules known only to themselves, the essential values of predictability and fairness will be lacking.

2. PubliC authority bound by law

All administrative acts of public institutions must be based solely on legal norms, and must be consistent with them. In applying the laws, public officials must not act arbitrarily or outside the boundaries of the laws.

3. Fundamental Fairness in administrative and judiCal ProCedures

All participants in the administrative process must be subject to the same generally-applicable rules and procedures. One source for a listing of fundamental fairness requirements is Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which is considered an international binding treaty.2 Article 14 provides that “all persons are equal before the courts and tribunals,” and mandates, inter alia, that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

4. an indenPendent, eFFeCtive judiCiary

The judiciary cannot be simply another branch of the state’s administrative apparatus. Instead, judges must possess the independence, jurisdiction, and willingness to exercise meaningful review of the legality of governmental acts, and the legal culture must be one in which such decision-making is respected and obeyed.

2 Yugoslavia signed the ICCPR on 8 August 1967 and ratified it on 2 June 1971; Bosnia-Herzegovina became a succession State Party to the Covenant as of 1 September 1993.

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FUNDAMENTALS OF FREE MEDIA AND JOURNALISM

Media freedom can thrive only in a democratic society where other relevant freedoms are secured, such as peaceful assembly and voluntary membership of organizations.

On a more basic level, the fundamentals of free and independent media and journalism can be described as follows:

1. Freedom oF issuing newsPaPers and PubliCations

If newspapers and publications are burdened with requirements such as prior licensing and statutory capital requirements, the press is not completely free. In most democratic countries, a newspaper or other publication can be established without acquiring a license or governmental approval.

2. indePendenCe oF broadCast liCensing and regulation

Licensing requirements apply most everywhere for radio and television broadcasting. These requirements are justified by the need to ensure that scarce radio frequencies used for broadcasting are given to those broadcasters that comply with certain content, programming and technical requirements, and by the need to prevent technical interference among broadcasters.

In most democratic societies, broadcast licenses are granted and regulated by bodies independent of the government, meaning that their governance structures are appointed, and their financing is structured, in such a way as to prevent undue influence by any one part of the government.

3. Prohibition oF all Forms oF Pre-PubliCation or Pre-broadCast CensorshiP

Prior censorship—where the government determines what can and cannot be published in advance of publication—is one of the most serious constraints on freedom of expression, in both broadcasting and print media. This prohibition does not preclude the possibility of prosecuting the media after publication or broadcasting.

4. Freedom oF aCCessing, obtaining and CirCulating inFormation

The right to access information, particularly from the government, has become a central element of freedom of opinion and expression and freedom of the press. In order to fulfill their role as government watchdogs and encourage discussion and deliberation on issues of public concern, journalists must have easy access to information.

Notwithstanding the above, there are exceptions to the right to circulate information. Many countries, for instance, prohibit publishing information that would undermine national security, would harm the country’s international relations, or would expose military secrets during periods of war. Under international law, these restrictions are limited.

Similar limitations are stipulated by Freedom of Access to Information Act in B-H which also provides specific conditions. There will be more about this in Chapter 4.

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Chapter 2

FREEDOM OF EXPRESSION –NORMATIVE FRAMEWORK

CONSTITUTIONAL AND LEGAL FRAMEWORK ENSURING FREEDOM OF EXPRESSION Mehmed Halilović i Mirjana Nadaždin-Defterdarević

In line with the Peace Agreement signed in Dayton, USA in 1995, Annex IV of the Constitution of Bosnia and Herzegovina,1 the entities have authority over the media and public information, and additionally, the cantons in the Federation of Bosnia and Herzegovina.

However, the state of Bosnia and Herzegovina (B-H) has both constitutional and legal surety of freedom of expression, additionally enhanced by the acceptance of international conventions and declarations on human rights. This means that international conventions on the protection of freedom of expression are an integral part of domestic law.

The Constitution of Bosnia and Herzegovina2, just as the constitutions of both entities, explicitly states that “the rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina” and that they “have priority over all other law.”

The Constitution of Federation of B-H3, Annex named “Instruments for the protection of human rights which have legal power of constitutional provisions,” lists twenty one international conventions and declarations, among which there is the Universal Declaration of Human Rights (UN), the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the 1996 International Covenant on Civil and Political Rights. The Constitution of Republika Srpska4 does not mention international conventions, resolutions and declarations individually.

As a member of the Council of Europe, Bosnia and Herzegovina also accepted all international legal standards established by the European Court of Human Rights, as well as numerous recommendations and declarations of the Council of Europe.

1 The General Framework Agreement for Peace in Bosnia and Herzegovina – Dayton Peace Agreement, Annex 4: Constitution of Bosnia and Herzegovina (Paris, 14 December 1995), entered into force on 14 December 1995, at: http://www.ohr.int/dpa/default.asp?content_id=379 (accessed 21 March 2012).2 Constitution of Bosnia and Herzegovina, OHR – Office of the High Representative, at: http://www.ccbh.ba/public/down/USTAV_BOSNE_I_HERCEGOVINE_bos.pdf (ac-cessed 21 March 2012).3 Constitution of the Federation of Bosnia and Herzegovina (Sarajevo, 30 March 1994), Of-ficial Gazette of FB-H No.1/94, entered into force on 30 March 1994, at: http://skupstina-bd.ba/ustavi/f/ustav_federacije_bosne_i_hercegovine.pdf (accessed 21 March 2012).4 Constitution of Republika Srpska (1992), Official Gazette of RS No. 28/94, entered into force in 1994, at: http://www.ustavnisud.org/upload/4_8_2009_48_ustav_srpski.pdf (accessed on 21 March 2012).

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However, due to the untypical constitutional order that was established in the Dayton Peace Agreement, legislative framework for realization of free work of media and the right to freedom of expression represents a very complex network of institutions, norms, and practices. There are fourteen constitutions in total (one at the state level, two at entity level, one in Brčko District and one in each of the ten cantons) in addition to many laws that, directly or indirectly, influence the work and activities of media organizations and of numerous sublegal acts and regulations.

All constitutions and laws contain provisions ensuring freedom of expression.

Article II, paragraph 3, point (g) of the Constitution ensures “freedom of thought, conscience and religion” and, in point (h), ensures “freedom of expression.”

The constitutions of two entities contain such provisions as well.

The Constitution of Federation of B-H mentions human rights and freedoms in chapter II, Article 1, and ensures fundamental freedoms including “freedom of speech and press and freedom of opinion, conscience and belief…”

The Constitution of Republika Srpska is more substantial and precise in this regard. Part II (Human Rights and Freedoms), Article 25 states that “freedom of thought and orientation, conscience and conviction, as well as of public expression of opinion shall be guaranteed.” Additionally, Article 26 emphasizes that “freedom of press and other media of communication shall be guaranteed,” and that “free establishment of newspaper and publishing houses, publishing of newspapers and public information by other media in accordance with law shall be guaranteed.” The same article also states that “censorship of press and other public information media shall be forbidden,” and that “public information media shall be obliged to inform the public on time, truthfully and impartially.” The Constitution of RS also provides the right to correction of “incorrect information to anyone whose right or legally determined interest has been violated, as well as the right to a compensation for damage arising therefrom.”

As previously stated, freedom of expression is ensured by domestic laws. The Law on Protection against Defamation, the text of which is almost the same in both entities and the Brčko District, contains this paragraph: “The right to freedom of expression, as it protects both the contents of an expression and the manner in which it is made, is not only applicable to expressions that are received as favorable or inoffensive but also to those that might offend, shock or disturb.” The article that follows states that “this Law shall be interpreted so as to ensure that the application of its provisions maximizes the principle of the freedom of expression.”5

5 Law on Protection against Defamation of RS (Banja Luka, July 2001), Official Gazette of RS No. 37/01, entered into force on 1 August 2001; Law on Protection against Defamation of FB-H (Sarajevo, 2002), Official Gazette of FB-H No. 59/02, entered into force in 2002; Law on Protection against Defamation of Brčko District B-H (Brčko, 2003), Official Gazette of Brčko District of B-H No.14/03, entered into force in 2003. All laws found at: http://www.vzs.ba/index.php?option=com_content&view=category&id=9&Itemid=12. (accessed 21 March 2012)

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Such formulation of protection of freedom of expression does not refer only to journalists and media, but to every person.

The protection of freedom of expression is also ensured by laws on public information (in Republika Srpska), that is laws on media and public information in cantons of the Federation of B-H (they exist only in six out of ten cantons). Additionally, they list the basic principles of Article 10 of the European Convention for the Protection of Human Rights and Article 19 of the Universal Declaration of Human Rights.

Article 4 of the Communication Law emphasizes that “The regulatory principles of broadcasting shall include the protection of freedom of expression and diversity of opinion while respecting generally accepted standards of decency, non-discrimination, fairness, accuracy, and impartiality.”6

LEGISLATIVE ACTIVITIES OF INTERNATIONAL COMMUNITY

Legislative actions in the field of right to information in Bosnia and Herzegovina have a strong mark of the normative activities of High Representative for Bosnia and Herzegovina. Namely, Article 5 of Annex X (of the Agreement of Implementation of Civil Part of Peace Accords) of General Framework Agreement for Peace in Bosnia and Herzegovina prescribed that High Representative is the final authority in the country with regard to the interpretation of the abovementioned Peace Agreement7.

Article II 1 (d) of the Agreement states that the High Representative “provides help, when he/she finds it necessary, for solving all problems that may occur and that are related to civil implementation.” Using the given authority and acting based on concrete conclusions of Peace Implementation Council8, due to inefficiency of local authorities and their incapability of regulating matters in the domain of the right to information, the High Representative passed 17 decisions between 1998 and 2002. Among them, the most important are:

• Decision on the establishment of the Independent Media Commission (IMC) (1998), and

• Decision on the appointment of members of the Council IMC (1998),

• Decisions on the restructuring of the Public Broadcasting System in B-H and on

6 Communication Law (Sarajevo, 2 September 2003), Official Gazette of B-H No. 31/03, entered into force on 21 October 2003, Article 4, at: http://www.rak.ba/bih/index.php?uid=1269443180 (accessed 21 March 2012).7 Dayton Peace Agreement.8 Conclusion of the Peace Implementation Council: Political Declaration from Ministerial Meeting of the Steering Board of the Peace Implementation Council (Sintra, 30 May 1997), enteres into force on 30 May 1997, at: http://www.ohr.int/pic/default.asp?content_id=5180 (accessed 21. March 2012).

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freedom of information and decriminalization of libel and defamation (30. 7. 1999.),

• Decision amending the Law on Radio-Television of the RS (1999),

• Decision on the implementation of the Law on Radio-Television of the Federation (199.),

• Second Decision on restructuring the Public Broadcasting System in B-H (2000),

• Decision Combining the Competencies of the Independent Media Commission and the Telecommunications Regulatory Agency (2001), and later Decision appointing new members to the Council of the Communications Regulatory Agency (CRA) (CRA) of 29. 11. 2001.

• Decision Imposing the Law on Radio-Television of Republika Srpska (24. 5. 2002.),

• Decision Imposing the Law on Radio-Television of the Federation of Bosnia and Herzegovina of 24. 5. 2002.,

• Decision Imposing the Law on the Basis of the Public Broadcasting System and on the Public Broadcasting Service of Bosnia and Herzegovina of 23. 5. 2002.

Decisions of High Representative, along with all controversies related to their legal nature, were extremely important regarding the realization of the right to information. Due to the authority and power of the person who made them, these decisions efficiently removed political obstacles and established normative standards adequate for current solutions in Europe and in the world.

The activities of the High Representative were significant for the realization of the right to information even though they were particularly obvious and directed at electronic media which was expressed equally to the aspect of passing regulations, their supervision and conduction. This was confirmed by passing the Law on Protection against Defamation in entities and Brčko District9 and the Freedom of Access to Information Act at both state and entity

9 Decision on freedom of information and decriminalization of libel and defamation, which was issued on July 30, 1999, was based on authorizations provided by Article 5 of Annex X of the General Framework Agreement for Peace in Bosnia and Herzegovina. It was particularly based on Article II 1. (d) of this Agreement which provides the High Representative with authorization to help overcome difficulties in cases when he/she finds it necessary, consider-ing the application of civil part of the agreement which was additionally strengthened by Conclusions at the Bonn Conference for Peace Implementation in line with Madrid Declara-tion, Chapter V, section 24 which asks the government of B-H to adopt the laws protecting the freedom of information and particularly freedom of expression and movement of jour-nalists, and to provide public with a greater access to information owned by the authorities after the conclusion that legal regulations at the time did not provide this. Law on Protection against Defamation of the Federation of B-H, Official Gazette of FB-H 59/02 and 73/05; Law on Protection against Defamation, Official Gazette of RS 37/01; Law on Protection against Defamation, Official Gazette of Brcko District 14/03.

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levels10, as well as by establishing the Independent Commission for Media and the Telecommunications Regulatory Agency which later merged into the Communications Regulatory Agency. The Communication Law, passed later on, provided very detailed norms regarding the issues of the Communications Regulatory Agency. Article 46 of the Communication Law is particularly important as it regulates executive authorizations of the Agency in line with European regulatory practice. Precise normative solutions brought consistent practices of the Agency related to the realization of the principles prescribed by Article 4 of the Law in order to protect and exercise freedom of expression. The status of the Agency was to a great extent a result of the authority of its founder, the High Representative, and the consistent respect of its rules.

What came before another important set of laws was the Decision on freedom of information and decriminalizing libel and defamation, created by the High Representative in order to eliminate their discouraging effect in the sphere of information which basically made trial for a so called ‘tort of opinion’ possible. Laws on protection against defamation in both RS and FB-H stipulate civic liability for damage caused to the reputation of legal or private person by stating false facts. Provisions of these laws will be interpreted “in such way… that they ensure the principle of freedom of expression to the greatest extent possible.“11

Passing the Freedom of Access to Information Act was motivated by easing the realization of right to information. The Act was created in order to make almost all information owned by authorities public, with rare exceptions. Although the domain of this Act was already covered by the content of some cantonal laws on freedom of information12, passing it was necessary and justified with the goal of having joined norms related to obligation of publishing information controlled by public body as lex specialis. B-H was the first country in the region that passed such law but the results coming out of its application are not satisfactory. Shortcomings of this Act are the result of inefficient mechanism of implementation and the fact that there are no concrete criminal provisions. The latter came out of the Law on Amendments of the Freedom of Access to Information Act in B-H13, which determined fines for criminal

10 Freedom of Access to Information Act in B-H (Sarajevo, October 2000), Official Gazette of B-H No. 28/00, entered into force on 17 November 2000. Law on Ammendments of the Freedom of Access to Information Act in B-H (Sarajevo, 2006), Official Gazette of B-H No. 45/06, entered into force in 2006; Freedom of Access to Information Act in FB-H (Sarajevo, July 2001), Official Gazette of FB-H No. 32/01, entered into force on 24 July 2001; Freedom of Access to Information Act in RS (May 2001), Official Gazette of RS No. 20/01, entered into force on 18 May 2001.11 See provisions of Article 2 of the Law on Protection against Defamation of FB-H and Article 3 of the Law on Protection against Defamation of RS.12 See: Law on Public Information of Tuzla Canton (Tuzla, 2 November 2000), Official Gazette of Tuzla Canton 15/00, entered into force in 2000, Article12-17.13 Law on Amendments of Freedom of Access to Information Act in B-H (Sarajevo, December 2009), Official Gazette of B-H No. 102/09, entered into force on 15 December 2009.

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acts, that was supposed to make the application of the Act stronger. In addition, the position of the Freedom of Access to Information Act is jeopardized by passing some other laws which place limitations on rights in its domain thus proclaiming themselves lex specialis in relation to the Act itself14, degrading its role and purpose.

14 At state level these are: Law on Protection of Personal Data of B-H (Sarajevo, December 2001), Official Gazette of B-H No. 32/01, entered into force on 28 December 2001; the Law on Protection of Secret Data of B-H (Sarajevo, July 2005), Official Gazette of B-H No.54/05, entered into force in 2005; the Law on Intelligence Services of B-H (Sarajevo,2004), Official Gazette of B-H No.12/04, entered into force in 2004.

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INTERNATIONAL CONVENTIONS AND AGREEMENTS IN THE LEGAL SYSTEM OF B -HMladen Srdić

Freedom of opinion and expression is one of the fundamental civil and political rights and it has been built into international instruments referring to human rights. Without ensuring the freedom of opinion and expression there is no true democracy in a modern society. The essence of freedom of expression is in the public, meaning that what one person knows and thinks can be freely conveyed to the others.

The Preamble of the Constitution of B-H cites the Universal Declaration of Human Rights1 and pacts related to civil and political rights2, as well as to economic, social and cultural rights3 according to Article 2, paragraph 2 of the Constitution of B-H4, European Convention on Human Rights are directly applied in Bosnia and Herzegovina, and their application has priority over all other laws. Also, Annex 1 of the Constitution establishes the list of 15 international agreements and conventions in the field of human rights which are to be applied in Bosnia and Herzegovina.

Along with the rights contained in international agreements which have the value of constitutional rights, the Constitution lists 13 fundamental rights. Among these rights there are freedom of thought, consciousness and religion and freedom of expression. All these rights are guaranteed without discrimination.

The European Convention on Human Rights5 occupies a special position in the application of international documents mentioned above, which is the obligation of all organs in Bosnia and Herzegovina (therefore, not only of courts) that is prescribed by the Constitution. The Constitution states that the application of European Convention will have priority over all other laws and the Federation of B-H, Republika Srpska and Brčko District B-H ought to fully respect the accepted international standards.

1 Universal Declaration of Human Rigths (Paris, 10 December 1948) 217 A (III), entered into force on 10 December 1948. 2 The International Covenant on Civil and Political Rights (New York, 7 March 1966) 660 U.N.T.S. 195, 5 I.L.M.352 (1966), entered into force 4 January 1976. 3 International Covenant on Economic, Social and Cultural Rights (New York, 10 December 1966), entered into force 3 January 1976, at: http://www2.ohchr.org/english/law/cescr.htm (accessed 18 May 2011). 4 Constitution of Bosnia and Herzegovina, OHR – Office of the High Representative, Article 2, paragraph 2, at: http://www.ccbh.ba/public/down/USTAV_BOSNE_I_HERCEGOV-INE_bos.pdf (accessed 21 March 2012). 5The Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950), entered into force 3 September 1953.

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The European Convention was therefore directly implemented into the local legal system years before the membership of B-H in the Council of Europe.

As a universal act, the European Convention can be applied properly only if there is familiarity with the decisions of the European Court. Therefore, the text of the Convention cannot be read outside its court practice. The application of the Convention hence functions on the basis of the system of precedent law and judgments of the European Court of Human Rights, which explain and interpret the text of the Convention. They represent binding precedents and according to legal status, they are binding legal norms. Precisely because of this, once the Convention is ratified, local authorities of all signatory states, including the ones where legal system is based on continental law, have to treat the judgments of the Court of Human Rights as binding laws. In that sense, it has to be understood that even the legal systems which are traditionally continental apply the mixture of continental and precedent laws.

The main responsibility for the protection of rights determined by the Convention is placed on signatory states and not on the organs of the Council of Europe. The degree of discretion the court gives to one state is based on European standards. The principle of the degree of discretion of the court is applied in different ways so that the degree of discretional rights given to states varies depending on the context. This is how, for example, one state has wide discretional rights in emergency situations given by Article 15, or in the cases which are not too similar to the situations occuring in signatory states, whereas this discretional right almost does not occur when it comes to issues such as the protection of freedom of expression.

THE MOST IMPORTANT INTERNATIONAL SOURCES

• Universal Declaration of Human Rights – proclaimed by the United Nations General Assembly in 1948 6

Article 18Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

6 Universal Declaration of Human Rigths, The Office of the High Commissioner for Hu-man Rights, http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=src1 (accessed 17 May 2011).

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• The African Charter on Human and Peoples’ Rights was adopted by the Organization of African Unity in Nairobi on 27 June 1981, and it entered into force on 21 October 1986. 7

• The American Convention on Human Rights was adopted on the conference of the Organization of American States in San José on 22 November 1969, and it entered into force on 18 July 1978. 8

• The International Covenant on Civil and Political Rights – adopted by the Resolution of United Nations General Assembly in 1966, came into force on 23 March 1976.

Article 19

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

a) For respect of the rights or reputations of others;

b) For the protection of national security or of public order, or of public health or morals.

• The Convention for the Protection of Human Rights and Fundamental Freedoms, which is the instrument of the Council of Europe, was signed in Rome on 4 November 1950, and it entered into force on 3 September 1953.9

Article 10 of the European Convention:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

7 The African Charter on Human and Peoples’ Rights (Banjul, 27 June 1981), CAB/LEG/ 67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 October 1986.8 The American Convention on Human Rights (San José, 22 November 1969), entered into force 18 July 1978.9 The European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950), entered into force 3 September 1953.

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2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

ROLE OF EUROPEAN COURT OF HUMAN RIGHTS IN THE APPLICATION OF CONVENTION

The Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter the Convention) is the most important European international document in this field. Its importance lies mainly in the system of implementation of its decrees. The decrees found in the Convention state that the countries ought to ensure human rights for everyone under their authority (that is, under their jurisdiction), and the legal users of this obligation are individuals. In the Convention, Article 1 forms this obligation by stipulating that High parties of the contract guarantee for all individuals under their jurisdiction the rights and freedoms established in the Part I of the Convention.10

Therefore, the Convention determines the content of rights and freedoms and provides international protection in the case of violations, by introducing the most complete system of protection in the form of European Court of Human Rights.

From 1959 until 1998, the European Court of Human Rights11 operated as one of the three institutions of the Council of Europe (European Commission of Human Rights12, the Committee of Ministers of the Council of Europe13 and European Court of Human Rights) for conducting the obligations of the Convention in signatory states.14 It was only in charge with making decisions regarding charges previously considered by the European Commission of Human Rights.

Since November 1998 (with the adoption of Protocol 11)15, the Court of Human

10 Ibid.11 European Court of Human Rights,at: http://www.echr.coe.int/echr/ (accessed 8 December 2011).12 European Commission of Human Rights, at: http://ec.europa.eu/ (accessed 8 December 2011).13 Committee of Ministers of the Council of Europe, at: http://www.coe.int/t/cm/home_EN.asp (accessed 8 December 2011).14 The Council of Europe, European Court of Human Rights: Facts and Statistics 1959-2009. April 2009, at: http://balkanshumanrights.org/bcms/wp-content/uploads/2010/02/Facts-and-Figures-1959-2009.pdf (accessed 17 May 2011).15 Protocol No. 11 of the Convention for the Protection of Human Rights and Fundamental

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Rights has been a permanent institution within the Council of Europe and it has been in charge of all the activities related to a certain type of conflicts, from making representations to making binding decisions for the state in question. Therefore, individuals have the option of going to the court. This extends the possibility of individuals turning to international bodies in the sense that they are actively legitimized participants in international legal proceedings. The Court of Human Rights acts only after the legal resources in member states are exhausted. Every person who considers their human rights to be violated can turn to the Court. The organization and the authorization of this court are prescribed by the Convention (Articles 19 – 5116), while the Court proceedings are governed by Operating Regulations17, which entered into force on 1 November 1998.

In the past fifty years, the Convention has also been developed by interpretations given by the European Commission of Human Rights, the European Court of Human Rights, and by the Council of Europe.

DECLARATIONS, RESOLUTIONS AND RECOMMENDATIONS OF THE COUNCIL OF EUROPE

The Council of Europe has adopted additional Protocols that extended the span of the Convention, resolutions and recommendations that developed and recommended standards of action for member states and imposed sanctions on the states that do not respect the decrees of the Convention. These are, among others:

• Declaration on the Freedom of Expression and Information18 (adopted by the Committee of Ministers on 29 April 1982, at its 70th session),

• Declaration on freedom of political debate19 (adopted by the Committee of Ministers on 12 February 2004),

• the Resolution of Parliamentary Assembly 1142 (1997) on parliaments and the media20,

Freedoms used to reconstruct the supervising mechanism which it established (Stras-bourg, 5 November 1994), CETS No.155, entered into force 11 January 1998, at http://con-ventions.coe.int/Treaty/en/Treaties/html/155.htm (accessed 8 December 2011).16 Supra note 517 The House of Justice – Strasbourg, European Court of Human Rights: Operating Regula-tions (Strasbourg 1 November 1998), at: http://kuca-pravde.org/poslovnik.html (ac-cessed 17 May 2011).18 The Council of Europe, Declaration on Freedom of Expression and Information (29 April 1982), at http://www.coe.int/t/dghl/standardsetting/media/Doc/CM/Dec(1982)FreedomExpr_en.asp#TopOfPage (accessed 21 March 2012).19The Council of Europe, Declaration on freedom of political debate (12 February 2004), http://www.cpm.edu.rs/code/navigate.asp?Id=90 (accessed 21 March 2012).20 The Council of Europe, Resolution 1142 on parliaments and the media (7 November

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• the Resolution of Parliamentary Assembly 1003 (1993) on the ethics of journalism21,

• the Resolution of Parliamentary Assembly 1165 (1998) on the right to privacy22,

• Resolution (74) 26 on the right of reply – the position of individuals in relation to the press23,

• the Recommendation of Parliamentary Assembly 1407 (1999) on media and democratic culture24,

• the Recommendation of the Committee of Ministers (2003) 13 on the provision of information through the media in relation to criminal proceedings25,

• the Recommendation of the Committee of Ministers No. R (97) 21 on the media and the promotion of a culture of tolerance 26,

• the Recommendation of the Committee of Ministers No. R (99) 15 on measures concerning media coverage of election campaigns27,

• the Recommendation of the Committee of Ministers No. R (97) 20 on ’’hate speech ’’28 and

• the Recommendation of the Committee of Ministers No. R (2000) 7 on the right of journalists not to disclose their sources of information.29

1997), http://www.cpm.edu.rs/code/navigate.asp?Id=79 (accessed 21 March 2012).21 The Council of Europe, Resolution 1003 on the ethics of journalism (1 July 1993), http://www.cpm.edu.rs/code/navigate.asp?Id=80 (accessed 21 March 2012).22 The Council of Europe, Resolution 1165 on the right to privacy (26 June 1998), http://www.cpm.edu.rs/code/navigate.asp?Id=81 (accessed 22 March 2012).23 The Council of Europe, Resolution (74) 26 on the right of reply – the position of individuals in relation to the press (2 July 1974), http://www.cpm.edu.rs/code/navigate.asp?Id=88 (accessed 22 March 2012).24 The Council of Europe, Recommendation 1407 on media and democratic culture (29 April 1999), http://www.cpm.edu.rs/code/navigate.asp?Id=77 (accessed 22 March 2012).25 The Council of Europe, Recommendation 2003 on the provision of information through the media in relation to criminal proceedings (10 July 2003), http://www.cpm.edu.rs/code/navigate.asp?Id=82 (accessed 22 March 2012).26 The Council of Europe, Recommendation No. R (97) 21 on the media and the promotion of a culture of tolerance (30 October 1997), http://www.cpm.edu.rs/code/navigate.asp?Id=83 (accessed 22 March 2012).27 The Council of Europe, Recommendation No. R (99) 15 on measures concerning media coverage of election campaigns (9 September 1999), http://www.cpm.edu.rs/code/navi-gate.asp?Id=84 (accessed 22 March 2012).28 The Council of Europe, Recommendation No. R (97) 20 on ’’hate speech ’’ (30 October 1997), http://www.cpm.edu.rs/code/navigate.asp?Id=83 (accessed 22 March 2012).29 The Council of Europe, Recommendation No. R (2000) 7 on the right of journalists not to disclose their sources of information (8 March 2000), http://www.cpm.edu.rs/code/navi-gate.asp?Id=87 (accessed 22 March 2012).

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These documents express the principles and directions for the members of the Council of Europe which are headed towards the democratization of freedom of expression. The Declaration on freedom of political debate in the media gives the principle ”public supervision of public officials” which makes public officials accept being supervised and criticized by the public especially through the media, regarding the way in which they carried out or carry out their function to the extent which is necessary in order to ensure transparency and responsibility in carrying out their function. The same declaration expresses the ”freedom of satire,” so that the humoristic and satirical genre receives protection through Article 10 of the Convention, allowing a greater degree of exaggerating and even provoking through speech as long as the public is not deceived when it comes to facts.

Therefore, the application of all international norms of human rights largely depends on interpretations of standards which they contain, that is, the concepts which are not defined by the text but the meaning of which is implied instead.

RESPONSIBILITY OF A STATE ACCORDING TO ARTICLE 10

Related to Article 10 of the Convention, member states of the Council of Europe have negative and positive obligations. The main obligation according to Article 10 is abstaining from illegal interference in the realization of the right to freedom of expression. State mechanisms ought to avoid any legal, judicial, or administrative interference with the right promoted by Article 10. As a general rule, according to Article 10 paragraph 1, all limitations of freedom of expression should be restrictively applied.

Positive obligations of one state refer to the fact that Article 10 also demands states to take positive measures in order to promote the right to freedom of expression. Although Article 10 is primarily concerning the regulation of activities of state organs, it is applicable to non-state organizations and private persons as well. The court demands states to take action when individual rights from Article 10 are endangered by non-state factors and omission to act can lead to interference according to Article 10.

Article 10, paragraph 2, says that interference of a state with the rights contained in Article 10, paragraph 1 has to meet the following criteria:

1. it has to be prescribed by law;

2. it has to be necessary in a democratic society;

3. it has to pursue legitimate goal in line with Article 10, paragraph 2 which taxativelly states the circumstances in which the right to freedom of expression of one person can be legitimately limited.

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These are the following circumstances:

• In the interests of national security, territorial integrity or public safety;

• For the prevention of disorder or crime;

• For the protection of health or morals;

• For the protection of the reputation or rights of others;

• For preventing the disclosure of information received in confidence and

• For maintaining the authority and impartiality of the judiciary.

Therefore, interfering with the rights contained in Article 10, paragraph 1, can be justified in case the state’s objective was to achieve one of the abovementioned legitimate goals. Limitations that do not belong to one of these categories will not be allowed and the interference will represent a violation of Article 10. When examining individual cases, the Court will, while assessing the facts, decide whether the interference happened in order to achieve one of the legitimate goals or not. Therefore, the limitations which state authorities apply on the realization of the right to freedom of expression cannot legitimately rely on bases outside the list given in paragraph 2 such as: “the reputation or the honor of a state or of a government,” “the reputation or the honor of a nation,” “state and other official symbols,” “the reputation or the authority of public organs” (except courts), which still sometimes happens in the practice of member states of the Council of Europe. The span of possible disturbances (formality, conditions, limitations or sanctions) in the realization of the right to freedom of expression is very wide and there are no predetermined boundaries.

Such types of disturbance by the authorities (hence formality, conditions, limitations, or sanctions) can be:

• Criminal judgment (with fine or imprisonment),

• Charging to pay for the damage in civil lawsuit (as it is in Bosnia and Herzegovina)

• Ban of publishing,

• Seizure of publication or some other means used to express one’s opinion or deliver information,

• Refusal to issue a work license for electronic media,

• Ban of working in journalism,

• Injunction of the court or some other organ to reveal journalistic source and/or sanctions if this is not done, etc.

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RELEVANCE OF ARTICLE 10 OF THE CONVENTION FOR ACTIVITIES OF THE MEDIA

Freedom of expression is a specific right but, at the same time, it is also a part of other rights protected by the Convention. Moreover, the freedom of expression can clash with other rights protected by the Convention such as the right to fair trial, the right to privacy, the right to beliefs and religion. When such clashes occur, the Court is supposed to establish the balance in order to determine which right will be treated as the primary one.

Right to privacy

The idea of having the realization of the right to freedom of expression carry obligations and responsibilities is unique in the Convention and cannot be found in any other decree regulating rights and freedoms. In that context, the right to freedom of expression can often clash with the right to privacy protected by Article 8 of the European Convention of Human Rights. Therefore, in 1998, the Resolution of the Council of Europe No. 1165 was adopted. The Resolution refers to the right to privacy, inviting member states to adopt laws guaranteeing the right to privacy in case they do not already have such laws, or to amend the existing laws and guarantee that, among others, the person whose right to privacy is violated has to have the right to press charges in civil proceedings and ask for the compensation for the damage which he or she suffered.

The Resolution emphasizes that editors and journalists can be charged with the violations of the right to privacy under the same conditions as for defamation; that is, when they publish data which are later proved to be incorrect, editors should be obligated to publish an equally prominent correction on the demand of those in question; it is also highlighted that the people whose right to privacy has been violated should be enabled to sue press-photographers and other directly involved people for video and audio tapes and for photos which could have not been made if press-photographers had not got onto a private property in an unauthorized way. The Resolution specifically recommends the states to encourage media to pass internal codes regarding the publishing of such data and audio or video tapes and to establish one body to which the victims of violations of the right to privacy can file a lawsuit and request the publishing of a correction.

Beside the fact that it can clash with the realization of other human rights, freedom of expression plays an important role in the protection of other rights protected by the Convention especially with regard to the realization of effective

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political democracy. Without ensuring that the right to freedom of expression is protected by independent and impartial courts, it is difficult to imagine a real democracy.

Hate speech

Here it is important to mention the Recommendation of the Committee of Ministers on “hate speech” (adopted on 30 October 1997), with Annexes which especially express the principles related to hate speech and particularly to hate speech in the media. In order to apply these principles, the expression “hate speech” entails all forms of expression which spread, stir, encourage, or justify racial hatred, xenophobia, anti-Semitism, or other types of hatred based on intolerance, including the intolerance expressed in the form of aggressive nationalism and ethnocentrism, discrimination, and hostility towards minorities, migrants, and people of immigrant origin. Hence, member states are recommended to establish and maintain a full legal framework containing the decrees of civil, criminal and managing rights related to hate speech. This framework enables state and judiciary authorities to comply the respect of freedom with the respect of human dignity and the protection of reputation or rights of the others in all cases.

Basically, the protection provided by Article 19 refers to every expression, independently of the context, which is spread by any individual, group, or type of media. The only restriction on the content applied even by the Commission on Human Rights referred to spreading the ideas which promoted Nazistic ideology, neglected the Holocaust, and invited to hatred and racial discrimination. On this occasion, the Commission cited Article 17 of the Convention (which stipulates the ban of abuse of rights states: “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction on any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention’’) and decided that freedom of expression cannot be used to lead towards the destruction of rights and freedoms guaranteed by this Convention. Such decision applies the theory of paradox of tolerance: absolute tolerance can lead to tolerating the ideas promoting intolerance that could finally destroy the tolerance itself.

States are always obligated to justify every disturbance of any type of expression. The characteristic of Article 10 is the protection of expression which carries the risk of endangering or the expression which in fact endangers the interests of others. Usually, there is a low risk of states interfering in the opinion of the majority or of big groups. This is precisely why the protection provided by Article 10 also covers the information and opinion expressed by smaller groups or even by one person,

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even if this opinion can be shocking to the majority. The tolerance of individual’s opinion is an important part of any democratic political system.

Freedom of the press

Even though Article 10 of the Convention does not explicitly mention either freedom of the press or journalistic freedoms, the practice of European Court obviously shows that, in the Convention, the phrase “freedom of expression” also covers freedom of the press as one of its most significant elements. Freedom of expression includes negative freedom of not speaking, too. Article 10 does not protect the right to vote. The right to vote is considered to be a part of the obligation of a state to hold “free elections in reasonable time periods, by secret voting under the conditions that ensure the free expression of opinion of the people when electing legislative bodies.” Although it concluded that access to information is not included in the protection provided by Article 10, the Court decided that other decrees of the Convention can protect this right under certain circumstances.

It is extremely important for every restriction, limitation, or any type of interfer-ence with the freedom of expression to be applied only on a specific realiza-tion of this freedom. When it comes to these subjects, the Court examines and decides whether there is a disturbance and it considers the restrictive effect of a certain measure. For example, endangering someone’s reputation must not be considered a criminal act or the base for civil proceedings in any situations. Similarly, public expression which puts the authority of judicature at risk must not be punished every time it appears. Therefore, the very content of the right to freedom of expression always remains untouched.

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Chapter 3FREEDOM OF EXPRESSION

IN COURT PRACTICE

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MAIN STANDARDS OF THE PRACTICE OF EUROPEAN COURT Mladen Srdić

In its decision making process, beside its judiciary practice in the interpretation of the Convention, the European Court in Strasbourg pays attention to local judiciary practices, including the American one, which gives a strong protection to freedom of expression. However, local decisions – independently of jurisdiction – have a limited influence on an international body, such as this Court, which mostly applies and interprets one international agreement. In some cases, however, the Court cited the International Covenant on Civil and Political Rights1 or other international documents protecting the freedom of expression.

Generally, it can be said that the jurisprudence of the Court developed from a rather conservative approach, which gives more authorization to states, to a more liberal approach, which provides states with less discretional right when it comes to the limitation of freedom of expression.

Guaranteeing freedom of expression is applied to the media in a particularly strong manner. In almost every case related to the media, European Court emphasized that the “essential role of the press in one democratic society…the duty of which is to deliver – in accordance with its obligations and responsibilities – information and ideas referring to all questions of public interest. Not only is the task of the press to deliver such information and ideas, but the public has the right to receive them, too. Otherwise, the press would not be able to play its vital role of a public warden.”2

One part of this standard of enabling lively debates on the topic of public interest is also the fact that public employees and politicians should tolerate criticism related to their work to a much higher degree than anyone else because this is why they have been chosen in the first place.

FACTS AND OPINIONS

The European Court of Human Rights has established in its practice the hierarchy of values protected by Article 10 of the Convention. Within this hierarcy there are comments and debates on the questions of general public interest given and

1 The International Covenant on Civil and Political Rights (New York, 7 March, 1966), 660 U.N.T.S. 195. 5 I.L.M. 352 (1966), entered into force on 4 January 1976, http://www.hrweb.org/legal/cpr.html (accessed 8 December 2011).2 See: Council of Europe, Freedom of Expression in Europe: Case-law concerning Article 10 of the European Convention on Human Rights, Strasbourg: Council of Europe Pub-lishing, 2007, http://www.echr.coe.int/NR/rdonlyres/BA2CB2C0-E837-4253-A1B5-5BC87D84AABE/0/DG2ENHRFILES182007.pdf (accessed19 May 2011).

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E led by public figures and media, especially in the domain of political expression, the most protected form of freedom of expression. In that sense, associations or individuals which are actively and voluntarily involved in public discussions have to have a great level of tolerance when it comes to criticism. The European Court almost always concluded that defamation proceedings involved violations of the right to freedom of expression, that is, the defamation of high governmental officials and public officials (Lingens against Austria3, 1986; Oberchlick against Austria4, 1991)

In order to decide to which extent a certain expression is protected, the Court considers the type of expression (e.g. political, artistic, commercial, etc.), the means used to deliver the expression (in person, print media, television, etc.), and the audience which received this expression (e.g. a certain group, adults, children). The European Court emphasizes that the obligation of media overcomes a simple reporting of the facts and that their duty is to interpret facts and events with the goal of informing the public and contributing to debates on the questions of public importance.

One of the questions most often repeated in Strasbourg, when applying the standards about defamation, is the one of making the difference between facts and opinions. The standpoint of the Court is that the statements of opinions (value judgments) have to differ from statements about facts. This difference is very important: facts can be proved, whereas opinions cannot.

The European Court provides a high degree of protection for delivering opinions, particularly when it comes to the questions of public interest, but local courts in Europe have had doubts about making a difference between statements about facts and opinions for a long time. There is a long list of cases in the European Court when local courts incorrectly treated allegedly defamation publications as statements of facts. Also, the Court is very cautious when it comes to sanctioning every statement which is not fully correct. Even the best journalists make mistakes, so that, if there were pushments for every unintentional statement, public interest of receiving timely information would be significantly endangered.

This issue deserves a full attention as it is one of the most important ones in the applications of the Law on the Protection against Defamation in both entities of B-H. This will be elaborated in chapter 5.

3 Belgrade Center for Human Rights, Charging a journalist of the defamation of Aus-trian Federal Chancellor. Lingens Case (1986), http://www.bgcentar.org.rs/index.php?option=com_content&view=article&id=662:lingens-protiv-austrije&catid=83 (accessed 17 May 2011).4 Oberschlick v. Austria (no. 2) (47/1996/666/852), 1 July 1997, http://www.hrcr.org/saf-rica/expression/oberschlick_austria.html (accessed 17 May 2011).

RIGHT TO PROTECTION OF REPUTATION AND RESPONSIBLE JOURNALISM

The European Court believes that the adequate balance between the right to freedom of expression and the right to protection of reputation has to protect those who reasonably acted when publishing statements about the questions of public interest while enabling the prosecutors to sue those who did

not do so, which could also be called the defense of ”reasonable publishing.” The media acting in accordance with acknowledged professional standards should pass the test of reasonability in any case. The European Court confirmed this in the case of Tromsø and Stensaas against Norway5, by stating that press should be allowed to publish stories of public interest under the condition to “act with good intentions in order to get correct and reliable information in accordance with the ethics of journalism.” This is crucial for the test of responsible journalism. Namely, only the journalists who publish with good intentions and in line with professional ethics should be allowed to rely on this.

Furthermore, the journalists who are charged with defamation have to have the right of defense of “responsible journalism.” Under certain circumstances even the incorrect defamatory statements about facts have to be protected. The rule of firm responsibility for all incorrect statements is particularly unfair for the media that are obligated to fulfill the right of public to be informed of issues of public importance and that often cannot wait to be sure that every fact given is correct before it is published or broadcast.

PROPORTIONAL DAMAGE

One of the standards established by the Court refers to the measures which can be imposed when it is established that a journalist is responsible for defamatory statements: any measure that has been passed should be strictly proportional. Unreasonably severe sanctions or too high compensations for the damage, even in the case of statements proved to be defamatory, will represent a violation of guaranteeing of freedom of expression. Two measures are particularly relevant in any discussion on this matter: imprisonment and high fines or compensations.

The European Court has never supported any actual imprisonment. Other

5 Tromsø and Stensaas v. Norway (21980/93), 20 May 1999, http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/2422ec00f1ace923c1256681002b47f1/887a2420f72746ebc1256783003c2213?OpenDocument (accessed 17 May 2011).

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European Court emphasizes that the obligation of media overcomes a simp-le reporting on the facts and that their duty is to interpret facts and events with a goal of informing the public and contributing to debates on the questi-ons of public importance.

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international bodies have also often emphasized the illegitimacy of the Law on Defamation that stipulates imprisonment as a punitive measure. While the European Court has never even made a decision whether prescribing these felonies is connected with the right to freedom of expression or not, it emphasized on several occasions that states are supposed to use punitive measures to limit the right to speech only as a last resort and that punitive sanctions should be applied only for preserving the public order and not in private conflicts, as most cases of defamation are.

Furthermore, in order to consider the limitations of freedom of expression justifiable, they have to be absolutely necessary, which means that there is no other milder solution. Persecuting and charging can be considered as proportional only in exceptional circumstances of serious attacks on the right of an individual. For example, the recent decision on the case of Gavrilovićs against Moldova6, European Court stated: “The Court reminds that conducting criminal punitive measures against someone who enjoys the right to freedom of expression can be compatible to Article 10…only in exceptional circumstances, especially when other basic rights are seriously violated.”

Similarly, in the case of Bodrožić and Vujin against Serbia7, the Court established that: “Resorting to persecution against journalists for alleged insults which triggered off the questions of public debates, as it is in this case, should be considered as adequate only in exceptional circumstances which include the most serious attack on the rights.”

The European Court of Human Rights does not support imprisonment as a punitive measure for defamation, except for the case of hate speech or encouraging the violence (cases of Cumpana and Mazare against Romania8, 2004, Dlugolecki against Poland9, 2009).

In that sense, beside the issue of the legitimacy of judiciary protection which has already been given, it should be highlighted that, on several occasions, the European Court of Human Rights indicated that passing criminal sanctions if other alternatives (such as legal, civil proceedings) are available means violating Article 10 of the Convention.

Civil compensations can also be a reason for concerns when it comes to freedom

6 Gavrilovićs v. Moldova (25464/05), 15 December 2009, http://www.ncbi.nlm.nih.gov/pubmed/20443444 (accessed 17 May 2011).7 Bodrožić and Vujin v. Serbia (38435/95), 23 June 2009, http://sim.law.uu.nl/SIM/Case-Law/hof.nsf/2422ec00f1ace923c1256681002b47f1/94821f99c573f9b9c12575e10032310e?OpenDocument (accessed 17 May 2011).8 Cumpănă and Mazăre v. Romania (33348/96 ), 17 December 2004, www.coehelp.org/mod/resource/view.php?inpopup=true&id=445 (accessed 17 May 2011).9 Dlugolecki v. Poland (23806/03), 24 February 2009, http://vlex.com/vid/case-dlu-golecki-poland-52147065 (accessed 17 May 2011).

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of expression. In the case of Tolstoy Miloslavsky against the United Kingdom10 (this will be elaborated later on), the European Court clearly stated that the compensation for defamation of more than million pounds is completely disproportional and that it violates the right to freedom of expression.

But even a relatively small amount of compensation can increase concerns over freedom of expression if it seriously affects the defendant. For example, in the case of Steel and Morris against the United Kingdom11, the European Court emphasized that even though the compensations in this case were relatively small (it was about tens and not hundreds of thousands of pounds), they were still “very serious in comparison with modest incomes and budget of the two petitioners,” leading to the violation of the right to freedom of expression.

PROTECTION OF CONFIDENTIAL SOURCES

A very important component of freedom of expression is the protection of journalistic sources. The most significant judgment of the European Court relevant for this aspect was passed in Goodwin vs. UK12 in 1996.

Goodwin, a journalist of the magazine The Engineer, received from his “sources” over the phone information about company Tetra Ltd. The source said that the company was about to get a huge credit although it already had financial problems. The information was neither requested nor paid for. While writing an article on this topic, the journalist called the company and asked them to comment on the matter. The information came from a document labeled ‘confidential’ and the company discovered that documents from the administration were missing. After the journalist called, the company asked the European Court to issue a prohibition and stop Mr. Goodwin to publish the text, claiming that if the information reached the public, its economic and financial interests would be seriously endangered. The prohibition was issued and the company sent a copy to all bigger daily newspapers. After that, the company asked the Court to demand the journalist to reveal the name of his source, arguing that this would help the company find out who the dishonest worker was and start a procedure.

The journalist kept refusing the requirements of the Court and he did not reveal his source. He was fined on the basis of ‘obstruction of justice.’ He submitted a petition

10 Tolstoy Miloslavsky v. United Kingdom (18139/91), 13 July 1995, http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/1d4d0dd240bfee7ec12568490035df05/8b6bd2df00f0abb1c1256640004c2d62?OpenDocument (accessed 17 May 2011).11 Steel and Morris v. United Kingdom (68416/01), 15 February 2005, http://www.uniset.ca/other/cs5/echr_mcdonalds.html (accessed 22 March 2012).12 Goodwin v. United Kingdom (28957/95), 11 July 2002, http://www.5rb.com/case/Goodwin-v-United-Kingdom (accessed 22 March 2012).

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E before the European Court and claimed that the Court asking him to reveal the source, as well as fining because of not doing so was a violation of his right to freedom of expression. The Court accepted that the interference was directed towards the protection of ‘rights of the others’ (rights of the company) and it kept examining whether the interference was ‘necessary in a democratic society.’

The Court recalls that ‘’freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance. Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of Contracting States and is affirmed in several international instruments on journalistic freedoms (…) Without such protection, the sources would not be providing the press with help in informing about the issues of public interest. As a result, the vital role of the press as a public watchdog can be jeopardized and the ability of press to provide correct and reliable information can suffer negative consequences.”13 Taking into consideration the importance of journalistic sources for freedom of the press in a democratic society, the Court stated that such measure could be compatible to Article 10 of the Convention unless it was justified with “the priority need in public interest.”142When elaborating on the purpose of revealing the source was to a great extent the same as the one which was already achieved by the prohibition of publishing, that is, that the distribution of confidential information about the financial situation of the company was prevented, the Court stated that there is no “reasonable relationship of proportionality between the legitimate aim pursued by the disclosure order and the means deployed to achieve that aim. The restriction which the disclosure order entailed on the applicant journalist’s exercise of his freedom of expression cannot therefore be regarded as having been necessary in a democratic society… for the protection of Tetra’s rights…Accordingly, the Court concludes that both the order requiring the applicant to reveal his source and the fine imposed upon him for having refused to do so gave rise to a violation of his right to freedom of expression.”153

After the judgment in Goodwin on 8 March 2000, the Committee of Ministers of the Council of Europe adopted the Resolution Res (2000) 716

4, about the right of journalists to not reveal their sources of information. In line with the decision of the Court in Goodwin and the Resolution, in 2000, domestic courts should

13 Ibid.14 The Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950), Article 10, entered into force 3 September 1953.15 Supra note 1216 Council of Europe, Resolution Res (2000) 7 of the Committee of Ministers of member states on rights of journalists not to reveal their sources (21 September 2000), http://conventions.coe.int/Treaty/EN/partialagr/html/Observ20007.htm (accessed 18 July 2011).

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include decrees protecting journalistic sources in domestic laws. The sources can be revealed only if this is a priority need or a vital interest. However, even such needs or interests have to be balanced with the needs of protecting journalistic sources as a part of the protection of freedom of expression. According to the Recommendation, journalists have to be informed about their right of not revealing the source before such charges are made. Court discussions following or interrupting the communication should not be allowed if their goal is to reveal journalistic sources.

Therefore, according to the interpretation of the European Court, journalistic freedom includes the right of journalists to protect the anonymity of their sources, even if this right is not explicitly stated in Article 10 of European Convention. However, this has been done in Article 9 of the Law of Protection against Defamation of FB-H and Article 10 of the Law of Protection against Defamation of RS, which prescribe that journalists and other private persons which are regularly or professionally involved in journalistic search, or in receiving or presenting the information to the public, who received information from a confidential source, have the right of not revealing the identity of this source. To this right it was added that the right of not revealing the identity of a confidential source refers to every other private person involved, in accordance with these laws and who, as a result of their professional relationship with a journalist, finds out the identity of the confidential source of information.

Therefore, it can be concluded that in this regard, our laws are one step ahead of the decrees of the Convention or even of the court practice of the European Court. This is where we have to remember that the Convention prescribes the minimum of rights and freedoms which one state has to guarantee to its citizens and does not prevent this state from expanding the domain of rights and freedoms by its legislation in accordance with its social progress.

Due to such precise and explicitly defined right of journalists to not reveal their sources, this question is not disputable in practice, although it has to be mentioned that the circumstance of them having the freedom of not revealing their sources of information is seen as a way for journalists to avoid a possible defamation suit. Because of that, it often happens in court that journalists state that they received the information from a confidential source that cannot be revealed and that they did not verify whether the information obtained was true or false. It is interesting to see that the legal system of Great Britain provides journalists with freedom from liability for defamation in case they reveal their confidential source of disputable information and this is when the source itself is the liable one. Of course, no professional journalist has so far used this possibility that would probably lead to the end of his or her career in journalism.

In countries that have not adopted the protection of journalistic sources, courts

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E have to do this as the part of European law such as the decision in Goodwin subject and as the part of internationally acknowledged legal principles. Domestic courts have to be the guardians of freedom of expression rights, including the protection of journalistic sources in all situations, both when journalists are asked to come before the court both as defendants and when they come as witnesses. In these cases, domestic courts have to respect only the principle of proportionality and the role of the media in democratic society.

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EUROPEAN CONVENTION IN THE PR AC TICE OF THE CONSTITUTIONAL COUR T OF B -HSevima Sali-Terzić

Freedom of expression, protected by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, is a constitutional right in Bosnia and Herzegovina. According to Article II/6 of the Constitution of Bosnia and Herzegovina, “Bosnia and Herzegovina, and all courts, agencies, governmental organs, and instrumentalities operated by or within the Entities” have to apply human rights guaranteed by Article II/2. This means that all courts in Bosnia and Herzegovina are obligated to respect and apply the standards of protection of this right established by the European Court of Human Rights when deciding on cases related to freedom of expression.

The Constitutional Court of Bosnia and Herzegovina is the final authority for examining a possible violation of freedom of expression and, based on Article VI/3.b) of the Constitution of Bosnia and Herzegovina, it “shall also have appellate jurisdiction over issues under this Constitution arising out of a judgment of any other court in Bosnia and Herzegovina.”1

Issues with respecting freedom of expression in the practice of the Constitutional Court of Bosnia and Herzegovina have mainly occurred in cases where regular courts were applying the Law on the Protection against Defamation. By passing these laws, defamation in Bosnia and Herzegovina has been decriminalized, excluded from criminal law domain, and placed into the domain of civil law. In the first two years after these laws were passed, the number of charges related to defamation against journalists increased three times compared to two or three years before the laws were passed, and requests for compensation for damage reached millions.2 This increase of charges on defamation caused more appeals referring to the protection of freedom of expression to be received by the Constitutional Court between 2004 and 2007. Today, there are a lot less appeals of this kind.

1 Law on Protection against Defamation of FB-H (Sarajevo, 2002), Official Gazette of FB-H No. 59/02, entered into force in 2002; Law on Protection against Defamation of RS (Banja Luka, July 2001), Official Gazette of RS No. 37/01, entered into force on 1 August 2001.2 See: Mehmed Halilović, Application of new Law on Protection against Defamation in B-H: there was not much profit for journalists, 24 March 2005, http://www.media.ba/mcsonli-ne/bs/tekst/primjena-novog-zakona-o-zastiti-od-klevete-u-bih-novinari-nisu-previ-se-profitirali (accessed 28 September 2011).

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GENERAL PRINCIPLES OF THE PROTECTION OF FREEDOM OF EXPRESSION APPLIED BY THE CONSTITUTIONAL COURT OF B-H

Following the practice of the European Court of Human Rights, in cases referring to possible violations of freedom of expression, the Constitutional Court consistently applies the general principles of the protection of freedom of expression stipulated in Article 10 of the European Convention in the very way in which European Court of Human Rights interprets them.

According to these general principles, freedom of expression is the essence of a democratic society and it is one of the basic conditions for societal progress, as well as for the progress of every individual. Along with the limitations given in paragraph 2 of Article 10 of European Convention, this freedom is applicable not only to “information” or “ideas” that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock, or disturb, which are the demands of pluralism, tolerance, and broadmindedness, necessary for a truly democratic society.3

This freedom is still not absolute and it can be limited based on circumstances and conditions given in paragraph 2 of Article 10 of the European Convention, according to which public authorities can interfere in the freedom of expression. Therefore, the key role and task of any independent jurisdiction in every particular case is to clearly determine the boundary between justified and necessary, and unjustified and unnecessary limitations which confirm that one principle is in fact a rule or negate it as a pure declaration.

The general rule of the protection of freedom of expression is also conducting the test of ‘necessity in democratic society.’ When deciding on whether Article 10 of the European Convention has been violated, this test requires determining whether the ‘interference’ of local authorities with this freedom corresponds to ‘an urgent social need,’ whether it is proportional to the legitimate goal which is supposed to be achieved, and whether the reasons and justifications for such interference provided by public organs are relevant and sufficient. Therefore, the application of this test should establish whether local authorities applied the standards in line with principles given in Article 10 of European Convention, as well as whether local authorities based their decisions on an acceptable analysis of relevant facts. Also, this test requires establishing whether there is a fair balance in the protection of two values guaranteed by the European Convention which can be contrary to one another: on one hand, freedom of expression in Article 10 of European Convention, and on the other, the right of persons attacked in a text to protect their reputation protected by Article 8 of

3 Selistö v. Finland (56767/00), paragraph 46, 16 November 2004, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 22 March 2012).

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European Convention within the right to private life.4

Furthermore, the general principle is that there is a clear distinction between information (fact) and opinion (value judgment) because the existence of the fact can be proven whereas there is no proof for the truth based on value judgment.5 On the other hand, the European Court of Human Rights reiterates that the role of press in a democratic society is very important. Although it must not cross certain lines, especially having in mind the protection of reputation and the right of others and the need to prevent publishing confidential information, the duty of the press is to provide and publish the information and ideas on all issues of public interest, including the information referring to activities of public officials. Not only is the duty of the press to disseminate such information and ideas, there is also the right of the public is to receive such information. Article 10 of the European Convention protects the essence of information and ideas that are stated, as well as the form in which they appear and journalists are at liberty to include a certain degree of exaggeration or even provocation as well.6

Article 10 of the European Convention does not ensure unlimited freedom of expression even when it comes to press reporting on serious issues of public interest. According to paragraph 2 of Article 10 of the European Convention, enjoying freedom of expression includes ‘duties and obligations’ applied to the press, too, and they become particularly significant when the reputation of private persons is attacked and when the rights of ‘the others’ are at a lower level. Therefore, the Court take into consideration whether journalists act bona fide  when making efforts to provide accurate and reliable information to the public in accordance with journalism ethics.7

This means that the defense based on an honest intention is a type of substitution for proving the truthfulness. When journalists have a justified goal, if the issues are important for the public and if reasonable efforts for confirming the facts have been made, the media will not be responsible even if the facts turn out to be false.

Furthermore, the European Court of Human Rights established the principle according to which the compensation for damage in a civil lawsuit concerning defamation is a clear interference in exercising the right to freedom of expression.

4 Chauvy et al. v. France (64915/01), paragraph 70, 29 June 2004, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 22 March 2012).5 Lingens v. Austria (9815/82), paragraph 46, 8 July1986, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 22 March 2012).6 Hrico v. Slovakia (49418/99), paragraph 40, 2004, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 22 March 2012).7 Supra note 3, paragraph 54.

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Namely, according to paragraph 2, Article 10 of the European Convention, authorities can interfere into the realization of freedom of expression only if three cumulative conditions are fulfilled: a) that the interference into freedom of expression is prescribed by law, b) that its goal is to protect one or several stipulated interests or values, and c) that it is necessary in a democratic society. The courts are to follow these three conditions when considering and deciding on cases related to freedom of expression.

Having in mind these conditions and the given principle, the European Court concluded that the amount of compensation can lead to the violation of Article 10 of the European Convention if it is not “reasonably proportional to the damage caused to someone’s reputation.”8 Also, when dealing with numerous cases referring to defamation, the European Court especially emphasizes the role of media as a ‘public watchdog’ and the contribution of media to the correct functioning of democracy. To that end, the European Court implicitly considers the criteria of ‘influence’ by relying on the fact that certain limitations of freedom of expression can have ‘discouraging effect.’ In that sense, the European Court points out that, according to the obligations listed in Article 8 of the European Convention, member states of the Council of Europe can or even have to regulate freedom of expression in order to ensure adequate protection of the reputation of individuals, but this must not cause a ‘discouraging effect’ on the media.9 With this in mind, the European Court will determine whether there was a violation of Article 10 of the European Convention if the measures taken in order to protect reputation of one person are ‘obviously disproportional,’ which is, for example, the case when journalists are sentenced of imprisonment for defamation or prohibited to work in journalism, or even when there is a possibility of having journalists being sentenced in this manner.10

In the end, there is little space within paragraph 2, Article 10 of the European Convention for the limitations of political speech or debates on issues of public interest. Moreover, the boundaries of acceptable criticism are wider when it comes to public figures such as politicians, than when it comes to private persons. Unlike private persons, public figures are aware that they are inevitably exposed to public judgment and their words and acts to a closer examination of public hence they have to express a greater level of tolerance, too.11

8 Tolstoy Miloslavsky v. United Kingdom (18139/91), 13 July 1995, http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/1d4d0dd240bfee7ec12568490035df05/8b6bd2df00f0abb1c1256640004c2d62?OpenDocument (accessed 17 May 2011).9 Selistö v. Finland, Supra note 3, paragraph 53.10 Cumpănă and Mazăre v. Romania (33348/96 ), 17 December 2004, paragraph 113-114, www.coehelp.org/mod/resource/view.php?inpopup=true&id=445 (accessed 17 May 2011). 11 See: Hrico v. Slovakia, Supra note 6, 2004, paragraph 40.

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MAIN DECISIONS OF THE CONSTITUTIONAL COURT12

Satire and value judgments

1. Decision No. 787/0413

The applicants complained that there was a violation of Article 10 of the European Convention as courts treated disputable texts of satirical nature as defamation and obligated the applicants to provide compensation for non-material damage to the plaintiffs.

The Constitutional Court determined that in this case, decisions of courts violated the right of Article 10 of the European Convention, which was explained in the following way:

“expressions in the disputable text are entirely value judgments, that is, the opinion of applicants on plaintiffs and relations in daily newspapers in which they work, hence they do not contain any factual statements which can be proved true or false. Statement: ‘Aida Delić prefers military staff whereas Indira Ćatić likes police officers more. However, both of them are useful for their boss Radončić, who sometimes awards them with a swim in a pool (together)’, can be seen only as a value judgment on plaintiffs and relations in daily newspapers in which they work. If it was the opposite, the question which would certainly rise would be: in which way is it even possible to prove that anyone ‘prefers soldiers or police officers’ due to which they are useful for the person they work for, who then gives them ‘a joined swim in a pool’ as an award? Such statements cannot be proven to be true or false because they do not contain the minimum of facts that could be verified by objective proofs.

Beside this, statements such as: ‘Thanks to strong connections of Delić with Federal Ministry of Defense, Radončić can be certain that his building will remain untouched even though it was built on an fallout shelter, while ‘speed bumps’ from Cantonal Ministry of Internal Affairs take a firm position regarding Indira Ćatić by guaranteeing that no one would take the cars packed up in front of ‘Avaz’ building’ can all be seen only as value judgments and not facts which could be proven. Namely, expressions that have been mentioned do not state any facts related to the plaintiffs except that it is said they had ‘connections’ in certain public organs. In the specific case, apart from stating that the plaintiffs have ‘connections’ there is nothing that could possibly be examined from the aspect of charges of defamation. It is written that ‘Radončić can be certain that his building

12 Cases were chosen on the basis of the issue they dealt with and how interesting they were.13 Decision of Constitutional Court of B-H (AP 787/04), 20 December 2005, Official Gazette of B-H, No. 41/06, http://www.ustavnisud.ba/bos/odluke/povuci_html.php?pid=28220 (accessed 22 March 2012).

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will remain untouched even though it was built on a fallout shelter’, and that ‘no one would take away the cars packed up in front of ‘Avaz’ building.’ However, there is the question of what the facts that should be established in the context of charges of defamation are. The disputable text does not mention that the plaintiffs did anything illegal hence there is no basis for statements of regular courts such as ‘facts presented in this way suggest that the plaintiffs with a help of their contacts can provide a good treatment of a third person for which it can be assumed that it is not in line with valid laws.’ Based on the quotes of the disputable text, there cannot be assumptions that the plaintiffs ‘allegedly’ do something illegal and thus it cannot be claimed that the applicants are liable for defamation.

The abovementioned shows that regular courts in this specific case did not make a distinction between information (fact) and opinion (value judgment). On the contrary, value judgments in the text were interpreted as facts hence regular courts determined that there was a liability of applicants for defamation. Regular courts highlighted that disputable expressions were ‘negative value judgments about the plaintiff which attacked her honor’ and that they ‘expressed negative values of her personality’. In the sense of sanctioning what was written in this specific case, such conclusions were absolutely opposite to the standards prescribed by Article 10 of European Convention and by Article 7, paragraph 1, point a) of the Law on Protection against Defamation, considering the fact that there is no liability for defamation if someone expresses their opinion or gives a value judgment about someone. If words of the disputable text are unpleasant for the plaintiffs, this still cannot limit the right to freedom of expression of applicants given by standards of Article 10 of European Convention and Article 2, paragraph 1, point b) of the Law on Protection against Defamation according to which the applicants have the right to expressions which can offend, embitter or disturb, especially when it is taken into account that they wrote about the issues of public interest, that is, about relations in one daily newspaper which, without any doubt, has a great influence on the matters of political or public interest.

Beside this, the Constitutional Court emphasized that regular courts neglected truly satirical, that is, humorous characteristics of the disputable text and that they did not keep in mind the provisions of Article 5 of the Declaration on Freedom of Political Debate in the Media, which, when it comes to this type of texts, allow a greater extent of exaggeration or even provocation. It is mentioned that this declaration is not binding, however, Bosnia and Herzegovina, as a member of the Council of Europe cannot ignore recommendations related to freedom of the media, that is, the freedom of political debate in the media which has been passed by the Council of Ministers of the Council of Europe.”14

14 Ibid., p. 45-48.

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Balance between freedom of media and right to reputation

2. Case No. AP 1005/0415

The applicants complained to the Constitutional Court that decisions of the Sarajevo Cantonal Court and the Supreme Court of the Federation of B-H violated their right to freedom of expression because these decisions based on the Law on Protection against Defamation obligated them to provide compensation for the plaintiff. Namely, the charges against the applicants were pressed by the former cantonal minister for industry, energy and mining because the political program ’60 minutes’ stated that, due to his personal interest, the minister “refused the offer of 20,000,000 BAM for starting the work at ‘Polihem’, that his arbitrariness is reflected best in the example of limestone mine ‘Wreath’(‘Vijenac’) when he decided, that is, assessed that the mine cost almost 20,000,000 BAM, that he refused the offer of 5,000,000 BAM and accepted the one of selling the mine for 1,000,000 BAM.” 

The plaintiff stated that the applicants “did not take any statement from him, nor did they respond to numerous requests for the correction of false expression” and he asked the court to make it obligatory for them to pay 50,000 BAM as a compensation of non-pecuniary damage and to make the decision public. The Cantonal Court established that there was defamation in this specific case and decided to award the plaintiff 5,000 BAM in damage compensation. On the basis of the appeal, the Supreme Court confirmed the position of the Cantonal Court that there was defamation, but increased the compensation for damage 10,000 BAM.

When deciding on the appeal, the Constitutional Court established that the applicants stated facts about the plaintiff which were found to be false by the courts, and that the two applicants were aware of the falsity of the facts, as they stated before the Cantonal Court. Moreover, the Constitutional Court stated that the courts determined that the plaintiff “reacted and asked the opportunity to use arguments to confute stated false facts, that is, to mitigate the damage” but that “the applicants did not met the request of the plaintiff in an adequate way.”16 Based on the abovementioned, the Constitutional Court concluded that courts made a necessary distinction between facts and opinions. By applying the test of ‘necessity in a democratic society,’ the Constitutional Court also concluded:

courts took into consideration the fact that when the disputable report was published, the plaintiff was a public figure and related to this, they took into

15 Decision of Constitutional Court of B-H (AP 1005/04), 2 December 2005, Official Ga-zette of B-H, No.45/06, http://www.ustavnisud.ba/bos/odluke/povuci_html.php?pid=28220 (accessed 22 March 2012).16 Ibid., p.38.

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consideration his obligation to tolerance. However, when estimating all circumstances, they concluded that this case of stating false facts crossed the allowed limit and the necessary tolerance of the plaintiff, that is, that there was defamation and that damage was caused to the reputation of the plaintiff. The Constitutional Court considers that, even though the existence of legitimate goal can be accepted, when it comes to the essence of disputable report, as this was the issue important for the public, there still was not a good intention of the applicants. Also, reasonable efforts were not made in order to confirm these facts, nor mitigate harmful consequences by enabling the plaintiff to confute false facts that were stated, thus the applicants are liable for stating and conveying the false expression. Namely, in this specific case, general interest which allows rising the question on the situation in economy cannot be defended by stating false facts which attack the reputation of the plaintiff and which can thus be seen as a criticism aimed at the plaintiff which he is supposed to tolerate considering the function he occupied at the time.  

Therefore, according to the principle of proportionality, the disputed judgments established the balance between the freedom of media and the rights of executive authorities to reputation. Also, considering all the circumstances of this case, by passing disputed judgments the courts determined that there was an ‘urgent social need’ requiring a specific limitation in realization of freedom of expression. The Constitutional Court does not consider that it can be concluded that regular courts crossed the allowed degree of discretion of the court.17

Proving that damage occurred

3. Case No. AP 1203/0518

In this case, the applicant (MM Company), made an appeal to the Constitutional Court of B-H against the decisions of Sarajevo Cantonal Court and the Supreme Court of FB-H which provided the plaintiffs (‘Avaz’ and Fahrudin Radončić) with a compensation for non-pecuniary damage caused by defamation. Court decisions stated that the applicant, as a publisher of ‘San’ magazine, is responsible for this magazine publishing “on the first page, a photo of the second plaintiff beside which it was written: ‘Radončić made a fortune out of the donations for children of Srebrenica.’ This was an announcement for the text on page 3 where there was an alleged letter of Civic association – ‘Mothers of Srebrenica and Podrinje,’ as well as the announcement of the text on the same page with a title ‘Investigation on citizenship and place of residence,’ stating that there was a

17 Ibid., p.39.18 Decision of Constitutional Court of B-H (AP 1203/05), 27 June 2006, Official Gazette of B-H No.7/07, http://www.ustavnisud.ba/bos/odluke/povuci_html.php?pid=28220 (ac-cessed 22 March 2012).

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thorough investigation about the way in which the second defendant obtained the citizenship of Bosnia and Herzegovina.” 

Cantonal Court completely repudiated the charges related to ‘Avaz’ whereas the appeal related to the second plaintiff, Radončić, was adopted and it made the applicant obligated to pay 6.000 KM as a compensation for non-pecuniary damage. Cantonal Court concluded that there was defamation in this specific case because the disputable article “quoted the letter of Ibran Mustafić, the president of Managing Board of Civic association – ‘Mothers of Srebrenica and Podrinje’ to the high representative in B-H. This letter stated that the owner of ‘Avaz’ was one of the last relapses of Milošević’s regime in B-H, that the main capital on which ‘Avaz’ was founded was taken from the donations to orphans in Srebrenica and Podrinje and that the owner of ‘Avaz’ was one of the main criminals who became rich in this way and now he is saying terrible things about the people without whom the lives of children without parents would have been uncertain. Furthermore, it stated that, before the aggression against RB-H, the owner of ‘Avaz’ came into the city having less than the victims of Srebrenica whereas today the residence of American ambassador is his mansion.”

The Supreme Court partially upheld the appeal, but lowered the amount of the compensation for damage to 3,000BAM.

When deciding on the appeal, the Supreme Court concluded that the repudiated judgments violated applicant’s right to freedom of expression and the right to fair trial hence both judgments were repudiated and returned the case to the Cantonal Court where there would be a new trial. The Constitutional Court noticed that in the exposition of such decision the Cantonal Court decided on the appeal related to the compensation for damage from defamation in “an alleged letter where the second plaintiff is mentioned in a negative context related to donations to Srebrenica” and in “the text stating that there was an investigation on the second plaintiff related to the way in which he obtained citizenship and registered his company.” Therefore, the Constitutional Court stated that the courts concluded that “these are the cases of defamation as there are statements which can be proved true or false implying that these are facts and not value judgments.” However, such conclusion was not entirely accepted by the Constitutional Court and the exposition states the following:

The procedure before Cantonal Court established that there was no investigation on the second plaintiff regarding his ‘suspiciously’ obtained citizenship and registration of his company which was neither denied by the applicant nor was there any evidence of establishing the veracity of given facts. The applicant justified publishing the cited information by stating that the data was received from a confidential source which does not have to be revealed, according to Article 9 of the Law on Protection against Defamation and that there was no intention of publishing false

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facts. Instead, according to the applicant, it was a comment on the activities of authorities. The procedure of first instance established that the applicant did not have any contact with the prosecution in order to possibly get their opinion or verify the information that was published. Therefore, the Constitutional Court considers that it is undisputable that this part of the published information referring to the second plaintiff conveyed the facts that were proved to be false by regular courts, and that there was no value judgment hence the conclusions of regular courts were correct.

However, the Constitutional Court considers that the conclusion of regular courts is disputable, as it states that there was defamation in one part of the published text that cited the letter of Ibran Mustafić, that is, in the title of this text saying that the second plaintiff made a fortune from the donations for Srebrenica. Regular courts concluded that the applicant is liable for causing damage to the second plaintiff by conveying the letter with an explanation that such quote was not reasonable based on paragraph 1, point c) of Article 7 of the Law on Protection against Defamation, and also that the procedure determined that the second plaintiff ‘could not make a fortune from donations to Srebrenica’. Contrary to the conclusion of regular courts, the Constitutional Court states that the given information cannot be seen as a fact which can be proved true or false in the procedure. Instead, these are value judgments, that is, conveying value judgments. Therefore, the Constitutional Court considers that paragraph 1, point c) of Article 7 of the Law on Protection against Defamation should not have been in the applicant’s case as the application of this Article is possible only when false facts are stated and not someone’s value judgments.

[...] in this specific case, regular courts did not make a proper distinction between value judgments and facts in relation to one part of published information. Although regular courts generally established that there was defamation and they did not decide on liability for damage in relation to each published information separately, they did not make a proper distinction between value judgments and facts which could later on affect the decisions on determining the amount of damage as the gravity of consequences for someone’s reputation depend on ‘the amount’ of defamation. Related to this, the Constitutional Court again emphasizes the principle to which it was already indicated in this decision, according to which the amount of compensation for damage has to be proportional to the damage caused to someone’s reputation. Considering the abovementioned, the Constitutional Court states that regular courts, according to the principle of proportionality, did not establish a proper balance between freedom of the media and the right of the second plaintiff to reputation. The Constitutional Court believes that in this way regular courts crossed the permitted degree of discretion of the court.19

19 Ibid., p.51-53.

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Related to the right to fair trial mentioned in paragraph 1, Article 6 of the European Convention, the Constitutional Court stated that the very fact that there was defamation of someone cannot lead to the conclusion that this person has the right to receive compensation for damage. The Court explained this fact in the following manner:

[...] regular courts established the principle which is contrary to valid legislative norms. This was done by concluding that ‘the existence of damage is assessed according to the adopted social norms and criteria while it is not crucial whether the person who suffered defamation subjectively feels harmed. It is important that stating false facts could have caused damage to the reputation of the second plaintiff which was undoubtedly established in the procedure.’ Namely, neither the Law on Protection against Defamation nor the Law on Obligatory Relations do not accept the concept of ‘a possible damage’ as the criteria for establishing whether the request for compensation for damage has basis or not. Article 200 of the Law on Obligatory Relations states that the Court adjudges a fair pecuniary or non-pecuniary compensation ‘if it determines that the circumstances of the case, and particularly the severity of pain and fear and their duration justify this.’ Also, according to Article 6 of the Law on Protection against Defamation, ‘every person causing damage to the reputation of private or legal entity’ is liable for defamation. Therefore, it can be concluded that regular courts are obligated to establish that there actually was non-pecuniary damage and to adjudge compensation when the circumstances of the case, and particularly the severity of pain and fear and their duration justify this.20

Furthermore, the Constitutional Court stated that:

...passing a new Law on Criminal Procedure radically changed criminal procedure by introducing the principle of discussion prescribed in Article 7 of the law on Criminal procedure which replaced the principle of material truth. The interpretation of this principle is ‘the number of facts equals the amount of right’ and it implies that the parties are obligated to provide all facts on which their requests are based. Thus this principle should be applied in cases dealing with defamation, too. The prosecution stated that there was damage, but they did not submit the evidence for this nor did the Cantonal Court deduct the evidence related to this. Instead the Court treated this fact as an established one and applied the principle of ‘it is sufficient to determine that expressing false facts could have caused damage to the suffering party’ [...] By introducing the principle that damage is assumed when it comes to defamation, regular courts basically have the possibility of not deciding on the circumstances of the case and especially the gravity of pains and their duration, which justifies adjudging a fair compensation in cash in the sense

20 Ibid., p. 31.

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of Article 200 of the Law on Obligatory Relations.21

Such conclusion brought some confusion and controversies in the legal community, especially because of the continuous issue of whether the injured person has the right to compensation in all cases of defamation or whether special evidence needs to be provided.

Discretion of the Court when deciding on damage

However, the practice which followed this decision showed that, in order to clarify this question more thoroughly, the Constitutional Court analyzed Article 10 of European Convention, and not Article 6 of European Convention, as it will be seen in the following example.

4. Case AP 1067/0622

In this case, the applicant was the newspaper ‘Slobodna Dalmacija’ (Free Dalmatia). Two plaintiffs pressed charges regarding defamation and asked for compensation for damage because the newspaper published an article entitled ‘Nebojša Prpa and tycoons use bribery and promises to buy councilmen.’ The disputable article stated that “the councilwoman [the second plaintiff] ‘was bought’ in the way that her father who was, according to Sabljić, even before known as a forger of savings books and stealer of collections of money from a gas station in Kikinda, was enabled to open a shop and a legal office, in spite of the fact that he graduated only from high school. Also, he was promised to get a job at the land registry of the municipality regardless of the fact that he recently got a loan from the Federal Employment Institute in the amount of 10 000BAM which could solve his status of an unemployed person.”

While gathering evidence, the Cantonal Court established that the first plaintiff asked for a loan of 10,000BAM from the Federal Employment Institute, and that he received approval for a loan of 8,000BAM. The receipt of this loan obligated the plaintiff to employ two people. It was also established that, on 6 November 2003, he was in the position of a cadaster referent with a contract of unlimited time that was annulled by an official letter on 17 June 2004, with an explanation that it was illegal. Furthermore, the Cantonal Court said that the plaintiffs “did not take any measures to mitigate the damage caused by stating false facts, and particularly that they did not make a request to the applicant in order to correct statements in line with the provisions of Article 8 of the Law on Protection against Defamation,” and that they “did not submit any evidence which would prove that

21 Ibid., p.33.22 Decision on appeal, Applicant: ‘Slobodna Dalmacija’ d.d Split. Constitutional Court of B-H (AP 1067/06), 13 September 2007, http://www.ustavnisud.ba/bos/odluke/povuci_html.php?pid=91813 (accessed 22 March 2012).

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they suffered any kind of non-pecuniary damage due to defamation, that is, the degree and intensity of emotional distress caused by a possible violation of their reputation and honor.” Because of all this, the Cantonal Court fully rejected the statement of claim. The Supreme Court acknowledged the appeal of the first defendant and it made the applicant pay 2,000BAM to the defendant, whereas the appeal of the second defendant was rejected, confirming the judgment of the first instance that concluded that facts in the disputable article were not proved true. Since this article published false facts, that is, defamation which caused damage to the reputation of the first plaintiff, the latter has the right to compensation.

By analyzing the application of general principles of the protection of freedom of expression in the specific case, the Constitutional Court adopted the appeal and established that the judgment of the Supreme Court violated the applicant’s right to freedom of expression. The Constitutional Court accepted the conclusion of the Supreme Court that the statement published in the disputable article saying that the first plaintiff “has been a well-known forger of savings books and stealer of collections of money from a gas station in Kikinda,” and that this part of the text attacks the reputation of the first plaintiff as a private person, thus, according to general principles, ‘duties and obligations’ of the press are particularly important. Furthermore, the Constitutional Court stated the following:

...the specific case deals with the compensation for non-pecuniary damage due to the violation of reputation and honor representing values the protection of which should not be questioned. When defining reputation and honor, the Constitutional Court emphasizes that every individual is characterized by these categories that represent the inseparable part of their personality. ‘Honor’ is most often defined as a collection of inherent values of every person as a human being and as a member of a certain social community. On the other hand, ‘reputation’ is often seen as the other side of honor, that is, as ‘an external honor’ that implies the respect which one person has within one social community. Defined in this manner, honor and reputation are two inseparable categories which can be observed from different aspects, even from the aspect of their civil-legal protection.23

Furthermore, the Constitutional Court concluded that the Supreme Court established that the applicant made defamation against the first plaintiff, harming his non-pecuniary – his reputation and honor. Therefore, the first plaintiff suffered non-pecuniary damage. Related to this, the Constitutional Court stated the following:

The subject of this damage were non-pecuniary goods related to moral-psychological personality of the injured person, hence the cash compensation for

23 Ibid., p.31.

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non-pecuniary damage is not even a true compensation because it cannot bring back the situation which existed before it was caused, thus its nature is not reparative. On the contrary, a cash compensation for non-pecuniary damage is one type of satisfaction given to the injured person as their non-pecuniary goods were harmed. Estimating a cash compensation for non-pecuniary damage is a very delicate and complicated procedure because there are no general norms considering different moral-psychological constitution of every individual as well as considering other circumstances in which the damage was caused and which harmed non-pecuniary goods of the injured person. Therefore, it would be wrong to expect, as it does Cantonal Court in the judgment of first instance, to suggest finding the evidence which would exactly establish the intensity and duration of non-pecuniary damage in order to determine the amount of damage caused.

However, even though there is the discretion of the court when determining the amount of cash compensation for non-pecuniary damage, this discretion of the court is not absolute, which is also mentioned in paragraph 2 of Article 200 of the Law on Obligatory Relations according to which ‘courts assess the importance of harmed goods and the aim of compensation,’ while taking into the account the circumstances of every individual case. From the perspective of Article 10 of European Convention, the Constitutional Court notices that the court decision on the amount of compensation for non-pecuniary damage can violate the principle of proportionality between the extent of court interference into freedom of expression and the importance of interest which is due to be fulfilled by limiting this freedom. [...] Beside this, the Constitutional Court in its practice concluded that it was necessary for courts, when determining whether there is a legal basis and the amount of damage caused by defamation, to apply consistently the principles from relevant provisions of the Law on Obligatory Relations, Law on Protection against Defamation and the Law on Criminal Procedure, by taking into account the specificity of every concrete case, thus they would avoid any type of arbitrariness.24

Therefore, the discretion of every court related to the amount of non-pecuniary damage caused by defamation is limited precisely by the necessity of proportionality expressed in Article 10 of European Convention, that is, by the demand for reasons and justifications given by the courts to be relevant and sufficient, that is, for courts to base their decisions on an acceptable analysis of relevant facts.25

Taking into account that the content of expressed information in this case attacked the plaintiff as a private person who, unlike public figures, does not have to show a higher level of tolerance, the Constitutional Court concluded that:

when deciding on the type of satisfaction which belongs to the first plaintiff, the

24 See Decision AP 1203/05, Supra note 18.25 Supra note 22, p. 32-34.

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Supreme Court did not explain which circumstances were assessed when it decided that the awarded cash compensation for damage in fact represents satisfaction which will establish a fair balance between the applicant’s right to freedom of expression and the plaintiff’s right to reputation. Especially, the Supreme Court did not deal with the question of what the goal of disputable article was which primarily referred to removing the municipal chief from his position and his statements on the corruption in the municipality. The Supreme Court concluded only that certain facts about the first plaintiff which were published in the disputable article were false. However, this is not enough to conclude that the cash compensation achieved the necessary proportionality between the applicant’s right to freedom of expression and the plaintiff’s right to reputation in the community where he, as a private person, lives and works, that is, that such proportionality would not have been achieved even by a different type of satisfaction such as publishing the judgment, retraction and similar, having in mind the circumstances of this case. On the other hand, the Constitutional Court notices that the first plaintiff did not even try to publish a retraction although Article 8 of the Law on Protection against Defamation prescribes the duty of injured person to take all necessary measures in order to mitigate the damage caused by stating false facts, and especially to make a request for retraction to the person who caused damage. In the specific case, nothing is indicating that the first plaintiff was prevented to demand the retraction of disputable text in order to mitigate harmful consequences which could have certainly had some influence on the court decision on the type of satisfaction which would be fair and sufficient, that is in this concrete case, on the amount of adjudged non-pecuniary damage, nor did the impugned judgment show that this was taken into consideration and how.26

Based on everything that was said, the Constitutional Court stated that the impugned judgment which made the applicant pay damages to the first plaintiff cannot justify adjudging damage compensation in order to protect the reputation of the first plaintiff proportionally to the gravity of harming the plaintiff’s reputation and the amount of interference of courts into the freedom of expression. Therefore, it was concluded that Article 10 of European Convention was violated because the Supreme Court:

crossed the boundary of its discretional authorization when determining the type of fair satisfaction, that is, the amount of non-pecuniary damage due to defamation because it did not base its decision on an acceptable analysis of relevant facts and all circumstances which were important for the specific case related to harming the plaintiff’s reputation and that the reasons given in the impugned judgment cannot be seen as relevant and sufficient in the sense of Article 10 of European Convention.27

26 Ibid., p.35.27 Ibid., p.36.

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Determining the amount of non-pecuniary damage

5. Case AP 1288/0628

The case deals with the same applicant as the previous one and establishes that the article published by the applicant cited several factual statements about the plaintiff that were proven to be false by the court in the first instance, that is, they were not proven. This is why the court of first instance concluded that certain parts of the disputable text are defamation that caused damage to the reputation of the first plaintiff and, therefore, there is basis for compensation. The applicant was obligated to pay 3,000BAM; this amount was confirmed by the Supreme Court in the appeal procedure.

When deciding on the appeal against these judgments, the Constitutional Court firstly emphasized that certain quotes in the disputable article (that a cousin of the plaintiff was “a grey eminence” in the Joint Command of Army of FB-H, that the plaintiff used “his connections in SFOR to recently send the proposal of names of four Croatian generals who were soon supposed to become a part of future armed forces of B-H where his name appeared, too,” that the plaintiff became a general “although he has not even seen a front line as he suddenly got sick and left the enclaves”) were wrongly qualified by the Cantonal Court as value judgments as these were factual statements which were supposed to be proven and which was not done by the applicant. Also, the Constitutional Court noticed that the applicant:

did not even deny the statements of the plaintiff that this was false, nor did he defend himself by ‘honest intention’ as a type of replacement for proving the innocence, and nor did he show that he made a reasonable effort in order to verify stated facts. During the proceedings, the applicant insisted only on the fact that it was ‘unclear in which way the prosecution was proving that publishing such article made him suffer any shame or inconvenience’ and he also disputed the amount given in the statement of claim.29

By applying the standards and principles used in the previously described case, the Constitutional Court reached a different conclusion – that there was no violation of Article 10 of the European Convention. The Court’s decision was explained in the following manner:

The applicant published false facts about the plaintiff and he had not even tried to verify the disputable information which he was obligated to do. Courts made it clear

28 Decision on appeal, applicant: ‘Slobodna Dalmacija’ d.d Split, Constitutional Court of B-H (AP 1288/06), 18 October 2007, http://www.ustavnisud.ba/bos/odluke/povuci_html.php?pid=92336 (accessed 22 March 2012).29 Ibid., p. 28.

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that the content of stated information was an attack on the plaintiff as a public figure and especially on his reputation which also made public trust him less. Therefore, the Cantonal Court heard the plaintiff as an injured person and it established that it was hard for him to see false facts in the disputable article because the plaintiff was ‘a good example for his workers and that they probably wondered what kind of a person he was and what kind of a commandant he was’ and even that his son was asked at school ‘if it was his dad who betrayed his people’. Furthermore, the court stated that the aim of false information in the text was to present the plaintiff as ‘a person who is self-willed and immoral which certainly harms his reputation’ as well as to present him as a person who is capable of taking illegal actions in order to fulfill his goals. This especially refers to the part of the text which states that the plaintiff ‘constantly works on criminalization of military staff’ as the plaintiff is publicly characterized as a criminal. Having all this in mind, Cantonal Court also concluded that 3,000KM of compensation for the damage would be the right satisfaction while the applicant should be obligated to publish the caption and disposure of final sentence. The Court also explained that the priority should be placed on publishing the retraction instead of adjudging high compensations hence the rest of the statement of claim was repudiated.

Also, the Supreme Court decided that the applicant published false facts on purpose while making them sensational which is especially seen in the title and subtitle of the disputable text which was accepted as defamation by the Cantonal Court. Therefore, the Supreme Court concluded that the applicant did not follow generally accepted professional standards thus the statement of claim of the plaintiff is only partially well-founded regarding the amount of damage, which was also established by the court of first instance.

Therefore, even though announcing possible misconduct of public figures to the public is a justified goal of journalists and media in a democratic society, the Constitutional Court considers that in this specific case there was no honest intention of the applicant and there were no reasonable efforts made either to confirm the expressed facts or to mitigate harmful consequences later, especially having in mind that the plaintiff’s reaction was published only whereas the apology for unverified and false statements in the disputable text and retraction were not.

Having in mind the abovementioned, the Constitutional Court considers that the measures taken to protect the reputation of the plaintiff, that is, adjudging the mentioned amount of compensation for damage is proportional to the gravity of harming the plaintiff’s reputation as well as to the amount of interference of courts into freedom of expression which occurred when this measure was taken. Also, the Constitutional Court considers that impugned decisions of the courts did not cross the line of their discretional authorization when determining the amount of non-pecuniary damage caused by defamation as these decisions were based on an acceptable analysis of relevant facts and all circumstances important for the specific

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case and related to the harmed reputation of the plaintiff. The Constitutional Court saw provided expositions and reasons as relevant and sufficient in the sense of Article 10 of European Convention.301

Right to fair trial and privacy

The Constitutional Court also decided on appeals made by people who asked for protection against defamation, that is, plaintiffs whose complaints were not successful in defamation suits. In such cases, the applicants could not quote Article 10 of the European Convention, as the situation did not relate to their freedom of expression. Therefore, they most often based their appeals on the violation of right to fair trial found in Article 6 of European Convention or the right to privacy in Article 8 of European Convention.

1. Case No. U42/03312

Although Case No. U42/03 dealt with the assessment of the constitutionality of the Law on the Basis of Public Radio-Television System and Public Radio-Television Service of Bosnia and Herzegovina, the Constitutional Court’s stance was relevant to the application of Article 10 of the European Convention in general. Regarding the statements of the applicant related to the assessment of the Law’s constitutionality concerning the violation of Article 10 of the European Convention “due to establishing allegedly monopolist position of Public Radio-Television Service of Bosnia and Herzegovina in relation to the entity radio-television broadcasters,” the Constitutional Court concluded that:

therefore, Article 6 of European Convention does not protect state organs and institutions with public authorities. Moreover, European Convention stipulates that, when fulfilling their duties, all levels of state rule are obligated to respect the rights and obligations in it. In given context, the Constitutional Court considers that entity public radio-television broadcasters do not enjoy the protection of Article 10 either. Furthermore, the specific case does not contain elements due to which European Convention would have to be interpreted differently.

However, this position does not refer to the right of employees of public radio-television broadcasters to freedom of expression and information in Article 10 of European Convention. In that respect, the Constitutional Court also quotes the

30 Ibid., p.35-38.31 Decision on statement of claim, applicant: Deputy of Dr. Nikola Špirić, the Chairperson of the House of Representatives of the Parliament of Bosnia and Herzegovina, the Constitutional Court of B-H 42/03, 17 December 2004, http://www.ustavnisud.ba/bos/odluke/povuci_html.php?pid=24784 (accessed 22 March 2012)

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opinion of European Court of Human Rights such as the one in the judgment passed on 26 September 1995 related to case Vogt against Germany and other32

3., according to which the principles of Article 10 of European Convention are applicable to public officials, too, because, even though it is justified if the state imposes on public officials the obligation of discretion, considering their status, public officials are individuals and as such they are under the protection of Article 10 of European Convention.334

2. Case No. AP 427/06345

In this case, the applicant complained to the Constitutional Court because of an alleged violation of the right to fair trial and the right to privacy after lower courts rejected his request for compensation against weekly newspaper Ljiljan. The applicant stated that this weekly magazine published false information about him, that is, that he was a commander of HVO and that he gave an order to arrest all Muslims-Bosniaks in Jasenice near Mostar, which caused damage to him. Related to statements about the violation of Article 6 of the European Convention, the Constitutional Court, inter alia, stated the following:

The crucial proof was the realization that the defendants only took over the quote from a certain military document without questioning its nature and this is entirely compatible with the obligation of court to independently and responsibly, based on a versatile assess of all facts and proofs, decide which proofs will be accepted and which rejected and how it will qualify the entire evidence material (Article 8 of the Law on Criminal Procedure of FB-H).

As the main argument which the applicant used in order to support the claim that his right to fair trial was violated is the facts that the courts did not take into account his statements about damage that was caused to him when the defendants published that his participation in the war was proven by ‘a secret document’ which is not characterized as a public document, hence it does not meet the condition of confidentiality and it does not have the features of a public document [...] The Law on Protection against Defamation determines that there is no liability for defamation: a) if the expression contains opinion or if this expression is substantially true while only insignificant elements are false; b) if the person who caused the damage is obligated to express or deliver statements or if this person expressed or delivered statements during legislative, judiciary or managing procedure; c) if the expression or deliverance of statement was reasonable. The entire judiciary procedure shows that the text in weekly ‘Ljiljan’ denied by the applicant,

32 Vogt v. Germany (17851/91), paragraph 43, 1995, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 22 March 2012).33 Ibid., p.24-25.34 Decision of Constitutional Court of B-H (AP 427?06), 5 June 2007, Official Gazette of B-H No. 6/08, http://www.ustavnisud.ba/bos/odluke/povuci_html.php?pid=91421 (accessed 22 March 2012).

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meets the abovementioned criteria because this was not expressing one’s opinion but ‘delivering a statement’ given in some other source which was basically reasonable. The Law on Protection against Defamation and the practice of European Court of Human Rights do not make a distinction between whether the deliverance of information came from public or secret document, whether this document was published or not, whether the applicant was able to see this document, whether the source of the document was demanded or not. The main issue is that this document exists and that the author or publisher of newspapers only delivers it, quotes or gives information which can already be found in it. There is no damage caused to a person if there is only a deliverance of what already exists in some document.356 

The Constitutional Court concluded that there was no violation of the right to fair trial just because the courts that made the impugned decisions concluded that there was no defamation. Therefore, the editor of magazine and the author of text did not cause any damage.

Related to the alleged violation of the rights prescribed in Article 8 of the European Convention, the Constitutional Court stated:

this Article does not protect relations in public life sphere and the statements in the appeal show that facts and proofs offered by the applicant are related precisely to his public activities and not private ones. The practice of European Court confirms that it is very difficult to distinguish what the public sphere of an individual is and what the private one is, considering numerous relations of an individual. However, the public sphere of activities of an individual in all democratic countries is particularly assessed and established and hence it is exposed to a stronger social criticism and supervision (see Niemitz versus Germany, judgment passed on 16 December 1992, series A, No. 251-B, point 29). 

[...] It is true that the violation of privacy can occur after publishing texts in newspapers which are intrusive to the privacy of an individual and which are related to ‘private, family and home life, physical and moral integrity, honor and reputation, avoiding to be presented in a bad light, not revealing irrelevant and shameful facts’ (for example, publishing certain photos, confidential phone calls, revealing details from a private life, etc.). However, specific texts about the applicant’s activities as the commander of a military unit during the war are not included in privacy but in ‘public function’ of the applicant during the war. The Constitutional Court considers that the circumstances of this case do not involve the question of the right ‘to private life’. Since in this specific case, the article does not tackle the applicant’s private sphere hence it does not enjoy a specific constitutional-legal protection, there is no violation of the right to private life of Article II/3.f) of the Constitution of Bosnia and Herzegovina and Article 8 of European Convention.367

35 Ibid., p.28-29.36 Ibid., p.37-38.

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3. Case AP 24/09378

This case was an appeal submitted to the Constitutional Court related to the violation of the right to fair trial because courts repudiated the charges demanding the defendant, a private person, compensations for damage caused by defamation. Namely, the applicant pressed charges against the defendant because he received three letters from him containing false information and claims which, according to the applicant, represent defamation. Furthermore, the applicant stated that the content or one part of the content of these letters was published in daily newspaper Oslobođenje.’The Municipal Court repudiated these charges as it established that the defendant sent a private letter to the applicant and that the content of these letters was not shared with a third person, nor did it identify the applicant to any other third person. Therefore, the Municipal Court stated that the evidence established that the media published information about letters in question “based on a source from the applicant’s circle” and that it was not proved that the defendant was liable for this. The Cantonal Court upheld this decision.

During the appeal, it was claimed that there was the defendant was liable for defamation as the content of letters was made available to a third person as he “knew or had to know that the applicant has a secretary, office, employees in the protocol which certainly have to be familiar with the content of all letters received through the protocol of the cabinet of reis-ul-ulema.”

However, the Constitutional Court established that the decisions did not violate the applicant’s with to fair trial in any way. Although the case was deciding whether the right given in Article 6 of the European Convention was violated, the Constitutional Court pointed out all general principles of freedom of expression of Article 10 of the European Convention. The Court concluded that the lower courts did not violate the applicant’s right to fair trial as they established that the conditions in Article 1 of the Law on Protection against Defamation were not fulfilled since it was certainly proven that the defendant was not the one who made the letters he wrote public, that is, that the defendant did not “identify the applicant to a third person”.

37 Decision of the Constitutional Court of B-H (AP 24/09), 23 September 2011, http://www.ustavnisud.ba/bos/odluke/povuci_html.php?pid=381782 (accessed 22 March 2012).

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EXPRESSIONS RELATED TO PUBLIC INTEREST MAT TERSMladen Srdić

One of the most important problems regarding the application of the standards of freedom of expression is certainly the treatment of public figures, especially politicians, in the media and the relation of this treatment with the issues con-cerning the public interest. With regards to this, the opinions in legal theory and practice have become rather clear and rather similar.

SUPERVISION OVER PUBLIC OFFICIALS

The Declaration of the Council of Europe on freedom of political debate in the media1

9, adopted in 2004, emphasizes the principle of “supervision of public over public officials.” According to this, public officials have to accept that they will be the subject of supervision and criticism of the public, especially in the media, re-garding the way in which they carried out or carry out their duties to the extent necessary to ensure transparency and responsible.

Regarding “the reputation of politicians and public officials,” it is recommended that politicians and public officials should not enjoy a greater protection of rep-utation and other rights than other individuals and hence national law should not stipulate more strict sanctions for the media criticizing political figures. Any deviation from this should be allowed only when it is absolutely necessary in order to allow public officials to carry out their functions in an adequate way.

On many occasions, the European Court considered cases when there was a pro-cedure before national courts based on alleged defamations and insults pointed at state institutions, politicians, or police officers (when ruling politicians and public officials benefited from these judgments). The Court mainly found that there was a violation of Article 10 of the European Convention.2

10 The basic opin-ion of the Court was that criticism of politicians should not be limited. The start-ing point is that politicians are voluntarily exposed to media and public analysis hence using offensive or exaggerated expressions against them can normally be considered a part of the democratic process. On the other hand, criticizing the privacy of politicians should be more moderate even in cases when the public is already familiar with this information.

1 Council of Europe, Declaration on Freedom of Political debate in Media (12 February 2004), https://wcd.coe.int/wcd/ViewDoc.jsp?id=118995&Lang=en (Accessed on 28 July 2011).2 The European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950), entered into force 3 September 1953.

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In the case of Lopes Gomes da Silva v. Portugal311, the applicant was the director of

a daily newspaper who criticized the election of Resende as leader of the right-wing party in the elections for Lisbon City Council. He accused Resende of being “ideologically....grotesque.... and....a clown” and stated that he was “an incredible mixture of crude reactionarism, fascist bigotry and coarse anti-Semitism.” Beside applicant’s article, numerous parts of texts written by Resende were presented. In the texts, he called the French Prime Minister at that time ‘a bold Jew’ and glorified the National Front and its leader Le Pen. The applicant was charged of defamation. The European Court of Human Rights established that the text con-tributed to a political debate on issues of public interest, the field where limita-tions of freedom of expression should be narrowly interpreted.

The Court emphasized the main principle “the limits of acceptable criticism are wider with regard to a politician acting in his public capacity than in relation to a private individual. A politician inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must display a greater degree of tolerance.“

The Court also stated that, although the style of the text is polemical, it was not an unfounded personal attack as the applicant provided an objective explana-tion. In addition, it emphasized that“political attacks often turn to a private sphere; this is the danger of politics and of a free debate about ideas which ensure a demo-cratic society.” The Court reiterates that ‘’journalistic freedom also covers a possible resort to exaggeration or even provocation.“

Furthermore, the Court highlighted that “political invective often spills over into the personal sphere; such are the hazards of politics and the free debate of ideas, which are the guarantees of a democratic society.” The Court also concluded that the style of the applicant’s article was influenced by that of Resende, as parts of his very polemical texts were published in parallel. Beside this, the Court emphasized the importance of the fact that publishing the other texts, along with the introduction of issue, the applicant acted entirely in line with rules of journalistic profession. In this way, by reacting to such texts, he allowed readers to form their own opinion by placing the editorial in question alongside the declarations of the person referred to in that edi-torial. “’What matters is not that the applicant was sentenced to a minor penalty, but that he was convicted at all. Therefore, the journalist’s conviction was not therefore rea-sonably proportional to the pursuit of the legitimate aim, having regard to the interest of a democratic society in ensuring and maintaining the freedom of the press.” In this case, the European Court established that there was a violation of Article 10.

Because the applicant criticized an allegedly injured politician that previously

3 Lopes Gomes da Silva v. Portugal (37698/97), 28 September 2000, http://www.iidh.ed.cr/comunidades/libertadexpresion/docs/le_europeo/lopes%20gomes%20da%20silva%20v.%20portugal.htm (accessed on 28 July 2011).

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expressed anti-Semitic opinions, the European Court took into account a wider context of this expression (as it regularly does) and not just an isolated expres-sion of the applicant.

LIMITS OF ALLOWED CRITICISM

At this point, we will again mention the often quoted case of Lingens v. Austria.412 In

this case, the European Court determined that the limits of acceptable criticism of a political leader are wider than those of ‘regular’ individuals. It is certain that poli-ticians, too, enjoy the protection under paragraph 2, Article 10 of the European Convention, but the demands of protection of their reputation must be assessed in line with the public interest of open debates on political issues in a society.

In the case of Bowman v. UK513, the European Court determined that “a debate

on serious matters of public interest, and particularly a political debate, enjoys the highest level of protection, which is especially valid for a public debate during elec-tion campaigns.“ This emphasized the importance of freedom of press in times of elections. The opinion of the Court was that political expression has one of the key roles in a democratic society both regarding the election process and regarding everyday issues of public interest.

The limitations of allowed criticism are much wider when criticism refers to gov-ernment, than when it refers to an individual politician. In a democratic society, acting or non-acting of the government must undergo media analysis. The gov-ernment should not use its dominant position to approach the measures which limit freedom of expression, especially when it comes to criminal proceedings. The reason for this is that sometimes these measures can be a type of response to attacks and criticism of opponents of the governemnt or the media. This is important because, regardless of the fact that executive and legislative power should be separated, it is well known that in many societies this is not the reality.

Regarding the treatment of politicians, we can observe the judgment of the Eu-ropean Court in the case of Krasulya v. Russia.6

14 The applicant in this case, Vasiliy Aleksandrovich Krasulya, was the editor-in-chief of regional newspaper of Stav-ropol ‘Noviy Grazhdanskiv Mir.’ This newspaper published an article under a pseudonym which comments on the decision of the town’s legislative body to change the mayoral election process as to have the mayor be chosen by the leg-islative body of the town and not by the city’s residents. Furthermore, the article

4 Lingens v. Austria (9815/82), 8 July1986, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 22 March 2012).5 Bowman v. United Kingdom ( 141/1996/762/959), 19 February 1998, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 22 March 2012).6 Krasulya v.Russia (12365/03), http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 12 May 2012).

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states that the decision was made under the pressure of Mr. Chernogorov, the governor of the Stavropol region. In the article, Mr. Chernogorov is called “loud, ambitious and completely incompetent.“

Chernogorov pressed defamation charges against Mr.Krasulya, claiming that the article is defamatory and harms his honor, dignity, and professional reputation, especially due to the statements which, in his opinion, accuse him of bribery. The County Court of Stavropol pronounced Krasulva guilty of defamation, but innocent regarding the public offense of an official, and he was on parole for one year. The Regional Court confirmed this judgment. The applicant objected and stated that the criminal procedure regarding defamation was a violation of his right to freedom of expression, which is contrary to Article 10 of the Convention.

The European Court concluded that both parties agreed on the fact that the judgment related to the applicant was ‘an interference’ into his right to free-dom of expression, that it was “prescribed by law,“ and that “it had a legitimate goal.“ When it comes to the question of whether this was necessary in a demo-cratic society, the Court stated that every limitation on journalistic freedom of Mr.Krasulya as a journalist and editor-in-chief of the newspaper had to be cor-rectly explained and that, on the other hand, Mr. Chernogorov as a politician, consciously and inevitably exposed his acts and words to public control and that he should have shown a greater level of tolerance to criticism. The Court reiter-ated that “there was very little scope under Article 10 for restriction of political debate on questions of public interest,“ and that “the article’s subject matter did indeed raise important issues of public concern and contributed to an on-going political debate: it concerned the decision of the town legislative body to abolish mayoral elections,“ suggesting that Chernogorov unlawfully interfered in this process. Then, the Court concluded that “it was difficult to determine whether the statements concerning the governor’s influence had been a state-ment of fact or a value judgment,“ and could not agree with the domestic courts’ interpretation that the article accused Mr Chernogorov of bribery, finding that it “only alluded to his influence and, through the use of the future tense, had made suppositions rather than stating facts.” Moreover, the Court found that it was undisputed that the governor attended the legislative body’s session and tried to persuade them to vote for the decision. Therefore, the published article had a sufficient factual basis.

Further to that, the Court considered that the comments on the governor’s man-agerial abilities and his miraculous escape from defeat in elections were “subjec-tive value judgments and could obviously not be proved.” The Court established that “the article did not resort to offensive language and did not go beyond the generally accepted degree of exaggeration or provocation.“

Finally, the Court held that Mr Krasulya’s suspended prison sentence was dis-

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proportionally severe because it effectively restricted his journalistic freedom by threating him with prison time if he committed any further related offences within the following six months. The Court therefore held that there had been a violation of Article 10 in this case.

This example is good for analyzing the elements taken into account by the Eu-ropean Court when the cases deal with expressions of public interest and when they refer to politicians. First, the court determines whether a politician (usually the plaintiff in the court procedure) exposed his words and acts to public control and whether this person has to show a greater level of tolerance. Also, it is as-sessd whether the disputable article or program truly dealt with issues of public interest and then whether there was a sufficient factual basis for a disputable expression, whether the comments refering to politician’s competence were subjective value judgments, that is, whether they can be proved or not.

The European Court of Human Rights does not provide a special protection of political and public figures in one country, nor protection of foreign officials. In the case of Colombani et al. v. France7

15, the applicants were found guilty for ‘insult-ing a foreign president’ due to publishing a text which, among other, identified Morocco as one of the leading drug exporters.

The judgment of European Court stated that:

a special status of heads of state would be derogated from the general law and could not be reconciled with modern practice and political conceptions, since its effect was to afford them immunity from criticism solely because of their function or status, irrespective of whether the criticism was justified. In the Court’s view, that privilege went beyond what was necessary to achieve the objective.

PRACTICE OF COURTS IN BOSNIA AND HERZEGOVINA

In our entity laws, the treatment of the expressions related to issues of political or public interest – if the injured person is or was a public official, or a candi-date for a function of public organs, and if this person has, according to general opinion of the public, a significant influence on issues of political or public inter-est – was solved in the way that the person who is the author of expression is liable for possible damage caused by stating or disseminating expressions only if he/she knew that the expression was false or if he/she was careless and thus neglected that the expression was false. Therefore, in these cases, the standard of liability is milder than in other cases that do not have the elements of public interest or a public figure as an injured person

7 Colombani et al. v. France (51279/99), 25 June 2002, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 22 March 2012).

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(when the author can be liable solely on the basis of damage caused by false in-formation). In any case, this is a very advanced solution contributing to freedom of expression and it is in line with principles established in decisions of European Court. It is certain that the practice is often vague and that courts sometimes do not take into account this mild standard of liability when deciding on each indi-vidual case. Still, we can say that, in this regard, we are ahead of some countries in the region, especially ahead of Serbia and Montenegro, where it often happens that courts adjudge greater compensations for public figures and politicians, be-lieving that they have to be protected more than regular citizens.

Responsibility of politicians and public officials

The example of judgment of Basic Court in Banjaluka in case No. P-2033/01 shows us how domestic courts decided, in line with the abovementioned provisions of the Law on Protection against Defamation of RS8

16, on the liability of the defendant in case where the plaintiff is a politician. In this case, the plaintiff K.P. made charges before the Basic Court in Banjaluka demanding the compensation for non-pecuni-ary damage against Journalistic, Editorial, and Graphics Company ‘Nezavisne no-vine,’ due to allegedly tendentious, suggestive, and malicious way in which they presented the work of the plaintiff as a high official in the Government of RS. He claimed that it was stated that he was opposing the decisions of the Constitu-tional Court, as the defendant published in articles titled “K. Is deceiving the pub-lic,” “OEBS follows the road, K. Follows the forest” and he believed that such titles represent typical defamation. The judgment of Basic Court in Banjaluka, passed on 13 January 2004, repudiated the statement of claim of the plaintiff because its opinion was that the titles did not violate Article 10 of the Convention, “because the limitations of acceptable criticism are wider when it comes to a politician than to a private person’’, as in this case the plaintiff was aware that he publicly commented on the Decision of Constitutional Court of RS hence he exposed himself to a public and journalistic supervision. The Court concluded the following:

The context of the content of these two articles and information they published, limitations of freedom found in paragraph 2, Article 10 of the Convention would make journalists reluctant to publicly discuss the issues related to the community, and sanctions demanded by the plaintiff could impose limitations on the press when fulfilling its tasks of an information provider and keeping its eyes open.

Judgment No. P – 19/04 of April 28th 2005, passed by the Sarajevo Cantonal Court concluded that even the president of a local community is a public official and

8 Law on Protection against Defamation of RS (Banja Luka, July 2001), Official Gazette of Republika Srpska 28/94, entered into force 1 August 2001.

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that this person is to suffer more criticism than a private person. The Court took into account that this president was responsible for humanitarian aid and dona-tions for reparations in the local community (to which the published expression referred in the first place), which was certainly an issue of public interest in such a small community. This is how the exposition of the judgment states:It is undisputable that the plaintiff is the president of LC Glogova which is not a high political function, but it is still in a small community as the one in village of Glogova, hence it can be a significant public function.

Making distinction between value judgments and facts

The judgment of the Sarajevo Cantonal Court No. P- 41/04 of March 10th 2005, took into account the elements of public interest and treatment of public figures hence it was concluded that one part of expression in question was defamatory and the other one was not. Also, the judgment dealt with the dissemination of information and the protection of confidential sources, tackling several issues we have previously discussed. Therefore, it can be useful to observe one part of the exposition and see what the Court based its opinion and legislative stance on, thus it partially satisfied the statement of claim and adjudged 6,000KM to the plaintiff as a compensation for non-pecuniary damage to his reputation:

Statements about the plaintiff being ideologically close to Party of Democratic Action (SDA) are not defamatory hence no harm is caused to his reputation since “they express value judgments, that is, the opinion of the author on political activi-ties of the plaintiff, thus this expression is protected by positive legal provisions and paragraph1, Article 10 of European Convention on Protection of Human Rights and Fundamental Freedoms.”

90 17 Therefore, in this part, the Court accepted the state-

ment of claim. Among other, defendants claimed that the plaintiff was “a war profiteer and criminal” and in this case such statements are defamatory because “the abovementioned qualifications referring to the plaintiff cannot be seen as an opinion, idea or attitude regarding political activities of the plaintiff, instead these are factual statements which were proven to be false and defamatory as these ex-pressions harm the reputation of the plaintiff.’’

The abovementioned judgment was confirmed by the judgment of the Su-preme Court of FB-H. After the defendants submitted an appeal to the Consti-tutional Court of B-H due to alleged violation of right to freedom of expression, in its decision No. AP 1881/05

10 18 the Constitutional Court repudiated the appeal

9 Judgment of Sarajevo Cantonal Court (P-41/04), 10 March 2005. 10 Decision on appeal, applicants: Amarildo Gutić et al. Constitutional Court of Bosnia and Herzegovina (AP 1881/05), 20 October 2006, http://www.ustavnisud.ba/bos/odluke/povuci_html.php?pid=53442 (accessed on 22 March 2012).

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as an unfounded one and confirmed the judgments of other courts – “there was no honest intention of the applicants and there were no reasonable efforts made in order to confirm the expressed facts’’ nor did they “do anything to verify with the plaintiff the data which was intended to be published.’’ Therefore, the Court decid-ed that the applicant’s facts were untrue and malicious and the plaintiff should not tolerate them as they attacked his reputation.

Principle of proportionality

Also, the Constitutional Court of Bosnia and Herzegovina, in case No. AP 2759/06, dealt with the appeal of Hilmo Popović on 26 February 2009, when the plaintiff pressed charges before the Municipal Court against the applicant in order to get a compensation for damage caused by defamation.

The charges stated that at the meeting of Municipal Council of Municipality of Goražde, the applicant, as a councilor of the Municipal Council stated:

Let’s say detaining a director of Public Communal Enterprise, and it seems to me that the reason was the show broadcasted the day before yesterday, ‘365 dana između’(‘365 days in between’) when there were some criticism or accusations com-ing from both sides, and where, it seems to me, as a result of the show, yesterday, I suppose the Prime Minister arranged detaining....and this man was kept in custody for interrogation yesterday.

The judgment of the Municipal Court made the applicant obligated to pay 2,000KM to the plaintiff on the basis of non-pecuniary damage. In judgment No. Gž-59/05 of March 14th 2005, the Cantonal Court, reversed the decision of the first instance in order to obligate the applicant retract his statement on public enterprise of TV BPK Goražde and to pay compensations to the harmed party. Regarding the rest, the Cantonal Court repudiated the appeal and confirmed the judgment of first instance.

The Constitutional Court in the exposition of its judgment states:

that the applicant expression was significantly cautious. The Constitutional Court also notices that the applicant stated the disputable expression as a municipal councellor at the meeting of municipal council while discussing the issues of public interest, that the statement referred to Prime Minister who is a public figure himself and that this was not an attack on a private life of the plaintiff. Having this in mind, the Constitutional Court concluded that in this specific case the principle of propor-tionality was violated, or more precisely the proportionality between the need to protect a legitimate goal, the reputation of the plaintiff on one hand, and on the other, the need to ensure the applicant’s right to freedom of expression, that is, that

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such interference in the applicant’s right was not ‘an urgent social need’ in the sense of Article 10 of European Convention.1119

OFFENSIVE, DISTURBING AND SHOCKING INFORMATION

In the context of issues of public interest and treatment of politicians, it would be useful to discuss the decision of the European Court in the 2007 case of Lepojić v. Serbia12

20. The Court determined that domestic courts violated the right to freedom of expression (found in Article 10 of European Convention) by pass-ing a criminal sentence and judgment passed against Lepojić. In this case, Mu-nicipal Court in Babušnica (Serbia) pronounced Zoran Lepojić guilty, because in his text named “A Despotic Mayor” (‘Nasilnički predsednik’), appeared in issue no. 1, page 10, of a newsletter called Narodne lužnicke he wrote: “Therefore, Pe-tar Jončić... in his ‘JUL euphoria’, in line with the slogan “money talks” and for his own existential needs, [P.J.] has continued with his near-insane spending of the money belonging to the citizens of the Municipality on ... sponsorships ... [and] ... gala lun-cheons ....“1321

On March 18th 2005, the Municipal Court ruled partly in favor of the Mayor and ordered the applicant to pay CSD 120,000 in compensation for non-pecuniary damage to his honor and reputation together with default interest. The Court stated that the plaintiff was a famous person with a good reputation, otherwise the citizens would not have elected him for a mayor. Moreover, he was a long-time director of a successful company which was successful even in difficult pe-riods of economy and gave its workers their salaries even in time when other companies were closing down, “and that all this shows that the harm that the plaintiff suffered is a lot more important than it would have been in the case of any other regular citizen”[bolding by author]. When discussing the ap-peal to this judgment, the County Court in Pirot confirmed the judgment of the Municipal Court in Babušnica and repudiated the appeal as an unfounded one.

In the abovementioned judgment of the European Court in the Lepojić case, it was concluded that the right to freedom of expression stipulated by Article 10

is one of the essential foundations of any democratic society and, according to paragraph 2, it is not valid just for the ‘information’ or ‘ideas’ which are accepted or seen as offensive, but also for all that offends, disturbs or shocks. Further on, the Court confirmed the right to deliver the information of public interest in bona fide, even when it includes harmful statements of individuals, and emphasized

11 Judgment of Cantonal Court (Gž-59/05), 14 March 2005. 12 Lepojić v. Serbia (13909/05), 6 November 2007, http://www.5rb.com/case/Lepojic-v-Serbia (accessed 28 July 2011).13 Ibid.

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that the limitations of acceptable criticism are wider when it comes to politi-cians: “While precious for all, freedom of expression is particularly important for po-litical parties and their active members, as well as during election campaigns when opinions and information of all kinds should be permitted to circulate freely.’’ 14

22 The European Court also noticed that “the applicant had clearly written the impugned article in the course of an ongoing election campaign and in his capacity as a politi-cian, notwithstanding the Government’s submission concerning the specifics of his signature. The target of the applicant’s criticism was the Mayor, himself a public fig-ure, and the word ‘sumanuto’ was obviously not used to describe the latter’s mental state but rather to explain the manner in which he had allegedly been spending the money of the local taxpayers” and concluded that the applicant clearly had some reason to believe that the Mayor might have been involved in criminal activity and, also, that his tenure was unlawful. Furthermore, the Court notices that “al-though the applicant’s article contained some strong language, it was not a gratuitous personal attack and focused on issues of public interest rather than the Mayor’s private life.” [bolding by author] Also, the Court states that “In view of the above and especially bearing in mind the seriousness of the criminal sanctions involved, as well as the domestic courts’ dubious reasoning to the effect that the honor, reputation and dignity of the Mayor ‘had more significance than ... [the honor, reputation and dignity] ... of an ordinary citizen’, the Court finds that the interference in question was not necessary in a democratic society. Accordingly, there has been a violation of Article 10 of the Convention.”

The second judgment of the European Court of Human Rights passed in the case of Filipović v. Serbia15

23, also concluded that the interference of domestic court was not necessary in a democratic society and that Article 10 was violated. The violation occurred because the judgment of the litigation court was, without any doubt, interference into the applicant’s right to freedom of expression and that the target of his criticism was the mayor and a director of state enterprise. Hence, these courts, just as criminal courts, concluded that the applicant public-ly accused the representative of municipality for a criminal act of embezzlement without him being charged of this act. In the Court’s opinion, the applicant had a legitimate reason to believe that the mayor could have been involved in tax fraud, and his statement, in spite of containing serious claims, was not a private attack on the mayor made without any reason.

These examples show us how national courts sometimes wrongly interpret that hon-or, reputation, and dignity of politicians and public figures are more important than honor and reputation of ordinary citizens. This was the exact opinion of some courts

14 Supra note 12.15 Filipović v. Serbia (27935/05), 20 November 2007, http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/233813e697620022c1256864005232b7/8a306c7684222876c1257398004e147e?OpenDocument (accessed on 28 July 2011).

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in Montenegro related to famous cases when the plaintiff was Emir Kusturica (a typical example of a person who is not a politician but who willingly chose to enter the ‘public sphere’ hence this person must be more tolerant when it comes to criticism) or Milo Đukanović, a former president and Prime Minister of Montenegro. Domestic courts adjudged very high amounts of compensation. We have to mention that there were cases like this in B-H as well, but luckily, these are quite rare, probably the consequence of explicit legal provision prescribing a milder standard of liability of authors of expres-sion when it comes to politicians and other public people.

It is a positive thing that, based on the abovementioned judgments of the Eu-ropean Court, due to “the need of domestic courts to have in mind international standards when dealing with cases of criminal acts against honor and reputation,” the opinion of the Supreme Court of Serbia at the meeting on 25 November 2008 was the following:

The limitations of acceptable criticism are wider when it comes to public figures then to private persons. Unlike ordinary citizens, public figures are willingly and con-sciously exposed to a thorough analysis of every word they say and of all their acts both by journalists and by the public in general, hence they have to express a greater level of tolerance.

Of course, in order for national courts to apply international standards, it is not nec-essary to take the opinion of another country’s Supreme Court, as the application of standards of the European Court is mandatory in all countries in the Council of Europe. However, considering that sometimes a low level of education of domestic judges leads to resistance in the application of precedent law, it can also be useful if domestic courts at a higher level have an influence on a regular work of courts at lower levels by expressing their opinion in line with that of the European Court.

In Bosnia and Herzegovina, judges have a slightly easier job, as there is a rich practice of the Constitutional Court of B-H which, as an appellative authority, makes decisions based on a form which is very similar to the one of the Euro-pean Court where the Court quotes the standards of European Court. Of course, there are no formally legal obstacles for these judgments, as precedents are not used by judges from other countries in the region, especially because there is no language barrier, since language barriers can sometimes make the approach to decisions of the European Court more difficult.

STATUS OF LEGAL ENTITIES

It is very important to say that standards referring to politicians and public figures are also applicable when some legal entitys are in question, primarily big companies and corporations, which the European Court considered in

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the case of Steel and Morris v. UK161 in 2005.

This case dealt with two British citizens, Helen Steeel and David Morris, who were members of Greenpeace in London. In the mid-eighties, Greenpeace in London started a campaign against McDonald’s. In 1986, as a part of the campaign, a six-page leaflet titled ‘What’s wrong with McDonald’s?’ was pub-lished and distributed. In 1990, the McDonald’s Corporation issued a writ against the applicants, demanding the compensation for damage caused because they allegedly published the leaflet. The applicants denied pub-lication and that the challenged statement had the meanings attributed to them by McDonald’s. They also stated that it was not possible for these meanings to be defamatory. Further, they highlighted that the words were substantially true and that they were a fair comment on matters of fact. The procedure lasted for 313 days and it was the longest trial in the history of English legislature. Finally, a compensation of 40,000 pounds was adjudged. The applicants objected and argued that, based on Article 6, paragraph 1 of the Convention, the procedure was unfair, primarily because of the fact that they were not allowed to get legal aid, and based on Article 10, that the pro-ceedings and their outcome caused a disproportional interference in their right to freedom of expression.

The defendants also objected that the burden of proving the truth was too heavy because, as they claimed, they were not involved in making the leaf-let, but only in the campaign. But, under Article 10 of the Convention, the burden of proving the truth is placed on the defendant no matter if this per-son objects or not. However, regarding the objection of the applicant related to adjudged compensation, in its exposition of the judgment, the European Court stated that the adjudged compensation was ‘disproportional’ and that:

The lack of procedural fairness and equality which has already been estab-lished by the Court, caused the violation of Article 10. Beside this, according to the Convention, the compensation for damage due to defamation has to be reasonably proportional to the harm caused to one’s reputation. It is true that no steps were taken to enforce the damages award against either ap-plicant, the fact remains that the substantial sums awarded against them have remained enforceable. In these circumstances, the Court finds that the award of damages in the present case was disproportional to the legitimate aim served hence there was a violation of Article 10.172

16 Steel and Morris v. United Kingdom (68416/01), 15 February 2005, http://www.uniset.ca/other/cs5/echr_mcdonalds.html (accessed 22 March 2012).17 Ibid.

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LEGAL STANDARDS REGARDING THE RELATION BETWEEN PUBLIC INTEREST AND THE TREATMENT OF PUBLIC FIGURES AND POLITICIANS

Based on all that has been said, it can be concluded that the domestic legislature and the practice of domestic courts and of the European Court of Human Rights, when it comes to the relation between public interest and treatment of public figures and politicians regarding freedom of expression, show the following:

• Political debates have the greatest degree of protection which is particu-larly valid for public debates during election campaign;

• Politicians must accept that they will be supervised and criticized by the public especially through media, with regard to the way in which they car-ried out their functions, hence they have to show a greater level of tolerance than ordinary citizens;

• The abovementioned is also valid for private persons who willingly entered ‘public sphere’, thus actively participate in public life and debates (e.g. pro-fessors, artists and others who appear on public scene and express their opinion on issues of public interest);

• The degree to which an individual entered public sphere or public debate serves for determining the level of tolerance which this person must have when it comes to criticism;

• When criticism is aimed at the private life of a politician, even when such information is already present in the public, those who express such criti-cism should use less polemical and moderate expressions. Also, what must be avoided is involving members of the family of public figures, especially those who are not willingly exposed to the media;

• Regarding the protection of private sphere of life, ‘ordinary citizens’ enjoy a greater level of protection than politicians and public figures;

• Limitations of allowed criticism are wider when criticism refers to the gov-ernment than to an individual citizen or even to a politician;

• When it comes to judges and prosecutors, the limitations of allowed criti-cism should normally be wider than when it comes to private persons, but narrower when it comes to politicians;

• When dealing with issues of public interest, journalistic freedom includes a possible exaggeration or even provocation. In every individual case, first it has to be established whether this issue really is an issue of public interest. This means examining the context of the disputed statement. In case it con-tributes to public debate on a social, local, national or international issues, the conclusion is usually that it referred to issues of public interest;

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• In case the expression refers to issues of public interest and if the injured per-son is a public official or politician; there is a liability for possible defamation only if the author knew that the expression was false or if this person care-lessly neglected that the expression was false (carelessness should here be determined according to professional standards if the author is a journalist).

At the end of this chapter, it should be mentioned that when making state-ments, special attention should be paid to the terminology used. In our coun-try, it often happens that politicians and other public figures are called ‘mafia’, ‘criminals’, ‘war criminals’, ‘fashists’ and similar in our media. Such expressions are normally treated as defamation, except when the person in question is in fact sentenced for a criminal act (or if there is an ongoing criminal procedure against this person). Therefore, such expressions are not well-measured and they are used lightly which in the public causes an effect that is opposite to the one inti-tially intended.

In case there is public interest to point at some possibly illegal activities of a public figure, especially of a politician, this must be done in a very moderate manner, without sensationalism and aggressive expressions; it is important that journalists behave professionaly and have a good factual basis. This is the only way in which media can realize their important role of ‘a watchdog’ in a demo-cratic society.

Some terms, such as ‘mob’ are so often used in the media that there is a ques-tion of how defamatory they are for a person in the first place and whether they should be sanctioned by courts in specific cases. Here we should remind our-selves that the Law on Protection against Defamation prescribes that their provi-sions are interpreted in a way which ensures the biggest extent of the principle of freedom of expression possible, but that courts should assess this type of ter-minology based on the context of expression and other elements of liability for every individual case.

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Chapter 4

RIGHT TO INFORMATION

NORMATIVE FR AME WORK OF THE RIGHT TO INFORMATION IN BOSNIA AND HERZEGOVINA

Mirjana Nadaždin-Defterdarević

Normative solutions for the right to information in Bosnia and Herzegovina are inevitably the reflection of its constitutional concept and overall complex politi-cal structures.

The structure of Bosnia and Herzegovina as a state is complicated and it tends to be rather inefficient; the field of right to information is not an exception to this situation. In fact, there were objective presumptions that indicated numer-ous problems the legislature would face in this field. Due to the specific circum-stances and the way in which it was created, the Constitution of B-H, Annex IV of Dayton Peace Agreement1

3 did not pay an appropriate amount of attention to the right to information.

The creators of the Constitution were aware of its shortcomings and the environ-ment for which it was intended. Therefore, they gave extremely high authoriza-tions to political representatives of the international community in B-H instead of prescribing the normative solutions. These authorizations were given in order to implement the peace agreement and they enabled political representatives of the international community to intervene in all the necessary situations.

Such authorizations served as a base for an explicit intervention of international community. This intervention manifested in the function of the High Represen-tative that encourages and imposes legally binding solutions referring to the right to information.

Therefore, the legislature in this field in Bosnia and Herzegovina has a fourth level, along with the state, entity and cantonal levels – the normative authoriza-tion of the international community.

Annex III of the Dayton Peace Agreement only mentions the importance of the media in the election period in the context of the OSCE’s role, while the Constitu-tion itself entrusts the sphere of media to the entities. This would later turn out to be a significant obstacle for every attempt to provide a norm for the right to information at the state level.

Additional interpretations could not diminish the damage caused by this formulation that was based on compromise and was devastating for the right to information. 1 General Framework Agreement for Peace in Bosnia and Herzegovina - Daytom Peace Agreement, Annex IV: the Constitution of Bosnia and Herzegovina (Paris, 14 Decem-ber 1995), entered into force 14 December 1995, http://www.ohr.int/dpa/default.asp?content_id=379 (accessed 21 March 2012).

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Such illogical and unpractical formulation was fostered primarily by the political will of entity authorities and it led to the creation of two parallel systems that fully, both normatively and in practice, but differently formulate the right to in-formation in Bosnia and Herzegovina.

After the war, the field of information in B-H inherited the concept of the previ-ous normative system that was formulated based on the demands of a central-ized state with great authorizations of control. In addition, this field was under a direct and actual influence of neighboring countries or it was indirectly based on the laws on information in Croatia and the former Federal Republic of Yugo-slavia. These laws were accepted without taking into account whether they were adequate for regulating the social context for which they were intended.

When passing authentic regulations in a particularly important sphere, the B-H legislature was rather weak and ineffective, forcing the international community to take the initiative.

Despite being a necessary and effective intervention, laws passed under the pa-tronage of the international community and the bodies established in order to act in the field of information created a legal parallelism and turned the field of information into a legal maze.

Media regulation in Bosnia and Herzegovina has four different levels of legal regulation. This is a consequence of the lack of good and operational regula-tions that illustrates the lack of democratization and developed self-regulation in this field.

CONSTITUTIONAL PROVISIONS AS DETERMINING FACTORS

In line with constitutional norms, B-H entities have legislative powers over the field of information, but they chose different ways of its implementation. The Federation of Bosnia and Herzegovina is organized on the basis of the decentral-ization principle. It consists of 10 cantons with a significant level of self-manage-ment that also includes the authorization for regulating the right to information. On the other hand, Republika Srpska chose the principle of exclusive centralism.

Once common and unique solutions inherited by B-H as the tradition of legal regulation of Socialist Federal Republic of Yugoslavia (SFRY) were not a realistic basis for such a legal particularism. This was especially true in the Federation of B-H, where these solutions were imposed from the outside rather than coming as a response to a realistic social situation searching for a legal norm to solve and prevent its conflict nature. The division of power stipulated by the Constitu-tion and the lack of any common normative starting point were the premises of newly found uneven solutions.

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The right to information covers a long list of special rights and freedoms con-tained in the freedom of information: freedom of expression, freedom of gath-ering information, researching, publishing and disseminating information, free-dom of printing and selling the press, production and broadcasting radio and television programs, freedom of receiving ideas and information, freedom of establishing legal entities which deal with public information.

Such domain of special rights and freedoms is common in comparative law and, although it was expected for normative framework of the Law on Information in Bosnia and Herzegovina to follow that pattern, this has not happened after all.

The specificity of the right to information also lies in the fact that its content is reg-ulated by norms from national and international law. Its enforcement is followed and assessed with the goal of determining both the true level of human rights enforcement in general, as well as the realization of freedom of expression espe-cially in the light of the binding standard of Article 10 of the European Convention.24

It is true that, when evaluating the realization of international standards in the domestic legal system, state bodies must have a certain degree of freedom to interpret their international obligations in accordance with specific social cir-cumstances. This is precisely the reason why the European Court uses the term “field of discretion of the court” and thus justifies specific solutions of the do-mestic legal system by a specific culture and specific environment in which they are realized.

The number and variety of legal norms in B-H, especially in the Federation of B-H, could fall under the standard of justified need of “a democratic society” but, even with a great effort, it would be difficult to defend this rationally.

Laws on information were passed during a time when they did not correspond to a realistic social environment; this made their application rather difficult. They were not passed as a response to social need, nor were they a confirmation of actual legal standards. Their normative solutions were not an expression of legal tradition, legal culture or realistic needs either; they were a reception of stan-dards of democratic society at an enviable level of development which Bosnia and Herzegovina could not reach at that time, nor any time soon.

In that sense, normative solutions for the Law on Public Information in Bosnia and Her-zegovina certainly comply with the standards of comparative law; after all, this field was created and developed under a constant supervision and active participation of

2 European Convention on Human Rights occupies a special position in domestic legal system of BiH; the Convention and its protocols contain human rights and freedoms which are directly applied while respectivng their priority over all other laws. The Consti-tution of B-H, OHR – Office of the High Representative, http://www.ccbh.ba/public/down/USTAV_BOSNE_I_HERCEGOVINE_bos.pdf (accessed 21 March 2012), Article II/2.

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the international community. However, laws need a “substrate of life,” adequateness and applicability to a specific content and a specific environment. Without this, they remain more or less successful normative formations with weak effects.

RIGHT TO INFORMATION IN REPUBLIKA SRPSKA AND IN THE FEDERATION OF B-H

The field of information in Republika Srpska is organized according to the prin-ciple of pure centralization.

Article 26 of the Constitution of Republika Srpska sets the framework for the right to information: it ensures freedom of the press and other mass media, free es-tablishment of print and publishing enterprises, issuing newspapers and public informing by other means all in in line with the law. Censorship is banned by paragraph 3 of Article 26.3

5

Mass media are obligated to perform their function of informing the public timely, accurately and objectively.4

The following paragraph ensures that “the right to correction of incorrect infor-mation shall be guaranteed to anyone whose right or legally determined inter-est has been violated, as well as the right to a compensation for damage arising therefrom.”5

6

The field of public information in Republika Srpska is regulated by the Law on Public Information6

7 and the Law on Radio-Television.78

The Law on Public Information proclaims the freedom of information and the ban of censorship; it also prescribes the way of establishing mass media and their or-ganization and cancellation and stipulates the obligation of registration. Mass media organizations start their work on the day of registration. The publishing of the announcements of state entities with a particular importance and urgency, responses and corrections are prescribed by the Law; in case the press outlet fails to fulfill these duties, the owner and editor in chief are legally liable.

The Law regulates restrictions on the right to information based on the ban on

3 The Constitution of Republika Srpska (1992), Official Gazette of RS No. 28/94, entered into force in 1994, http://www.ustavnisud.org/upload/4_8_2009_48_ustav_srpski.pdf (accessed 21 March 2012). 4 Ibid., Article 26, par.4.5 Ibid., Article 26. par. 5.6 Law on Public Information of RS (Banja Luka, 21 April 1997), Official Gazette of RS No.10/97, entered into force in 1997, http://www.podaci.net/_gBiH/propis/Zakon_o_javnom/Z-jinfor03v9710.html (accessed 23 March 2012).7 Law on Radio-Television of RS (Banja Luka, 10 April 1996), Official Gazette of RS No. 8/96, entered into force in 1996.

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dissemination of information and distribution of press that advocates a violent overthrow of the system and a violation of territorial integrity and sovereignty of Republika Srpska, violation of guaranteed freedoms and rights of citizens, causes hatred or encourages national, racial or religious intolerance.

However, the Law does not contain the provisions on free access to informa-tion, protection of sources and rights of journalists, hence deviating from usual European standards.

From the time the Dayton Peace Agreement was signed until the middle of 1998 there were no attempts of passing a law in this field for the Federation of B-H. This situation was a consequence of a provision found in the Constitution of FB-H8

9 that stipulated the authorization of cantons for “making policy concerning radio and television facilities, including decisions concerning regulation and provision thereof,”9

10 while the authorization of central bodies referred to “award-ing frequencies for radio and television.”10

11

Such division of authorizations in the legal system separated the allocation of frequencies from the right to establish radio-diffusion organizations. As it can be seen, print media are not mentioned in these provisions. This provision of the Constitution of FB-H should be understood as an obstacle for a more rational and practical solution. Amendment VIII, point F, allows the transfer of cantonal authori-zations to the Federation when there is a need for such solution. However, the cre-ation of a common legislative framework in this field for the territory of Federation was not seen as necessary, or as a common interest, for mainly political reasons.

SIMILARITIES AND DIFFERENCES AMONG CANTONAL LAWS

Out of ten cantons in the Federation of B-H, six of them passed their regulation in this field in 1998. These are the Posavski canton11

12, the Hercegbosanski canton1213,

the Zapadnohercegovački canton1314, the Sarajevo canton14

15, the Unsko-sanski

8 The Constitution of Federation of BiH (Sarajevo, 30 March 1994), Official Gazette of FBiH No. 1/94, entered into force 30 March 1994, http://skupstinabd.ba/ustavi/f/ustav_fed-eracije_bosne_i_hercegovine.pdf (accessed 21 March 2012).9 Ibid., Article III 4i.10 Ibid., Article III 1h. 11 Law on Public Information, Official Gazette of the Posavina Canton No. 3/98, entered into force in 1998. 12 Law on Public Information, Official Gazette of the Herzegbosanski Canton, No. 5/99.13 Law on Public Information (26 May 1998), Official Gazette of the Zapadnohercegovački Canton, No. 7/98, entered into force in 1998.14 Law on Media, Sarajevo Canton, Official Gazette of Sarajevo Canton,13/98.

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canton1516 and the Zeničko-dobojski canton16

17. The adoption of laws in this field started later on in the Tuzlansko-podrinjski canton and the Goraždanski canton.17

18 Two cantons of a mixed national structure did not regulate this field. These are the Hercegovačko-neretvanski canton and the Srednjobosanski canton.

All of these laws are somewhat similar but differences among them are still notable. Three cantons with a Croat majority (Posavski, Hercegbosanski and Zapadnohercegovački) have identical laws on public information. These laws are in fact the reception of the Law on Public Information of the Republic of Croa-tia. Some differences among them are found only in the importance attributed to some issues in cantonal laws. For example, the laws of the Posavski and Herce-gbosanski canton stipulate the same provision according to which one editor in chief cannot have any kind of immunity18

19, whereas such provision does not exist in the Law on Public Information of the Zapadnohercegovacki canton.

The Law of the Posavski canton contains a provision that does not exist in the Hercegbosanski or the Zapadnohercegovacki canton and refers to the obliga-tion of registering an outlet within 90 days of start of its work and to the adap-tion of establishing acts to the new legislative regulation. In case this provision is not respected, distribution or broadcasting will be banned.

The Law on Public Information of the Posavski canton has one fully authentic pro-vision not found in the Law of Croatia although this law was the model for the creation of the Law of the Posavski canton. This provision stipulates the establish-ment of the Council for Public Information consisting of seven members with the task of “following the situation of press-publishing activities, radio-diffusion and other, and it suggests measures of protection in making freedom of public information more advanced.”

Unlike these three laws, cantons with a Bosnian majority did not have a common template for passing their laws. This is visible in their names – the Sarajevo can-ton named this law the Law on Media in the Sarajevo Canton, whereas the other two19

20 accepted the name used before – Law on Public Information.

Although these three laws were not based on the same template, it is clear that they were passed under the influence of legal provisions in Croatia and Slovenia and that they rely heavily on solutions contained in the proposal on public and

15 Law on Public Information (12 June 1998),Official Gazette of USK, No.8/98, entered into force 15 July 1998.16 Law on Public Information, Official Gazette of ZDK, No. 13/98.17 See: Cantonal regulations – similarities and differences I and II, Media news, No. 24 and 25, Series I, 25 January and 8 February 1999.18 See: Article 17 of the Law on Public Information, Official Gazette of the Herzegbosanski Canton, No. 5/98.19 Zeničko-dobojski and Unsko-sanski Canton.

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commercial radio-television prepared by the European Media Institute in Dus-seldorf at the request of the OHR.

Out of these three laws201 the Law on Media of the Sarajevo canton is certainly

the most interesting one. It was the only law regulating the area of electronic media, filling in the gap in this field since laws were mainly oriented towards print media. New solutions united and reconciled contemporary experiences of the European countries. The authors of the Law on Media of the Sarajevo Canton had the task of regulating the field of media – this referred both to the norms of heteronomous and norms of autonomous legislation.21

2 The main shortcoming of this significant attempt to provide a comprehensive legal solution for media is its incompleteness; some very important fields remained outside the legisla-tive framework (this primarily refers to RTV stations of civil sector, ban of piracy, copyright, cable transmission).

All cantonal laws ensure freedom of expression as a basic human right, although they do formulate it in different ways. In that sense, the Law on Media of the Sarajevo Canton provides an interesting solution, as it stipulates that the free-dom of public expression includes freedom of expressing thoughts, gathering, researching, publishing and disseminating information and ideas regardless of the media through which enables it. This Law, unlike any other cantonal laws, explicitly bans censorship.

The Law of the Sarajevo canton also stipulates freedom of editorial policy in ac-cordance with professional ethical standards.

Access to information should be free and there should be equal conditions for everyone when it comes to information of public interest. The Law also stipu-lates situations when public institutions can deny the disclosure of requested information (if it has to do with public safety, defense or if it is a trade secret).

These matters were regulated in a similar way in the laws of the Unsko-sanski and Zeničko-dobojski cantons although their scope was narrower. These laws did not prescribe an explicit ban of censorship nor sanctions in case of unau-thorized denial of information disclosure. A state body was obligated to provide requested information within eight days or to provide a written explanation of reasons for denying the request.

The laws on public information of the Zapadnohercegovački, Hercegbosanski and Posavski cantons also stipulate an absolute ban on using force or abuse of office with a

20 Laws passed in Sarajevski, Unsko-sanski and Zeničko-dobojski Canton, op. a. 21 See more: Zoran Udovičić et. al., Mediji na prekretnici: Medijska slika BiH (Media at a milestone: the image of media in B-H), Media Online 2001, http//www.mediaonline.ba and Usvojen Zakon o medijima (Law on Media adopted) in Media News No. 11, Series I, Sarajevo, 27. VII 1998.

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goal of affecting the content and disclosure of public information, as well as any other type of illegal restriction of this freedom. Information held by legal entities and legisla-tive, executive, and judicial authorities should be available to journalists under equal conditions. Denying the disclosure of information is subject to sanctions.

All cantonal laws except the Law of the Zeničko-dobojski canton stipulate the right of journalists to protect the confidentiality of sources. The Posavski, Zapadnohercegovački and Hercegbosanski cantons extended this right to edi-tors, publishers, authors of books and authors of published reports who are not journalists. Disclosing the source can only be ordered by a court. In this sense, the law of the Sarajevo canton puts restrictions even on courts and stipulates that disclosing sources can be asked for only if it “prevents crimes against life.”

RIGHTS, LIMITATIONS AND SANCTIONS

Restrictions of the right to freedom of expression are set in all cantonal laws with slight differences related to analogue restrictions found in comparative law. Some of the most important ones are the protection of privacy, ban on en-couraging violence and ethnic or religious hatred, ban of public exposal to por-nography, ban on illegal gathering of information and restrictions in the sphere of broadcasting commercials in electronic media.

Provisions on the protection of privacy, dignity, reputation and honor of an in-dividual are stipulated by all cantonal laws without any exception. The right to protection of privacy is provided for public figures except in cases related to their public function. This restriction is clearly set everywhere except in the Law of the Unsko-sanski canton, where there is no difference between regular citi-zens and public figures when it comes to the protection of privacy.

The ban on public exposal to pornography is found in all cantonal laws. There is only a difference in definitions of the ban – the Posavski, Hercegbosanski, Zapadnohercegovački and Unsko-sanski cantons ban the press and other mass media that put pornographic content on the first page. The ban does not refer to special stores. On the other hand, the law of the Zeničko-dobojski canton does not limit this ban only to pornography on the first page, but extends it generally to the ban of public exposal and selling pornographic content.

Restrictions related to commercials are stipulated only in two cantonal laws – the Sarajevo Canton and the Unsko-sanski canton. Regulations of the Unsko-sanski canton are very general and there was no attempt to make them more concrete. The ban on interrupting religious programs with commercials was adopted as well as the ban on sponsorship of news programs. When setting restrictions for broadcasting commercials, the Law on Media of the Sarajevo Canton accepted

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the standards for electronic media in Europe.

The time of advertising is limited to eight minutes on public television and ten minutes on public radio per each hour of broadcasting. Advertising on commer-cial electronic media is treated somewhat differently.

During election campaigns, public and commercial RTV stations are obligated to provide equal access to all political parties, coalitions and candidates and pre-sentations of their political programs under equal conditions. At this time, it is also allowed to broadcast political propaganda videos on a commercial basis. Elections campaigns in Europe are normally free and paid political ads are not allowed. This is valid especially for public RTV stations.

Cantonal laws also treat the issue of media ownership in different ways. Each of them makes a step towards liberalization. Media can be founded by legal and private persons in all forms of property. The laws of the Sarajevo Canton stipu-lates that public media (public services) can also be founded by enterprises with mixed ownership, when the owners are representative bodies of authorities in cooperation with other legal and private persons.22

3 Other laws do not make any difference when it comes to such conditions regardless of whether public or commercial media are founded.

In the Unsko-sanski canton, foreign legal and private persons are also al-lowed to found mass media outlets as long as “the law that regulates foreign investments”23

4 is respected, whereas the Zeničko-dobojski canton does not al-low foreign legal and private persons to found mass media outlets, but does allow foreign capital to be included up to 49%.24

5 The laws of the Posavski, Her-cegbosanski and Zapadnohercegovački cantons do not contain provisions on media ownership, but they impose an obligation to legal persons that perform the activities of public announcing to submit data on persons who have more than 10% of shares and on the number of shares to the relevant ministry.25

6 None of the cantonal laws contain provisions on antitrust preventing the concentra-tion of media ownership, provisions usually found in most European countries.

All cantonal laws stipulate the obligation of keeping journalist, audio and video

22 “The founders of public media, on the other hand, can only be legal entities which are founded by parliaments – independently, jointly or in cooperation with other natural persons or legal entities.” According to: Usvojen Zakon o medijima (Law on Media adop-ted), Media News No. 11, Series I, Sarajevo, 27. VII 1998.23 Article 7 of. Law on Public Information (12 June 1998),Official Gazette of USK, No.8/98.24 Article 9 of the Law on Public Information, Official Gazette of ZDK, No. 13/98.25 See: Article 21 of the Law on Public Information, (26 May 1998), Official Gazette of the Zapadnohercegovački Canton, No. 7/98, and Article 21 of the Law on Public Information, Official Gazette of the Herzegbosanski Canton, No. 5/98.

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material in order to realize the right to correction or response of interested per-sons. Deadlines vary from 20 days in Bihać and 30 days in Sarajevo and Zenica, while the laws of the Posavski, Hercegbosanski and Zapadnohercegovački can-tons determine this with a special law that does not have a particular name.

The eight cantonal laws differ in penalties stipulated for the distribution of por-nographic materials, refusing to publish the content of urgent nature, not keep-ing video and audio materials, refusing to publish a correction of information ordered by the court, violation of responsible persons in media, violations of publisher, for institutions refusing to provide information without any legal jus-tification.

Stipulated penalties are rather uneven; what one law treats as behavior that is not allowed, the other law finds completely acceptable.

SHORTCOMINGS OF CANTONAL LAWS

The main shortcomings of cantonal laws are verbiage, diversity and disparity of criminal provisions, limitations of foreign capital, and particularly keeping the existing practice of legally stipulated records of mass media kept by public au-thorities. Media should be registered exclusively by courts, as is the case in most European countries and the standard of the European Court.

Types of criminal provisions contained in cantonal laws best illustrate the real re-lation of the authorities with media and discriminate between media based on how they present information with political content. There is a greater readiness of regularly sanctioning media than a state body which, for example, deprives the media of requested information.

RATIONALIZING AND ABANDONING NORMATIVE AUTHORIZATIONS

Normative solutions were initiated and passed under the pressure of the inter-national community and their goals were making the right to information in B-H more advanced and establishing the standards of comparative law in this field. Norms of the right to information were passed at the same time by local bodies and bodies of the international community. The competition of normative au-thorizations resulted in a very lively legislative activities in this field26

7 that could certainly not have been envisaged by the solutions set with the initial concept. A great number of norms that compete among themselves raise the question of 26 See: Law on Public Information (12 June 1998),Official Gazette of USK, No. 8/00; Law on Public Information, Official Gazette of TK 15/00; Law on Media, Official Gazette of KS 10/02; Law on Media, BPKG 17/00.

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which of them are justified and which are not.

The Law on the Cancellation of Law on Media of Sarajevo provides a unique an-swer to this question27

8.

The decision of the Parliament of the Sarajevo Canton to pass such law was ex-plained by the passing the Freedom of Access to Information Act, the Law on Pro-tection against Defamation and the amendment of the part referring to this field in criminal code, and the passing Communication Law28

9.

Beside this, the Parliament determined that the Independent Media Commis-sion (IMC) was established and then it grew into the Communications Regula-tory Agency (CRA). This became an independent body in charge of all issues of electronic media, including issuing licenses for broadcasting radio and televi-sion programs and keeping the records of all radio and television stations in B-H.

The IMC suggested that all journalistic associations in B-H pass and sign the Press Code regulating the most important issues of print media. The Press Council was formed through this act, basically completing the normative framework of au-tonomous law for print media. At the same time, the CRA drafted several Codes and directives related to media. According to the Parliament, this is how all is-sues related to media were regulated by the Law on Media of Sarajevo Canton.

Perhaps the cantons still insisting on their authorization over the right to infor-mation should consider the actions of the Parliament of Sarajevo Canton –trans-ferring their authorization to a greater level in order to have a more efficient and successful regulation of this field.

The right to information requires a clear and operational legislature. Its content should be realistically rooted into the environment in which it is supposed to be realized. Instead of precise regulation, it is better to choose regulation through legal standards that will be interpreted autonomously and evolutionally.

The standards of comparative law should be accepted but with a much needed correction of “the field of discretion of the court.”

The right to information is also called freedom of information. In that sense, the freedom should evolve, mature, and conquer. Better and more modern legal norms that do not reflect social reality will not make freedom greater nor will they make the law more efficient; it is more than certain that they will fail in their task.

27 Official Gazette of KS 15/09.28 Communication Law, Official Gazette of BiH 31/03.

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THE FREEDOM OF ACCESS TO INFORMATION AC TMehmed Halilović

The Freedom of Access to Information Act in Bosnia and Herzegovina110 was adopted

on October 18, 2000, in the House of Representatives and on October 23 in the House of Peoples in the Parliament of B-H. The Act was published on November 17 of the same year in the Official Gazette of B-H, No. 28/00. The Act was amended twice, first in 2006 (Official Gazette, No. 45/06), when public bodies were obligated to issue orders instead of ‘memoranda,’ and second in 2009 (Official Gazette, No. 102/092

11), when the amendment prescribed that public bodies and individuals are to be fined if they block access to information.

The Freedom of Access to Information Act of the Republika Srpska312 was adopted in

the National Assembly and was published on May 18, 2001, in the Official Gazette of RS, No 20/01. The Freedom of Access to Information Act of the Federation of B-H4

13 was adopted in both houses of Parliamentary Assembly of FB-H and was pub-lished in the Official Gazette of the Federation, No. 32/01, on July 24, 2001. The ap-plication of both laws in the entities was postponed for six months (the so-called period of adaptation and preparation for application), so that the Act began to be applied in RS on November 27, 2001, and in FB-H on February 1, 2002. The legisla-tion of Bosnia and Herzegovina did not envisage such delay and so it relates the date of application to the eighth day of publication of the Act. Freedom of Access to Information Acts in RS and FB-H have not been changed so far although there is a need to do so.

NO MORE NO LESS RIGHTS FOR JOURNALISTS

These laws (hereinafter, FoAIA when it is referred to all three acts) establish a general right of the public to access the information owned by public authori-ties/organs “to the greatest extent possible consistent with the public interest.” FoAIA thus establish a general rule of making all information public whereas

1 Freedom of Access to Information Act of Bosnia and Herzegovina (October 2000, Sara-jevo), Official Gazette of BiH, No. 28/00, Entered into force on 17 November 2000. 2 Law on modifications and ammendments of Freedom of Access to Information Act in BiH (December 2009, Sarajevo), Official Gazette No.102/09, Entered into force in December 2009. 3 Freedom of Access to Information Act of RS (May 2001, Banjaluka), Official Gazette of RS No. 20/01, Entered into force on 18 May 2001. 4 Freedom of Access to Information Act of FBiH (July 2001, Sarajevo), Official Gazette of FBiH, No. 32/01, Entered into force on 24 July 2001.

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articles 6, 7, 8 and 9 of the three acts stipulate that, on some occasions, informa-tion does not have to be disclosed.

The right to free access to information owned by public authorities is justifiably seen as a basis for the establishment of every democratic society. It implies a more efficient fight against corruption, as well as a healthier society, cleaner en-vironment, more respect for human rights, more respect of privacy, safer society, and a more efficient democracy. Therefore, this act and its application reflect responsibility and transparency of authorities and they are the biggest encour-agement for the public to be involved in decision making process of organs at all levels.

FoAIA enables access to information for every person, regardless of his or her citizenship, nationality, ethnicity, or place of residence. Beside private persons, legal persons, such as enterprises and institutions, can request the access to in-formation consistent with these acts. Journalists and media outlets do not have more or less rights compared with other requesters.

Therefore, FoAIA laws do not make it easier for journalists to receive information in everyday news gathering with regard to prescribed periods of time (15 days), but it does enable the access to information and insight into documents in cases of long-term investigative stories which do not have to be produced quickly.

Along with general rights, in the case of so called personal information, pri-vate persons also have the right to demand for this information to be changed. Namely, in line with FoAIA, every private person has the right to be assured that the information about this person gathered by public organs or owned by pub-lic organs is correct, timely and relevant, that is, that it is not false or forged. Every private person has the right to ask for false information to be corrected, and the authorities are obligated to do so or to quote the comment or remark of this person. Private persons have the same right on the basis of the Law on Protection of Private Data.5

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OPENNESS, DEMOCRACY AND CORRUPTION

The access to information owned by the government and all public organs has three main goals: it encourages openness of the authorities, it improves democ-racy, and it contributes to the fight against corruption. FoAIA primarily establish-es a greater openness and responsibility of the authorities in the decision-mak-ing process and it ensures that their activities are in line with public interest. As a

5 Law on Protection of Personal Data of BiH (December 2001, Sarajevo), Official Gazette of BiH No. 32/01, Entered into force on 28 December 2001.

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result, such access strengthens the public trust in ruling organs.

FoAIA advances democratic pro-cesses by promoting public par-ticipation in the public organ’s decision-making process. By pro-viding the public with access to in-formation owned by government, there are more possibilities for the public to evaluate and comment

on the activities and policies of public authorities. FoAIA is based on the fact that citizens cannot significantly participate in public processes and decisions if they do not know what is happening in these public organs and if they do not have the possibility to find this out and to have influence on it.

Freedom of access to information contributes to the fight against corruption and against the bad management of the authorities. If the government and authorities know that they may have to account for their activities, it can be expected for them to act in a more responsible way and respect the law. The full application of FoAIA includes the responsibility of the public authorities and participation of public in general.

The comparison of FoAIA in Bosnia and Herzegovina shows that these three acts are basically the same, although there are certain differences among them. When comparing FoAIA to similar laws around the world regulating freedom of access to information, it becomes obvious that these acts in B-H, both at state level and at entity levels, are mainly based on the highest international stan-dards.

FoAIA applies to information held by all public organs (legislative, judiciary, ex-ecutive and administrative) as well as to all legal persons owned or controlled by public organs such as public institutions, public enterprises, communal organi-zations, public schools, faculties, state agencies or institutes. It does not apply to private organizations and companies, nor does it refer to the commercial sector in general.

SECRET DOCUMENTS ARE NOT EXEMPTED

FoAIA provides the public with the right to access documents, records and a wide range of other types of information owned or controlled by public organs. What has to be taken into account is the fact that FoAIA, just as most similar laws in democratic countries, do not require the authorities to create new documents or

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information in a new form just to respond to the request of the access to informa-tion. FoAIA does not require public authorities to analyze published data, nor to respond to questions in a written format. Public authorities are simply required to ensure access to the existing documents or materials containing answers to asked questions or to requested information.

Under FoAIA, public authorities are obligated to provide the public with the ac-cess to documents, records and most other information on their request. Howev-er, public authorities are also obligated to publish the most important information and to provide the public with an opportunity to have an insight into it even with-out the request of the public; such documents include documents concerning the budget of the institution, regular activities and political decisions.

In line with international standards, FoAIA enables the access to information owned by public authorities “regardless of physical form, characteristics, when it was created, or how it is classified.” This way, what can be potentially disclosed are documents and information labeled and classified as “top secret,” “secret” or “confidential,” that is “internal” (names and labels of secrecy according to the Law on Protection of Secret Data, Article 19, No.54/05) and this can be done especially when prescribed exemptions cannot be applied.

In short, the right to access refers to all information regardless of their form (e.g. written documents, electronic information and data, audio or video records, etc.), source (whether they were created by public organs or someone else), date when they were created, or their classification.

THREE TYPES OF POSSIBLE EXEMPTIONS

The part of FoAIA prescribing possible exemptions is also based on internation-al standard, as it acknowledges the fact that in some cases information can be withheld on a legal basis. FoAIA allows public organs to apply these exemptions only in three cases; first, if it is expected that disclosing information can cause a significant damage to legitimate functions of the government (e.g. when it comes to national security, defense, public security, questions of monetary policy, prevention of crime, etc.); second, the exemptions are applied in order to protect commercial interests of a third party; and, third, to protect personal interests and privacy of a third party.

However, the information belonging to one of these three categories is not au-tomatically exempted from disclosure. On the contrary, before they reject the re-quest of access to information on the basis of exemptions established in FoAIA Ar-ticles 6 – 8, it is mandatory for public organs to consider whether the disclosure of information is justified by public interest. Article 9 of FoAIA prescribes the public

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interest test, which is mandatory for all public authorities before the final decision is made. Such approach is also based on democratic standards of most laws of this kind in the world. Compared with similar laws in the region of Western Balkans, only the laws of Serbia and Croatia prescribe the public interest test.

Public organs in Bosnia and Herzegovina cannot establish any other exemptions except those given in Articles 6-8 of FoAIA. Exemptions have to be established on the basis of examining every case and special circumstances related to the very request that have to be taken into account. Labeling an entire category of information as exemption from disclosure is forbidden.

Therefore, FoAIA explicitly derogates the provisions of other laws referring to classification of security of certain information and documents. The fact that some document is labeled as “secret” or “confidential” is not decisive when de-termining whether it is, according to FoAIA, exempted from disclosure. FoAIA also explicitly requires that “legislation passed subsequent to this Act that is not specifically aimed at amending this Act shall in no way restrict the rights and obliga-tions set out herein.”

All these characteristics are based on the highest democratic standards in the world.

OTHER LAWS ARE NOT IN ACCORDANCE WITH FOAIA

Based on a long-term experience of applying FoAIA, it is evident that the biggest problem is the lack of compliance with other laws that exclude or significantly reduce the right to free access to information. There are several such laws both in the entities and in the state of Bosnia and Herzegovina. These laws were ad-opted after FoAIA and limit the application and the benefits of the act.

This problem was mainly tackled by the Ombudspersons of the Federation of Bosnia and Herzegovina, who on several occasions (in 2004, 2005 and 2006) sub-mitted special recommendations to the Government of FB-H and to the Federal Ministry of Justice (the only organ in charge of the application of FoAIA). However, these recommendations and warnings were not taken seriously and executive and legislative authorities in this entity did not approach to coordinating the laws.

As lex specialis, FoAIA arranged the relation of this act with other laws. In order to understand this relation it is crucial to see the provision of point 3, Article 25 of FoAIA FB-H, which explicitly states that “legislation passed subsequent to this Act that is not specifically aimed at amending this Act shall in no way restrict the rights and obligations established herein.” There are similar solutions both in FoAIA of

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B-H,615 as well as in FoAIA of RS7

16 that has the same format as FoAIA of B-H differing only in the fact that verbs refer to singular and not plural.

However, in numerous laws passed additionally, the legislators at all three levels acted in a way that was completely opposite to the abovementioned position. This primarily refers to the Law on Protection of Secret Data of B-H,8

17 the Law on Intelligence and Security Agency of Bosnia and Herzegovina,9

18 the Law on Criminal Procedure of FB-H,10

19 the Law on Tax Administration of FB-H, and the Law on Tax Ad-ministration of FB-H,11

20 laws on labor and securities market (at entity levels), and cantonal laws on employment in FB-H. When deciding that some information is not to be published, public bodies based their decisions on the abovemen-tioned laws and not on FoAIA. These laws were identified through the actions of Ombudsperson of Federation of B-H, because public organs referred to them in cases of decisions on non-publishing information instead of referring to FoAIA.

THE LAW ON PROTECTION OF SECRET DATA EXCLUDES FOAIA

Several laws illustrate the lack of compliance the Law on Protection of Secret Data of B-H, the Law on Criminal Procedures of FB-H, and the Law on Tax Administration of FB-H, as well as the laws on labor.

Example one: The Law on Protection of Secret Data of B-H prescribes strict condi-tions for accessing secret data and determines that “access to secret data shall be possible only under the conditions as stipulated by this Law and other bylaws issued on the basis of this Law...”

This is how the Law on Protection of Secret Data of B-H completely excluded FoAIA and made it impossible to access any information labeled as “top secret,” “secret,” “very confidential” and “restricted” (levels of secrecy according to this

6 Article 26, point 4: “legislation passed subsequent to this Act that is not specifically aimed at amending this Act shall in no way restrict the rights and obligations estab-lished herein.” 7 Article 25, point 4: “legislation passed subsequent to this Act the purpose of which is not amending this Law, shall not restrict rights and obligations established by this law.”8 Law on Protection of Secret Data of BiH (July 2005, Sarajevo), Official Gazette of BiH, No. 54/05, entered into force in 2005. 9 Law on Intelligence and Security Agency of BiH (2004, Sarajevo), Official Gazette of BiH, No. 12/04, entered into force in 2004. 10 Law on Criminal Procedure of FBiH (August 2003, Sarajevo), Official Gazette of FBiH, No. 35/03, 37/03 and 56/03, entered into force on 1 August 2003. 11 Law on Tax Administration of FBiH (2002 and 2004, Sarajevo), Official Gazette of FBiH, No. 33/02 and 28/04, entered into force in 2004, http://www.pufbih.ba/hr/zakon-o-poreznoj-upravi (accessed 26 March 2012).

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law) which (parts of information) do not have to be classified in some of these categories. In this way, the basic principle of FoAIA is being neglected; that is, no request to access information is rejected automatically and every request is considered for every case individually and its content is taken into account.

The Law on Protection of Secret Data of B-H still has one provision based on Ar-ticle 9 of FoAIA (public interest test) prescribing that “classified character may not be specified for data if such classification is designated with the purpose of hiding the perpetration of a criminal offence, overriding or misuse of powers, aimed at hid-ing any illegal activity or hiding an administrative error.”

EXAMPLES OF LAWS WITHOUT COMPLIANCE

Example two: Article 70 of the Law on Labor of FB-H determines that “individual payments of salaries are not public” 12

21. Article 96 of the Law on Labor of Republika Srpska13

22 also contains this provision.

The Law on Labor in Institutions of B-H1423 does not have such provision. However,

this did not prevent members of the Parliament and delegates in the B-H Par-liament to repudiate the request of non-governmental organizations and the Center of Civic Initiatives to publish their salaries, quoting the Law on Labor in Institutions of B-H. This is how the Freedom of Access to Information Act was auto-matically out of force, although no one ever announced this officially. However, even if there had been such provision in the Law on Labor in Institutions of Bosnia and Herzegovina, it could not be justified considering this type of information is regarding salaries of high officials paid from the national budget.

Example three: Article 227 of the Law on Criminal Procedure of FB-H establishes the process of providing the data from criminal/penal charges:

1. Information contained in the criminal record may be revealed to the court, the prosecutors’ offices and bodies of restricted affairs in connection with criminal pro-ceedings conducted against a person who had been previously convicted, to compe-tent bodies in charge of the execution of criminal sanctions and competent bodies participating in the procedure of granting amnesty, pardon or deletion of sentence.

12 Labor Law of FBiH ( 2000, Sarajevo), Official Gazette of FBiH, No. 43/99 and 32/00, entered into force in 2000. 13 Labor Law of RS (2007, Banjaluka), Official Gazette of RS, No. 20/07, entered into force in 2007.14 Law on Labor in Institutions of BiH, Official Gazette of BiH, No. 26/04, 7/05, and 48/05, entered into force in 2005 .

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2. Information from the criminal record may, upon the presentation of a justifiable request, be revealed to governmental bodies if certain legal consequences of the conviction or security measures are still in force.

3. At their request, citizens may be given information on their criminal record if the information is necessary for exercising their rights.

4. No one has the right to demand that citizens present evidence on their being con-victed or not being convicted.

5. Provisions of Paragraphs 1 through 4 of this Article are special provisions of equal relevance for the Federation Law on Freedom of Access to Information.

Even though the Freedom of Access to Information Act of FB-H is lex specialis leg-islation attributed specialis to the Law on Criminal Procedures, which was passed later, in relation to FoAIA. In this way, the authorities devaluated their own Free-dom of Access to Information Act, limited the rights based on it and deceived the public.

As it can be seen in the quote from this law, the possibility of asking and receiv-ing the data from criminal and penal records is limited to certain state bodies (courts, prosecutors and the bodies of inner affairs in charge of the criminal-legal sanctions and other state organs, as well as the citizens themselves – “whether they were convicted or not”). Therefore, there is no possibility for a private per-son, including the damaged one, to ask and receive the data for a third party.

Example four: Article 3 of the Law on Tax Administration of FB-H1524 determines

what a tax secret is:

4 Tax secret

• every information or data on tax payer owned by public organs except:

• information and data given by a tax payer in written form stating that it is not considered a tax secret;

• information and data in the form which cannot be connected with an individu-al tax payer or which cannot identify him/her in any other way

• data on tax payment which is, according to the provisions of this Law, publicly published.

Therefore, tax secret covers all data and information on tax-payers except those that, tax-payers themselves do not consider tax secret “in written form.

15 The Law was modified and amended in 2004, 2009 and 2010. Official Gazette of FBiH No. 28/04, 57/09 and 40/10, http://www.pufbih.ba/hr/zakon-o-poreznojupravi (ac-cessed 26 March 2012).

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The written response of the Federal Tax Administration addressed to the Ombud-spersons of FB-H (subject OI-17/05) emphasizes that “Article 2 of the Law on Tax Administration prescribes that in case the provisions of the Law on Tax Administra-tion of FB-H, regulating, among other areas, the rights and obligations of Federal ad-ministration and tax payers, are regulated differently in other Federal laws, then the provisions of this Law will have the priority over other provisions in given areas.” Also: “Prescribing Article 2 of the Law on Tax Administration of FB-H, legislators attributed lex specialis to the Law and hence indicated that the field of taxes is specific.”

Article 2 of the Law on Tax Administration in FB-H states that:

The provisions of this Law will have the priority over other differently formed provi-sions of laws in the Federation if the following areas are differently regulated: the organization and management of Tax Administration, the cooperation between Tax Administration and other governmental organs, rights and obligations of Tax Ad-ministration and tax payers, identification and registration of tax payers, bringing tax charges and paying taxes, incisions and tax collections, compulsory collections of taxes, supervision by inspection, account and commissions deduction and several tax rebates, deadlines expired for incisions, collections and tax rebates, complaints to tax orders, administrative punishments for tax violations, sublegal acts and tax opinions.

Even though the Law on Tax Administration is labeled as specialis in relation to other laws, this cannot be interpreted in the way in which the Tax Administra-tion of FB-H does. The reason for this is that specialis refers to precise areas not including the right to free access to information.

FOAIA EXCLUDES AUTOMATISM

FoAIA established the coordination between its main goal on one hand – that the information owned by the au-thorities is public and that publish-ing is the rule with exemptions pre-scribed only in this act and, on the other hand, it requires that the field of free access to information owned by public authorities shall not be limited by any other law.

The stipulated exemptions in FoAIA (articles 6, 7 and 8 of all three acts) cannot be automatically applied, but only applied along with certain

In addition, public organs cannot deprive the public of documents labeled as “top secret,” “secret,” “confidential” and “restricted” ba-sed on the principle of automatism. Although such label can be rele-vant when deciding whether one of the three stipulated exemptions to FoAIA can be applied, it is not suf-ficient per se to repudiate the access to information based on this act.

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prescribed conditions – solving case by case (and not generally), evaluating the content of requested information (and not a type of information) and a manda-tory public interest test (Article 9 of the Law), without which there are no exemp-tions, etc.

However, on the other hand, the nature of the provision of Article 26 point 4 of FoAIA B-H, as well as Article 25 point 3 of FoAIA of FB-H and Article 25 point 4 of FoAIA of RS (stating that other laws will not “restrict the rights and obligations established”) is binding; this obligates legislators to not limit the rights established by this act. A good example of such action is the Law on the Protection of Personal Data in B-H where Article 28 states that “provisions of this law will be taken into ac-count when applying the Law on Free Access to Information in Bosnia and Herzegov-ina.” Therefore, this law did not automatically exclude access to personal informa-tion, but recommended that its provisions are “taken into account.”

However, this doesn’t happen in practice and a great number of laws adopted in the past few years reduce the rights established by FoAIA. As it can be seen in some of the examples mentioned, certain laws automatically exclude some types of information in advance (information for which it is not justified to be treated as secret and confidential, information on salaries of public officials and members of the parliament, providing the data from criminal/penal records, that is, the information on tax payers owned by tax organs, etc.).

It is true that transitional and final provisions of FoAIA generally exclude the laws on court proceedings, including the Law on Criminal Procedure, but this is done by emphasizing that the Freedom of Access to Information Act of B-H “shall not diminish a person’s rights and obligations related to access to information as regulated under the laws on judicial procedure, including rules of evidence.”

Just like similar acts in the world, FoAIA stipulates that deciding not to publish the information is justified only if this decision is based on solving “case by case” and on the content of requested information, and not of the type of informa-tion, as well as if the test of public interest is conducted. The public interest test is based on the principle of publishing requested information – regardless of established exemptions – “if it is justified by public interest.”

In addition, public organs cannot deprive the public of documents labeled as “top secret,” “secret,” “confidential” and “restricted” based on the principle of au-tomatism. Although such label can be relevant when deciding whether one of the three stipulated exemptions to FoAIA can be applied, it is not sufficient per se to repudiate the access to information based on this act.

Dealing with every individual request and evaluating the content and not just the type of information are two key principles of modern legislations on freedom of access to information and are a generally accepted international standard.

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FoAIA is based on this principle as well but as it can be seen in these examples, other laws listed are not. It is a paradox that both this law (FoAIA) as well as some other laws are claimed to be lex specialis.

On several occasions, recommendations for amending FoAIA were given by the Ombudspersons of the Federation of Bosnia and Herzegovina and non-govern-mental organizations such as Transparency International, the Association of “B-H novinari” (“B-H journalists”) and others.

SOME SHORTCOMINGS OF FOAIA AND EXPERIENCES IN ITS APPLICATION

There are also certain differences among the three acts of this kind in Bosnia and Herzegovina. The two most significant acts refer to the lack of compliance regarding the form of a written response of public organs (letter-notice-cogni-zance) and regarding sanctions. The biggest deficiency is the fact that two out of the three acts (Act of B-H and Act of FB-H) do not contain precise enough provi-sions that deal with appeals in the case when request is repudiated, and that the third law (in RS) does not stipulate an appeal at all.

Among the three acts, only FoAIA in the Federation prescribed the obligation of public organs to provide a cognizance and the right to appeal their decision from the very start. However, this act did not determine to whom the appeal should be addressed; in its transitional and final provisions (Article 25, point 1) the Act quoted the Law on Administrative Procedure as one of the laws “applied to all public organs in the sense of this law…”16

25 The application of this Law showed a true variety and a lack of resourcefulness of public organs.

From the very first year of its application, FoAIA of Bosnia and Herzegovina made it obligatory for public organs to notify requesters of their right to access the information or of the exemption of publishing. As a notice or official letter is not a managing document, it is not binding and does not provide a possibility of appeal in cases when requesters are denied access to information. This part of the Law was amended in 200617

26 and since then, public organs at the level of B-H have been obligated to provide acknowledgements.

FoAIA in Republika Srpska stipulates that the response should be in the form of a notice and an official letter and it has not been amended thus far. The Law doesn’t stipulate a right to appeal, and instead it gives the Ombudsperson of RS

16 Law on Administrative Procedure (Sarajevo, 25 June 2002), Official Gazette of B-H No. 29/02, entered into force in 2002. 17 Law on modifications and ammendments of Freedom of Access to Information Act in B-H (2006, Sarajevo), Official Gazette No. 45/06, entered into force in 2006.

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(institution has not been operating since 31 March 2010) the possibility to do so.

Considering the fact that all three acts enable requesters for access to informa-tion to address the institution of the Ombudsperson at a suitable level (the Fed-eration of B-H, Republika Srpska and Bosnia and Herzegovina), the cancellation of the institution in both entities could cause new difficulties and misunder-standings because of the non-compliance of the three acts. By the end of 2009, when the entity institutions of Ombudspersons were operating, the Ombud-sperson of the Federation of B-H got the highest number of appeals, averaging between 130 and 160 appeals per year, the majority of which (around 92-96%) were solved in a positive way, granting the requesters access to information and a suitable cognizance enabling them to make a regular appeal. Nowadays, re-questers can only address the Ombudsperson of Bosnia and Herzegovina, with offices in the big cities of the country.

ONLY STATE LAW HAS SANCTIONS

As for sanctions, none of the three laws stipulate direct sanctions, but they do not exclude them either. On the contrary, they stipulate the possibility of sanc-tioning based on other laws (“in he case of violation of this law, sanctions estab-lished by criminal code, laws on violations and laws in the field of management ought to be applied...”).

FoAIA of Bosnia and Herzegovina181 is the only law that modified this part; since

then, this is the only act that directly stipulates fines for public organs and re-sponsible persons (for public organs, the fines vary from 1,000 to 15,000KM, and for individuals responsible for acting without compliance with FoAIA – from 200 to 5,000).

Although FoAIA stipulates the possibility of court procedures in cases when the requested access to information is repudiated, there is no relevant court prac-tice. This is both due to a small number of charges and to the inefficiency of courts that do not take charge in administrative disputes as an emergency pro-cedure.19

2

Even though FoAIA does not make it binding for state and entity authorities to

18 Law on modifications and ammendments of Freedom of Access to Information Act in B-H (December 2009, Sarajevo), Official Gazette No.102/09, entered into force in December 2009. 19 The director of Center for Investigative Reporting (CIN) states that CIN pressed charges against one public enterprise before Sarajevo Cantonal Court, but that more than two years after these charges there were no invitation to the Court at all. The director of CIN also stated that the inefficiency of the Court in this process was discouraging for making such charges i n the future (Source: Mediacenter Sarajevo, 2010).

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publish the list or the register of all public organs obligated to act in accordance with this act, the increasing practice in democratic countries is establishing such register. In the region, Slovenia has such register. It is precisely the non-existence of register in Bosnia and Herzegovina that appears as an important omission in the application of FoAIA because some public organs sometimes refuse to apply FoAIA. These are most often legal persons formed by executive and legislative or-gans such as schools, faculties or universities, institutions and institutes, that is, public enterprises partly owned by public organs. According to the records of the Ombudsperson of FB-H, by 2009, only 172 public organs submitted guidelines to this institutions, as well as indexes/registers of information and names of employ-ees which are mainly related to executive, legislative and judicial authorities. It is assumed that, in the Federation of B-H, schools, faculties/universities, institutions and institutes, that is, public enterprises did not fulfill this obligation.

Beside the abovementioned deficiencies in the application of FoAIA, the under-development of communication capacities of public institutions or slow proce-dures when requesting information are a limiting factor when it comes to access to information.

Another identified deficiency in the implementation of FoAIA is the fact that there is no system of monitoring its application. Although FoAIA prescribes that all public institutions and enterprises are obligated to submit the information on the number of received requests related to FoAIA and on the manner of solv-ing them to the Ombudsperson, this system has not become fully active so far and only a small number of public organs have met this obligation.

The analysis of three-month statistical data of public organs shows that some public organs give names and other details on requesters for access to informa-tion in their quarterly reports, practice that is not in accordance with the act. There is no reason to give this type of data in quarterly reports because this is not a legal obligation and it can also discourage citizens, as there is no reason to keep the records revealing whether they requested access to certain informa-tion.

POLITICAL BOYCOTT OF THE MEDIA CONTRARY TO LAWS

The biggest problem in the application of FoAIA is the practice of imposing political will in order to boycott of media (such as “instructions” of the Prime Minister of Republika Srpska20

3 which prohibit governmental institutions and officials to have any communication with Federal Television as well as with some 20 Halilović, Mehmed, Dodikove instrukcije: Zaustavite FTV (Dodik’s instructions: Stop FTV), Mediacentar Online, 29 March 2010, http://www.media.ba/mcsonline/bs/tekst/dodikove-instrukcije-zaustavite-ftv (accessed 14 September 2011).

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media outlets in RS). Depriving journalists of information is in fact a punishment for viewers, listeners and readers, as well as the public in general. Working bodies of the B-H Parliament have similar policies, as they decided to deny non-governmental organizations access to information regarding the salaries of members of the parliament; just as in the case of every other denial of access to information of public interest, the B-H Parliament motivated their action by quoting other laws.

The experience of three institutions of Ombudspersons and the results of numerous research studies suggest that, in spite of all shortfalls and obsta-cles, FoAIA still contributed to raising awareness of the importance of right to access the information and generally improved the transparency of the public institutions’ work in Bosnia and Herzegovina. This evaluation is not the same for all environments and for all public organs. Mostly, the best re-sults in the application of FoAIA were achieved in developed environments although, just as it is the case at other levels, a constant pressure of the pub-lic and non-governmental organizations was needed in order to ensure the full transparency of authorities and to enable access to information based on FoAIA.

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Chapter 5

DEFAMATION AND MASS MEDIA

L AW ON PROTEC TION AGAINST DEFAMATION

Mehmed Halilović and Mladen Srdić

Seven years ago, in 2004, Bosnia and Herzegovina came in 21st place in the world regarding media freedom. The list of the countries and their degree of media freedom was made by French organization ‘Reporters sans frontiers’14. Media laws adopted by that time greatly contributed to this position. This primarily refers to the laws on protection against defamation (two laws at entity levels and a similar law at the level of Brčko District)2

5 and Freedom of Access to Informa-tion Acts (three acts at three levels)3

6. Although these laws are valid even today, more recent evaluations of media freedoms were rather critical. This negative evaluation is partly due to an increasingly bad political and economic situation. This particularly refers to the period starting in 2006, as inadequate application of most media laws began at that time (especially the application of the laws on public broadcasters4

7 and of the Communication Law58).

Along with the laws on free access to information, the laws on protection against defamation have remained almost the only silver lining in the spheres of media and politics, both when it comes to their content, their positive messages and their influence on judicial and journalistic practice. Also, these laws on protection 1 See: Freedom Press Index 2004, Reporters Without Borders, http://en.rsf.org/press-freedom-index-2004,550.html (accessed 6 December 2011).2 Law on Protection against Defamation of RS (Banja Luka, July 2001), Official Gazette of RS No. 28/94, entered into force on 1 August 2001; Law on Protection against Defama-tion of FBiH (Sarajevo, 2003), Official Gazette of FBiH No. 19/03, entered into force in 2003; Law on Protection against Defamation of Brčko District (Brčko, 2003), Official Gazette of Brčko District of BiH No. 14/03, entered into force in 2003, http://www.skup-stinabd.ba/zakoni/70/h/Zakon%20o%20zastiti%20od%20klevete-Sl.glasnik%20Brcko%20DC,br.14-03.pdf (accessed 17 January 2012).3 Freedom of Access to Information Act of B-H (Sarajevo, October 2000), Official Gazette of B-H No. 28/00, entered into force on 17 November 2000; Freedom of Access to Informa-tion Act of FBiH (Sarajevo, July 2001), Official Gazette of FBiH No. 32/01, entered into force on 24 July 2001; Freedom of Access to Information Act of RS (Banja Luka, May 2001), Official Gazette of RS No. 20/01, entered into force on 18 May 2001.4 Law on Public Radio-Television Service of B-H (Sarajevo, December 2005), Official Gazette of B-H No. 92/05, entered into force on 28 December 2005; Law on Public Radio-Televi-sion Service of FBiH (Sarajevo, July 2008), Official Gazette of FBiH No. 48/08, entered into force on 6 August 2008; Law on Public Radio-Television Service of RS (Banja Luka, May 2006), Official Gazette of RS No. 49/06, entered into force on 11 May 2006. 5 Communication Law (Sarajevo, 2 September 2003), Official Gazette of B-H No. 31/03, entered into force on 21 October 2003, Article 4, at: http://www.rak.ba/bih/index.php?uid=1269443180 (accessed 21 March 2012).

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against defamation were ‘revolutionary’ as they were the first national laws in Europe and in the world which both normatively and practically decriminalized defamation and insult.

DECRIMINALIZATION OF DEFAMATION AND INSULT IN B-H

Until 1999, defamation and insult were criminal acts in Bosnia and Herzegovina, just as it was the case with the rest of Europe and the world6

9. For several years after the war, there were tens of criminal proceedings involving journalists and editors, and the Office of High Representative (OHR) made a decision on freedom of information and on abolishing penalties for defamation and insult on July 30th 1999.710 The deci-sion ordered both entities “to adopt necessary laws so as to determine legal rem-edies for defamation, insult, and slander in civil lawsuits” in line with the European Convention on Protection of Human Rights and Fundamental Freedoms.

A group of international and local experts prepared the proposal for the new law and then they provided a draft of the law to the entity parliaments by OHR and the Organization for Security and Co-operation in Europe (OSCE) in B-H in order for this law to be adopted. Soon after, the National Assembly of Republika Srpska adopted the Law on Protection against Defamation. However, the Parliament of the Federation of B-H was postponing this process for months. Finally, on November 1st 2002, at the demand of the public and media community, the OHR decided to pass the Law on Protection against Defamation in the Federation of B-H.811

Therefore, restrictions on the right to freedom of expression given in Article 10, paragraph 2 of the European Convention9

12 referring to the protection of reputa-tion or rights of others applied in Bosnia and Herzegovina are mainly regulated by the following laws:

• Law on Protection against Defamation of the Federation of B-H published in Official Gazette of the Federation of B-H, Number: 59/02, entered into force

6 More than half states in the US do not have criminal laws concerning defamation and they include defamation in civil law. Also, the Supreme Court of the USA oborio specific criminal judgments in cases Garrison v. Louisiana, 379 US 64 (1964), and Ashton v. Ken-tucky, 384 US 195 (1966).7 See: Decision on restructuring Public Broadcasting System in Bosnia and Herzegovina and on the freedom of information and on abolishing penalties for defamation and insult, http://www.ohr.int/decisions/mediadec/default.asp?content_id=31174 (accessed 6 December 2011). 8 See: Decision on passing the Law on Protection against Defamation of Federation of Bosnia and Herzegovina, http://www.ohr.int/decisions/mo-hncantdec/default.asp?content_id=28424 (accesed 6 December 2011).9 Ibid.

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one day after it was published.

• Law on Protection against Defamation of Republika Srpska, published in Of-ficial Gazette of Republika Srpska, Number: 37/01, entered into force eight days after it was published.

• Law on Protection against Defamation of Brčko District of Bosnia and Herze-govina, published in Official Gazette of Brčko District of B-H, No. 14/03, en-tered into force in 2003.

• Law on Obligatory Relations (Official Gazette of SFRJ, Number: 29/78, 39/85 and 57/89, Official Gazette of RB-H, Number: 2/92, 13/93 and 13/94) and Of-ficial Gazette of Republika Srpska, Number: 17/93 and 3/96).

REASONS FOR PASSING THE LAW ON PROTECTION AGAINST DEFAMATION

The reform of the judicial branch in Bosnia and Herzegovina came across the need to pass a new law regulating the question of liability for defamation. The main idea for passing new laws was the decriminalization of defamation that was supposed to contribute to a greater freedom of expression of the media and, consequently, to the overall democratization of the society.

When passing the laws, the tendency was to adopt recent European standards in this field, primarily found in Article 10 of the European Convention of Human Rights and Fundamental Freedoms10

13 and in the standards of European Court of Human Rights in Strasbourg. In the end, it was decided that liability for defama-tion was to be civil and that these laws in fact should regulate the issue of com-pensation for damage to one’s reputation caused by a defamatory expression.

Generally, criminal laws exist in order to punish objectively socially dangerous acts which harm the society, such as murder, abuse, theft, deception, caus-ing, and encouraging violence and hatred. The main means and measure of criminal law is penalty, the application of which leads to violation and limita-tion of freedom and rights of the defendant. Even the very threat of penalty represents a limitation of freedom. Related to this, penalties and repressions of criminal law are justified only when all other remedies are exhausted. The legitimacy of treating a certain behavior as a felony requires complaints to be verified first, especially to make sure that the repression of criminal law is the ultimate means of protection (ultima ratio). Treating something as a felony is legitimate and justified only in such cases.

Therefore, expressing/publishing something bad about someone else, even if it is incorrect, simply does not belong to the category of social danger, nor does it

10 Ibid.

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provide legitimacy for the repression of civil law. Journalists and other citizens who publicly express their opinion in one democratic society should not be charged as criminals because of their opinion.

Moreover, one of the reasons for decriminalizing insult and defamation is the fact that judgment for these acts would remain in the records of punishments and thus the charged person will have a criminal record. This fact per se is stig-matizing for this person and can have negative consequences for the person when it comes to employment, even if the matter is a minor felony. The stand-point of the European Court of Human Rights is that passing even a very mild sentence means that one person has a criminal record and this type of punish-emnt can have a chilling effect for the media.

Although the decriminalization of defamation is the tendency of international law and although it is recommended by the Council of Europe, for now there are no international legally binding acts which prescribe such obligation. In that sense, the Resolution of Council of Europe Parliamentary Assembly - Towards decriminalization of defamation Resolution 1577 (2007) - explicitly says that the states should “define the concept of defamation more precisely in their legislation so as to avoid an arbitrary application of the law.”11

14

In many member states of the Council of Europe, as well as in our neighboring countries, the field of defamation is still regulated within the criminal law.12

15 In some other states, where insults and defamations are exclusively the sub-ject of civil proceedings, judgments are related to very high compensations

for the damage which is, accord-ing to experts, a serious threat to freedom of media. An example of such a state is the United Kingdom, where fines reach even hundreds of thousands of pounds, the biggest amount among all members of the Council of Europe. The study was conducted by the Center for Social and Legal Studies at the Univer-sity of Oxford in 2008 showed that compensations for damage and to-tal court expenses in England were

11 The Council of Europe, Resolution 1577 (2007),Towards decriminalization of defamation (4 October 2007), http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/ta07/eres1577.htm (accessed 18 May 2011).12 At the end of June 2011, Montenegro passed the Law on Amendments of Criminal Law which decriminalized defamation.

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In addition, public organs cannot deprive the public of documents labeled as “top secret,” “secret,” “confidential” and “restricted” ba-sed on the principle of automatism. Although such label can be rele-vant when deciding whether one of the three stipulated exemptions to FoAIA can be applied, it is not suf-ficient per se to repudiate the access to information based on this act.

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140 times higher than the average in Europe.1316

Therefore, according to international standards, the prosecution for the act of defamation per se does not represent a violation of Article 10 of the Convention. This is because possible violations of this Article, as well as of other provisions of the Convention, are determined for every individual case before the European Court. However, the European Court in its decisions still holds that among differ-ent interferences into freedom of expression, judgments and penalties are prob-ably the most dangerous for very freedom of expression. Even in cases where penalties were in fact relatively small fines, the Court was against them because they can represent an implicit censorship. In case of The Fatullayev v.Azerbaijan (40984/07) (2010) the European Court concluded:

States must regulate the right to freedom of expression having in mind the reigth to the protection of reputation of an individual in the way which will not prevent media to carry out their duties and warn the public of e.g. public officials misusing their positions. Investigative journalists are liable to be inhibited from reporting on matters of general interest if they run the risk, as one of the standard sanctions imposable for unjustified attacks on the reputation of private individuals, of be-ing sentenced to imprisonment. A fear of such a sanction inevitably has a chilling effect on the exercise of journalistic freedom of expression (see Mahmudov and Agazade, cited above, § 49).

13 University of Oxford, A Comparative Study of Costs in Defamation Proceedings Across Europe, By Programme in Comparative Media Law and Policy Centre for Socio-Legal Studies, University of Oxford, December 2008, http://pcmp.socleg.ox.ac.uk/sites/pcmp.socleg.ox.ac.uk/files/defamationreport.pdf (accessed 13 May 2012).

Until today, nine European states have completely decriminalized de-famation and insult: Ireland, Great Britain, Bosnia and Herzegovina, Romania (insult decriminalized) Estonia, Georgia, Ukraine, Cypres and Moldova. In the world, some of the federal states of the United States of America have done so, as well as: Ghana, Sri Lanka, the Maldives, New Zealand and Mexico. Also, most member states of the European Union stopped applying the provisions of criminal laws for acts of insult and defamation long time ago. Harsh imprisonment sentences for defamation are stipulated by the laws of Moldova (seven years), Slovakia (five years) and Turkey (four years). The criminal law of the Kingdom of Norway stipulates the imprisonment for the protection of royal family up to five years. Also, in Poland, it is stipulated that the imprisonment should take up to ten years for a public insult of Polish nation, the Republic of Poland and its political system and the highest state organs.

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This is why the regulation of liability for defamation in the field of civil law can be considered a big step forward in reaching the highest international standards in the domain of freedom of expression.

THE START OF THE APPLICATION OF LAWS ON PROTECTIONAGAINST DEFAMATION IN B-H

Even though the number of lawsuits against journalists and media was expect-ed to become lower after the three laws were adopted, this did not happen. The number of lawsuits actually increased rapidly in the first few years. In only two years, almost 300 charges were made before cantonal and county courts in both entities, three times more than two years before. If we compare this number to the total of media outlets, both electronic and print, it turns out that every me-dia was sued at least once, as well as one in ten journalists.14

1

According to the same source, most charges were pressed against daily newspa-per Dnevni avaz and other editions of the same publisher, then against newspa-pers Slobodna Bosna, Dani and Oslobođenje. Most lawsuits referred to politicians and state officials at all levels of government and then followed lawsuits against former and current journalists, that is, publishers. Individually, most lawsuits (several tens of them every year) were started by publisher and owner of Dnevni avaz and these lawsuits were made against editors and publishers of rival-news-papers. The second place belongs to the owner and publisher of Oslobođenje. The biggest number of charges was pressed by these newspapers against each other, a practice specific to Bosnia and Herzegovina and very unusual for coun-tries in the region.

In the first two years of the application of these laws, the amount of compensa-tion found in statements of claim was generally very high (varying from 20.000 to 200.000 KM), and some of them even came up to millions. Later on, these amounts were significantly smaller. What influenced these lower ‘appetites’ of the complaints was the court practice (judgments related to compensation were mainly limited to the amounts between one and five thousand KM, or rare-ly between ten or fifteen and twenty thousand KM) and the costs of the court (court fees are proportional to the requested amount of compensation).

Even though these laws were passed a relatively long time ago, their application in practice only began in 2004. The primary reason for this situation is the

14 Halilović, Mehmed, Kako se u B-H primjenjuje novi zakon o zaštiti od klevete: novinare tuže političari, ali i – novinari! (How the new Law on Protection against Defamation is applied in B-H: journalists are sued by politicians but also by – journalists!’). Media On-line, 24 August 2004. http://www.mediaonline.ba/ba/pdf.asp?ID=324&n=KAKO%20SE%20U%20BIH (accessed 6 December 2011).

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fact that judges and other participants in proceedings do not have enough experience in this field. In a way, courts avoided making decisions and took their time to approach cases of this kind, or better, they were not processed at all until the passing of new entity Laws on Civil Lawsuit Procedure. Namely, these procedural laws have significantly speeded up the lawsuit procedures and limited the possibility of postponing hearings and other ways of stalling the procedure.

Therefore, the first sentences in cantonal courts in the Federation regarding the charges for defamation were passed at the beginning of 2004. In the initial text of the federal law, the cantonal courts were designated as the courts of first instance for the cases of compensations for defamation, if this occurred in the media. As there were not many cases where disputable expression was not pub-lished in the media, the court of second instance was the Supreme Court of the Federation of B-H and, thanks to this, the Supreme Court established its practice.

The situation is different in Republika Srpska, where, from the very beginning of application of the Law, main courts were the courts of first instance. After the federal Law on Protection against Defamation was amended, the authority of first instance was logically transferred to municipal courts in the Federation.

Due to the lack of local court practice, it was necessary to apply international standards for this field directly, and especially the standards contained in the European Convention of Human Rights and Fundamental Freedoms, as well as in judgments of European Court of Human Rights in Strasbourg. However, when it comes to the protected element in Article 10, paragraph 2 of the Convention, reputation or rights of others, there is no such jurisprudence of the European Court in Strasbourg as the practice of the European Court is far more extensive when other protected objects appear as subjects of disputable expression, such as the interest of national security and preventing riots or crimes.

In the beginning, courts approached these procedures with a significant extent of fear, suspicion and misunderstanding. On the other hand, the expectations of journalists were too high (less lawsuits and minimum compensation). Public fig-ures also had great expectations, but for a completely opposite reason, because they used court procedures to protect their own reputation, dignity and privacy (maximum compensation).

This phase remained in the past and, generally, court practice in the past ten years has brought a lot more positive than negative experiences; there are a lot less lawsuits (last year and this year there were less than one hundred), requests for compensation are a lot more moderate, and the number of judgments for defamation is not higher than 30% compared to the overall number of charges.

Therefore, it can be concluded that courts mainly rejected unreasonable

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requests of public figures who ‘suffered defamation’ and that, on the other hand, journalists and media have become more professional. Some of them have done so under the pressure of court judgments and adjudged compensations for damage. It can be noticed that most media (including televisions and newspapers which had not been doing so) now normally publish corrections and apologies. The reason for this is very simple, because both laws on protection against defamation emphasize that corrections and apologies, inter alia, represent the elements based on which it is assessed whether there was a good faith and professionalism of journalists and media.

Journalists themselves indirectly contributed to the fact that the number of lawsuits has become lower. In short, they realized that unprofessional behavior is not worth it. This does not contribute to the reputation of media outlet, nor does it contribute to their financial situation even if the adjudged compensations are not too high.

IMPORTANT PRINCIPLES OF EUROPEAN COURT IN THE LAWS OF BOSNIA AND HERZEGOVINA

Practices and standards established by the European Court of Human Rights had a crucial influence on media laws in Bosnia and Herzegovina and especially on laws on protection against defamation. The practice of the European Court clarified the following norms that are important when dealing with concepts of defamation and insult:

• Debate on serious matters of public interest, particularly if found within the context of political debates enjoys the highest level of protection of Euro-pean Court;

• The European Court provides a special protection of the right to freedom of expression to media and journalists due to their social role as ‘public watch-dogs’ in a democratic society and punishing them is allowed “only if it is justified by particularly important reasons;”

• The European Court established the norm according to which the bound-aries of criticism are much broader when it comes to politicians or public officials, because they consciously expose themselves to public supervision of both journalists and the entire public thus they must express a greater level of tolerance;

• The European Court also established the standard according to which the government (authorities) must put up with a greater level of criticism as its ‘dominant position’ orders avoiding the reach for penalties, especially if there are other ways of responding to unjustified attacks and criticism;

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• The European Court makes a clear distinction between facts and opinions (val-ue judgments), because facts can be verified whereas value judgments cannot.

BASIC CHARACTERISTICS OF LAWS IN B-H

Basic characteristics of three laws on protection against defamation can come down to several important elements:

• Criminal liability for defamation in court procedures was abolished (there is no imprisonment and there are no fines);

• Civil liability in litigatory proceedings was established and there is a pos-sibility of compensation in cash;

• Protection of national symbols and state officials was abolished;

• Balance between the right to freedom of expression and the protection of reputation and dignity of a person was established;

• Right to freedom of thought is protected;

• Professional acts of journalists are encouraged;

• Full protection of journalistic sources is ensured;

• Public authorities are not allowed to sue media outlets and journalists;

• Balance between damage suffered and adjudged compensation was estab-lished;

• Injured person is obligated to take ‘all necessary measures to diminish the damage… and particularly to make a request for publishing a correction’;

• Solving the dispute between plaintiff and defendant by mediation is strong-ly encouraged;

• Procedure related to defamation ‘in mass media’ is considered urgent (this is stipulated only in the Law on Protection against Defamation in the Federa-tion of B-H whereas the Law of RS does not have such provision).

The key principles of encouraging the right to freedom of expression in both laws are defined in Articles 1 and 2 of the Law of RS and Articles 2 and 3 of the Law of FB-H and Law of BD. The second (b) paragraph (of Article 1 of the Law of RS, Article 2 of the Law of FB-H and the Law of BD)15

2, emphasizes that “the right to freedom of expression protects both the contents of an expression as well as the manner in which it is made, and is not only applicable to expressions that

15 Article 1 of the Law of RS, that is, Article 2 of the Law of FB-H and the Law of BD.

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are received as favorable or inoffensive but also to those that might enbitter163 or

disturb. “174 This principle was based on several judgments of the European Court

(judgments in the case of Handyside v. UK, in 1991, The Observer and Guardian v. UK, in 1992, Prager and Oberschlick v. Austria, in 199518

5), where it was additionally highlighted that this was ‘necessary due to pluralism, tolerance and generosity, as democratic society cannot exist without them’.

The abovementioned article of the three laws in B-H states that “the law is inter-preted in such manner that the application of its provisions largely ensures the principle of freedom of expression.”19

6

As it can be seen, new laws encourage free press and freedom of expression, and even expressions that can “offend, shock or disturb.” But this is only one side of the story. The other side includes definitions of liability of media and journalists. Journalists will be liable and they will bear consequences for defamation if they “intentionally or carelessly express or disseminate false facts”20

7, that is, if they “cause damage to the reputation of legal or natural person by stating or dis-seminating something false.”21

8 Therefore, journalists and the press are requested to act reasonably, in line with professional code, and without any bad intention.

However, journalists can also defend themselves when they publish false infor-mation containing defamation if they can prove they acted in good faith and “in line with the highest professional standards.” What all judgments of this kind had in common was that courts quoted the Press Code of journalists of B-H and the Code of Communications Regulatory Agency on Broadcasting Radio and Television Programs22

9, basing their judgment of the journalists’ professionalism and good faith on these two codes.

When dealing with ‘the transfer’ of defamation from criminal to legal proceedings in B-H, new laws ‘left out’ previous criminal acts in this domain such as “harming the reputation of the state (B-H and both entities), its flag, emblem and anthem, constituent peoples…” Before this, it was the state prosecutor who pressed charges as his/her official duty.  New laws on protection against defamation

16 The Law of RS states “ to shock”.17 Law on Protection against Defamation of FB-H (Sarajevo, 2003), Official Gazette of FBiH No.19/03, entered into force in 2003. 18 See more at: http://www.echr.coe.int/ECHR/homepage_en (accessed 8 May 2012).19 Supra note 8, Article 3. 20 Supra note 8, Article 6, paragraph 3. 21 Law on Protection against Defamation of RS (Banja Luka, July 2001), Official Gazette of Republika Srpska No. 28/94, entered into force on 1 August 2001, Article 5, paragraph 1.22 Code on Broadcasting Radio and Television Programs, Communications Regulatory Agency (Sarajevo, January 2008), Official Gazette of B-H No. 20/08, entered into force on 11 March 2008.

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also left out insult, which can still be the subject of a procedure before court although not based on these laws, but on the Law on Obligatory Relations.

LINGUISTIC AND TERMINOLOGICAL DIFFERENCES AMONG LAWS

The aforementioned three laws on protection against defamation in Bosnia and Herzegovina defined important elements of defamation in an identical way, al-though they formed it differently. As the Law on Protection against Defamation of Brčko District took over the formulations from two entity laws, it will not be individually mentioned further on.

In order for defamation to occur, the following conditions must be fulfilled:

• Existence/publishing false information,

• Identifying the injured person,

• Damage to legal or natural person,

• Dissemination to third persons and

• Intention or carelessness.

As it was pointed out, there are no essential differences between the three laws mentioned, except for linguistic and terminological differences. These differenc-es can be seen in the way in which the first important element of defamation is defined – existence/publishing false information.

While the Law on Protection against Defamation of FB-H speaks about “false facts,” 23

10 the Law of RS introduces the concept of “expressing something false.” 24 11

Although the latter definition is not the best one since it opens the possibility of various interpretations, it is certainly more acceptable than the former, which contains conceptual contradiction (contradictio in adiecto).

On the other hand, the Law on Protection against Defamation of FB-H does not contain a definition of defamation as an individual concept, even though it mainly mentions all concepts found in the Law of FB-H.

As discussed in detail below, the laws differ in their definition of who can be liable as an author, publisher, or editor. The Law of FB-H states that “every per-son … who makes or disseminates an expression” can be held liable, whereas the Law of RS limits liability to ”every person in business.” After many debates in the Press Council, which included journalists, judges, media experts and others, 23 Supra note 17, Article 6.24 Supra note 21, Article 5, paragraph 1.

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it was suggested that the concepts of journalist and author should be defined separately. According to this suggestion, “a journalist is every person who states their own or disseminates other’s information,” while “an author is every natural or legal entity who provided information.”

Both laws state that, before commencing proceedings against a journalist or media entity, the injured person must submit a request for publishing a retrac-tion and the Press Council and BH Journalists also suggested that the injured person is obligated to make a complaint to the Press Council (in case defamation occurred in the press) or to the Communications Regulatory Agency (the CRA) (in the case of electronic media).

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DEFAMATION IN COUR T PR AC TICE

Mladen Srdić

When applying international standards and laws on the protection against defa-mation, courts are facing numerous problems and dilemmas. They wish to help lawyers, the media community, and especially journalists and editors assess which stated or disseminated expressions (terms used in the law) are consid-ered to be defamatory and what would the consequences of considering a type of statement defamatory be. This is why the analysis will include certain cases of domestic court practice, as well as of the practice of courts in the region, and additionally, the jurisprudence of the European Court of Human Rights in this.

Although defamation can cause damage to someone when mass media pub-lications are not involved, such cases are very rare. This is why the analysis is limited mainly to legal procedures when the expression in question is published in the media. In this case, the defamatory statements become available to an un-limited number of people and thus it is potentially more harmful to someone’s honor and reputation.

CONCEPT OF DEFAMATION

In theory, defamation is often defined as false information which harms the reputation of another person or it is defined as an illegal act of intention and carelessness harming another person by stating or disseminating false facts to a third person. According to the Law on Protection against Defamation of RS, ‘’defa-mation is in fact stating or disseminating something false which can harm the reputation of one person,’’ and the Law of the Federation defines defamation as ‘’ the act of harming the reputation of a private or legal entity by making or dis-seminating an expression of false fact identifying that private or legal entity to a third person.”

This legal definition of defamation entails that beside true facts, there are also the false ones. This confuses many people who think that if a fact is not true, then it is not a fact in the first place. However, this linguistic contradiction does not have too much influence on the application of the law in practice.

Stating or disseminating can only include statements which refer to a certain event, objective states, actions, occurrences and similar, for which it can be ob-jectively determined and assessed whether it is true or false; value judgments cannot be considered defamation (this extremely important question will be elaborated later on). The content of statements should refer to actions, events,

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and similar issues in both present and past, while the statements about possible and future events cannot form the basis for a valid legal claim.

It should be mentioned that expressing every value judgment is still not entirely protected by the European Court. Namely, courts consider whether the state-ment is factually justified and expressed in good faith and because of public interest, or whether it is exaggerated.

Therefore, defamation exists only if what is stated or disseminated can harm the reputation of one person, if it causes damage to this person, or if it is false.

DIFFERENCE BETWEEN FACTS AND VALUE JUDGMENT

Article 7. Law on Protection against Defamation of Federation112

There shall be no liability for defamation where: a) by the expression an opinion was made, or if the expression is substantially true and only false in insignificant elements;

Article 6. Law on Protection against Defamation of RS213

The following cases will not be treated as liable for defamation:

a) If there is the expression of opinion or if the expression is substantially true;  As it was said before, when determining if a certain statement represents defa-mation, it is very important to identify whether one fact is stated or dissemi-nated, or if it is a simple value judgment. In theory, statements representing an opinion are defined as statements without any factual aspects which could be proven false or which cannot be justifiably interpreted as giving actual facts in specific circumstances, including the language used (rhetoric, exaggerating, sat-ire or ridicule).

As long as there are personal perspectives and observations of a certain event or situation, that cannot be confirmed or negated, the essential facts on which the opinion is based can be proven. Basically, a person can stand trial only on false statements that can damage one’s reputation. But if such information is published in the media, the media will not be considered responsible if the journalist or publication have a legitimate goal, when the matter is regarding public interest or and when reasonable efforts are made to confirm the facts. Therefore, a defense based on bona fide action can in a certain way replace 1 Law on Protection against Defamation of FB-H (Sarajevo, 2003), Official Gazette of FB-H No. 19/03, entered into force in 2003.2 Law on Protection against Defamation of RS (Banja Luka, July 2001), Official Gazette of RS No. 28/94, entered into force on 1 August 2001.

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proving the truth. Unfortunately, the court practice in Bosnia and Herzegovina rarely shows a well-intended action when it comes to establishing the facts and their presentation to the public.

In each case, it is important to distinguish facts from value judgments. The im-portance of such distinction was particularly emphasized by the European Court in its famous judgment Lingens vs. Austria in 1986.3

14 This case is one of the most important ones in the practice of the European Court, as it set some of the basic standards that have been adopted by entity laws on protection against defama-tion.

More specifically, in 1975, P. Lingens, an Austrian journalist, published two ar-ticles in the Profile magazine from Vienna in which he severely criticized Bruno Kreisky who was the federal chancellor at the time because of his stance regard-ing the leader of a political party who was a member of the SS brigade during World War II, as well as because of his attack on Simon Wiesenthal who publicly spoke about the political history of this politician. Because of these articles, Kre-isky brought suit for defamation.

On March 26th 1979, the County Court of Vienna partially adopted the complaint and fined Lingens with 20 000 Austrian shillings. After both parties filed com-plaints, the final decision of the Court of Appeal in Vienna was a smaller fine of 15 000 shillings.

In the petition submitted to the European Commission on April 19th 1982, Lin-gens complained about the sentence for the act of defamation, claiming that this represented an unjustified interference into his right to freedom of expres-sion, against Article 10 of the Convention.415 The European Court decided that the sentence of the County Court in Vienna, confirmed by the Court of Appeal, was an interference of “public authorities” into Lingens’ right to freedom of expres-sion. The interference was prescribed by law and it had a legitimate goal in line with Article 10, paragraph 2 of the Convention.

The Government of Austria claimed that in this case there was a clash between the right to freedom of expression (Article 10) and the right to respect for pri-vate life (Article 8). However, the European Court stated that the criticism made by Lingens referred to the public statement of Kreisky and his political stance so that there was no need to examine Article 10, in the light of Article 8 of the Convention.

While examining the proportionality of the sentence in this case, the European

3 Lingens v. Austria (9815/82), paragraph 46, 8 July1986, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 22 March 2012).4 The European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950), entered into force 3 September 1953.

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Court primarily pointed out that freedom of expression is one of the main foun-dations of a democratic society and that it also refers to “information” or “ideas” which could be “offensive, shocking or disturbing.” It also emphasized the par-ticular importance of these principles when it comes to press – “the task of mass media, namely, is to make information and ideas about political issues available and on the other hand, the public has the right to receive such information.” Besides that, freedom of the press represents one of the best ways for the public to hear the ideas and stances of political leaders and to form an opinion on this.

In this sentence, the European Court also emphasized that the “scope of accept-ability of criticism of political leaders is wider than the one of the criticism of regu-lar individuals,” and that “even though politicians enjoy the protection in accor-dance with Article 10, paragraph 2, demands for the protection of their reputation have to be measured in relation to the interest of having an open discussion in the society related to political issues.” In the case of Lingens, relevant articles dealt with political issues of public interest in Austria. The content and tone of these ar-ticles were quite well measured, but certain expressions were capable of harming the reputation of Kreisky. However, as the article discussed Kreisky as a politician, the political context in which the article was written had to be taken into account and this is the post-election controversial political situation.

The European Court considered that, in these circumstances, the sentence passed to Lingens was in a way a censorship and that it would probably prevent him from expressing such critical opinion in the future. Therefore, such sentence could harm the mass media in fulfilling their task of providing the information for general public. The European Court discussed the decisions of domestic courts in the case of Lingens. Disputable parts of the articles referred to Lingens’ value judgments, his right to freedom of opinion and delivering particular ideas. Austrian courts, however, determined whether Lingens proved his statements to be true in accordance with Article 111, paragraph 3 of Criminal Law. Related to this, the European Court highlighted that there had to be a difference be-tween facts on one hand, which can be proven, and value judgments on the other, which cannot be proven. Beside that, the facts on which Lingens based his value judgments were undisputable and he acted in a bona fide manner. In conclusion, the European Court emphasized that the interference into the right to freedom of expression was not necessary for the protection of reputation of the others and, thus, Article 10 was violated.

DISTINCTION IN THE PRACTICE OF DOMESTIC COURTS

At first glance, establishing the difference between opinion and factual state-ment seems simple, but in practice this is not always so. The analysis will give

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several examples of domestic courts practice of deciding on the existence of defamatory expressions in the media.

The judgment of the Cantonal Court in Sarajevo No. P-45/03, in its exposition, states that:

having in mind that defamation is also defined as a term which is used for an illegal act of intention and carelessness causing damage to another person by stating or disseminating false facts to a third person, the opinion of the Court is that in this specific case, the conditions were fulfilled in the sense that some expressions in the article in question could be treated as a defamation. Namely, it was published that the plaintiff preferred military staff and that she brought benefits to the owner R. who then gave her free swimming in the pool. These statements were obviously insulting. However, the article in question also says ‘thanks to the strong connections of the plaintiff in the Federal Ministry of De-fense, R. can be sure that his premises will remain untouched, although they were built on a fallout shelter....’ This is how the author stated facts which sug-gested, as they were presented in such way, that the plaintiff was able to use her contacts in Federal Ministry of Defense to get a favorable treatment of a third person and it could be supposed that such behavior was not in accordance with valid laws. This represents a factual statement which can be proven true or false. Such expression cannot be considered only as ‘opinion’ or ‘satire’.

However, this was not an opinion of Constitutional Court of B-H as it is stated that: “the expressions from the disputable text entirely represent value judgments, that is, the opinion of applicants on plaintiffs and relations in daily newspapers for which they work, and they do not contain any factual statements which could be proven true or false. The statements “A.D. prefers military staff unlike I.A. who prefers police officers. However, both of them bring benefits to the owner R. who sometimes allows them to swim in the pool (together) for free”, can only be treated as value judgments about defendants and relations in daily newspapers for which they work. If the opposite was considered, it could be rightly asked how it is even possible to prove factually that someone prefers military or police staff and hence brings ben-efits to the person for whom they work and that this person then treats them to a joint swimming in the pool. Such statements cannot be proven because they do not contain the minimum of facts which could be verified by objective evidence.’5

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Judgment No. P- 75/03 of the Cantonal Court in Sarajevo rejected the state-ment of claim in the case where several journalists sued the defendant S.A. from Sarajevo. This judgment was later on confirmed by the Supreme Court of FB-H, and Cantonal Court stated that despite obvious exaggeration, the expression

5 Decision on the merits, applicants: Senad Avdić, Danka Savić and Adnan Buturović, Con-stitutional Court of Bosnia and Herzegovina (No. AP 787/04), 20 December 2005, http://www.ccbh.ba/bos/odluke/index.php?src=2 (accessed 8 May 2012).

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of the defendant is basically a value judgment and not a facual statement. In this specidic case, the statement is partially metaphorical, too, which should be assessed very carefully when it is determined whether there was a factual state-ment or not. The judgment states the following:

Also, the opinion of this Court is that the statement of claim was not well-founded because of other reasons, too. Namely, in the sense of Article 7, paragraph 1, point a) of the Law on Protection against Defamation there is no liability for defamation if the expression contained an opinion. Opinion is defined as a statement without any factual aspects which can be proven false or which cannot be justifiably inter-preted as expressing actual facts in certain circumstances including the language which is used (rhetoric, exaggerating, satire or ridicule). In the specific case, the dis-putable expression of the defendant contains his criticism of activities of ‘Avaz’. More precisely, the defendant stated that Dnevni avaz was anti-journalistic, the biggest tumor in our journalism, that the new Bosniak mafia was dictating its work, that it was terrorizing the public with its headlines, that it was using lies, constructions, harangues, and similar, and that they were the Al-Kaida of the media, which were all the statements given by the prosecution as the factual basis for charges. Compar-ing the work of Dnevni avaz with a tumor, terrorizing the public, etc. is obviously stated metaphorically and it does not express facts but gives a value judgment with a high level of exaggeration. Therefore, this Court considers that this has to do with the expression of opinion of the defendant. Also, the opinion of this Court is that the readers of expressions in question could not have taken them literally and hence they could not have supposed that the defendants were the members of a terrorist organization such as Al-Kaida and that they were actually terrorizing the public, be-cause the exaggeration in this expression is obvious. Therefore, although these are very rough and unmeasured qualifications and charges, such circumstances are not sufficient for this expression to be seen as defamation in the sense of the Law on Pro-tection against Defamation. In addition, this is surely so because Article 2, point b) of the Law stipulates that the right to freedom of expression protects the content of expression, as well as the way in which it was delivered and it is not applied only on expressions considered as non-offensive or as a praise but also on the expressions which can offend, enrage or disturb someone.

The judgment passed by the Banja Luka Basic Court No. P-1415/02 in 2003 concluded that the statement of the prime defendant published by the sec-ond defendant was the act of defamation against the plaintiff. Defamation occurred by consciously delivering false facts, hence misusing the right to freedom of expression. The defendants were thus obligated to pay the com-pensation of 5,000 KM.

The exposition of the judgment of the Basic Court emphasizes that the title “Customs manager on Šepak - the best man of D.K.,“ with subtitle “J. M. claims that customs officers responsible for smuggling sugar are not suspended” and

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the content (“the proof of us dealing with organized crime is that the lights at the border were turned off so that the vehicles could get to Serbia. This could not have happened without the permission from the top. I don’t know to which political option the customs manager on Šepak belongs, but it is well-known that he is the best man of D.K.“) were established based on the evidence of-fered by the prosecution, that the information in the article is not true. Having in mind that the magazine of the second defendant had a great circulation and it is sold all over Bosnia and Herzegovina, the Court established that these false statements caused the violation of rights of the plaintiff and they harmed his reputation. In the time of publishing this article, the plaintiff was the president of National Assembly of RS, hence he was exposed to the judgments of public because of his position.

According to the appeal of the second defendant, the Constitutional Court of B-H, in its decision No. AP 1819/07, stated that “the existence of facts can be prov-en, but whether value judgments are true cannot. The expression in question was not a statement of value judgment which cannot be proven, instead it was written and published as a statement of fact in the context of organized crime to which it is indicated by the content of the text ‘the proof of the fact that we are dealing with organized crime is that the lights at the border were turned off so that the vehicles could get to Serbia. This could not have happened without the permission from the top. I don’t know to which political option the customs manager on Šepak belongs, but it is well-known that he is the best man of Dragan Kalinić...’, which, unlike value judgments – can be proven.“6

17

EXAGGERATION AND PROVOCATION

A very important judgment of the European Court, Perna v. Italy in 2003718, stat-

ed that journalistic freedoms, according to the interpretation of the Court, also contain “the possibility of using a certain level of exaggeration or even provoking. Moreover, although the Court does not have to approve the polemical, or even ag-gressive tome used by journalists, Article 10 not only protects the core/content of expressed ideas and information, but the form through which they were expressed, too. And also, related to this, the Court regularly emphasizes that the choice of forms and ways of presenting the information is an autonomous right of journalists and editors protected by Article 10 and that it is not a task of Courts (neither Europe-

6 Decision on merits, applicant ‘Dnevne Nezavisne novine - Banja Luka’, Constitutional Court of Bosnia and Herzegovina (No. AP 1819/07), 11 November 2009, http://www.ccbh.ba/bos/odluke/index.php?src=2 (accessed 8 May 2012). 7 Perna v. Italy (48898/9), 6 May 2003, http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/1d4d0dd240bfee7ec12568490035df05/2a9a7ade95e63f7c41256d1e00462de8?OpenDocument (accessed 8 May 2012).

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an, nor national) to impose on the media a desirable form of expressing ideas and information.”8

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The judgment passed by the Supreme Court of the Federation of Bosnia and Herzegovina, No. Gž–125/05, states the following: ‘’ ..by analyzing the content of the defendant’s public statement made on 7 September 2003, which was delivered resolutely in the reasons for charges of first instance, the court of first instance de-cided that this statement expressed only an opinion and a value judgment about the defendants and their actions. This Court, too, finds that such statement of the defendant is not a violation of civil law which would be defamation and this is why the defendant is not liable according to the civil law. Namely, in order for expressing or disseminating one statement in the sense of the provision given by Article 4, point d, of the Law on Protection against Defamation of FB-H to be a defamatory act, it is necessary to be able to determine and prove the facts, that is, factual statements, true or false. On the other hand, opinions or value judgments, that is, a general opin-ion about someone, even if it reaches a third person, is not an act of defamation in the sense of the article which was quoted, nor is it important to know what subjec-tive feeling of the harmed person was caused by such opinion. If it was the other way round, different interpretations of the provisions of the Law on Protection against Defamation would question the main principle of freedom of expression and opin-ion which is guaranteed by Article 10 of the Convention on the Protection of Human Rights and Fundamental Freedom.9

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NOT EVERY VALUE JUDGMENT IS PROTECTED

On the basis of the Law on Protection against Defamation, a person cannot be legally liable for an opinion, but this does not mean that all value judgments are fully protected. Therefore, even though in court proceedings it is not legitimate to demand a value judgment to be proven true as a reason for someone not to be liable, it does not mean that delivering every offensive value judgment en-joys the protection of the European Court.

The Court carefully assesses whether the use of certain expressions, that is, value judgments harming someone’s reputation, is justified in specific circum-stances or expressed in good faith or for public interest, or still crosses the limit of freedom of expression in a democratic society. In its judgments, the Court emphasized that “even in the cases when statements grow into value judg-

8 See: Perna v. Italy (48898/9), 25 July 2001, http://www.iidh.ed.cr/comunidades/lib-ertadexpresion/docs/le_europeo/perna%20vs%20italy%202001.htm (accessed 8 May 2012).9 Č.P. v. the Federation of Bosnia and Herzegovina, Canton 10 Livno and Municipality of Drvar (the Supreme Court of FB-H Gž – 125/05), 29 September 2005.

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ments, the proportionality of interference depends on the fact whether there is an adequate factual basis for a disputable statements, because value judgments, too, without any factual basis to back them up can be exaggerated.”10

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Facts, as the basis of a value judgment certainly do not have to be entirely cor-rect, instead only their important and relevant elements must be correct.

IDENTIFYING DEFAMED PERSONS

In order for some expression to be considered as defamation, the claims repre-senting this expression should refer to a specific person. The Law on Protection against Defamation of RS states “identifying this person to a third person”11

22 and the Law on Protection against Defamation of FB-H states “identifying this legal entity or a natural person to a third person”.12

23 Referring to the person to whom defamation is related can be direct, but it can also appear in the form of not naming that person explicitly. It is sufficient to realize according to circumstanc-es to who the statement refers. In practice, there can be problems with regards to the identification of a certain person, especially if only first and last names are mentioned which are generally common in Bosnia-Herzegovina.

For example, in the judgment of the Sarajevo Cantonal Court, No. P-117/03, charges were pressed by Dušan Lukić, because of the article which stated that certain Dušan Lukić participated in war crimes in Doboj. This judgment repudi-ated the statement of claim due to the lack of evidence of identification of the person who made charges, and the exposition, inter alia, stated the following:

As one of the conditions which have to be fulfilled in order to for the expression to be treated as defamation, it is necessary to identify natural or legal entity to a third person. In this specific case, this Court considers that there is no such element in this disputable expression. Namely, the person mentioned as a member of the man-agement of SDS, in the statement of a witness which was delivered in this article, is named only as ‘’Dušan Lukić’’. There are no other attributes given to this name, such as profession, name of the father or address. It is a fact that name Dušan and last name Lukić are very common in Bosnia and Herzegovina. In this procedure, it was not possible to establish that there was only one Dušan Lukić in Doboj and that it was precisely the person who made charges at the time of the events described in the testimony and published in the article. Furthermore, the article precisely said that this was the statement of a witness whose initials were given and this state-

10 Europapers v. Croatia (25333/06), 2006. p.26, http://www.5rb.com/case/Europapress-Holding-D.O.O-v-Croatia (accessed 16 February 2012).11 Article 5:1. 12 Article 6:1.

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ment was put in quotes in the article. The entire article, which is quite long, mostly writes about war activities of other people whereas the name Dušan Lukić is men-tioned nowhere else. Having in mind the abovementioned, the opinion of this Court is that the conditions stipulated by the Law on Protection against Defamation were not fulfilled and hence the expression in question cannot be treated as defamation.

While dealing with the appeal with regard to the abovementioned judgment, the Supreme Court of the Federation, in its judgment No. GŽ-130/04, confirming the first judgment, stated:

In order not to repeat the reasons of the court of first instance, this Court notices that contrary to the claims made in charges, the first name Dušan and last name Lukić are common in our country. The article in question lists the managers of SDS in Doboj and gives professions such as: female police officer, director of the board of executives, teacher, doctor, the president of SDS, whereas with name Dušan Lukić there is no ‘lawyer’ or ‘former judge’, and if the word had been pre-cisely about the person who made charges, this certainly would have been men-tioned. Therefore, it can be assumed, as this is a respectable person and a lawyer in Doboj, which is not a small town, that his function would have surely been mentioned. Therefore, this Court believes that the defendant is not the person mentioned in the article in question and that it is not clear why this person saw using this name and last name without any other marks as an attack on him and why he made charges.

In another example, the judgment of the Sarajevo Cantonal Court No. P-177/03, in the case of Muminhodžić dr. Kasim from Tuzla against the first defendant Ari-jana Saračević-Helać from Sarajevo, the second defendant Bakir Hadžiomerović from Sarajevo, and third defendant Federal Radio-Television of B-H from Sara-jevo, also repudiated the claim because of the lack of identification of charged persons and the exposition stated the following:

... with regard to the prosecution, it is only stated that today, Muminhodžić is the deputy of Mujkanović. The result of the abovementioned is that the report explic-itly says the defendant is in good relations with doctor Mujkanović, that he was the president of Municipality Board of SDA, that his authority was weakening in his own party and that today he is the deputy of doctor Mujkanović. Such state-ments are obviously not the statements which could cause any damage to the plaintiff, as they are not defamatory. The person is not identified as someone who took the money of humanitarian aid and opened a doctor’s office in Gradačac, because the report clearly states that it is about Mujkanović. In the proceedings, the plaintiff claims that this was a mistake of the reporter and that viewers must have thought that it was about him, as it was well-known that he used to be the Minister of Health in the Canton and that he worked in the Health center Gradačac and used the equipment in the center for diagnosis. The Court could not accept

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this because it was obviously an assumption and a guess about what the view-ers could conclude and it was not a clear identification of the plaintiff to a third person, that is, to viewers. On this occasion, it is not important whether this was possibly a mistake of the reporter or he/she was uninformed about who actually worked in the Health Center in Gradačac and who the Minister of Health was in which period of time.13

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In this case, the name of the plaintiff was probably misinterpreted because of the mistake of the reporter. Therefore, it cannot be established that a third per-son (the public) could think that the expression in question in fact was related to the plaintiff and that this is why there is no element of identification necessary for one expression to be treated as a defamation.

IDENTIFYING DEFAMED GROUP

A particular problem is the case in which the expression in question refers to a group of people. In the aforementioned case, judgment No. P - 75/03 ,the Sara-jevo Cantonal Court rejected the statement of claim and stated the following:

Therefore, one of the elements which has to be fulfilled in order to get the expres-sion which can be treated as a defamation is the existence of identification of a natural or legal entity to a third person. This court considers that there is no such element in the expression in question. Namely, the defendant in his statements mentions ‘Avaz’ and calls it ‘ a criminal media organization’, he states that ‘lies made by Avaz are used to serve the political goals of the high representative’ and that Dnevni avaz works by the measure of the new Bosniak mafia...it could be said that they are the Al-Kaida of media’, etc. Therefore, the defendant talks about Dnevni avaz and ‘Avaz’, that is, about the daily newspaper and its publisher. The statements do not contain any names of the plaintiffs. According to the practice of European Court of Human Rights, individuals in a group can be authorized to make charges for defamation on the condition of proving that they are personally identified and directly affected. In this specific case, the opinion of this Court is that plaintiffs are not personally identified to a third person, nor was it proven in the proceedings that they were directly affected by the statement of the defendant. Namely, the expression refers to ‘Avaz’ in general and to ‘Avaz’as a legal entity and daily newspaper, and the defendant does not mention journalists of ‘Avaz’ in his statement, neither individuals nor a group. Instead he speaks about ‘media orga-nization’ and ‘a group of people’. This Court considers that the public, that is, the readers of Dnevni avaz had no reason to identify all journalists of Dnevni avaz with expressions given by the defendant. Therefore, there is no basis for the claims

13 Muminhodžić Kasim v. Arijana Saračević-Helać from Sarajevo, Hadžiomerović Bakir from Sarajevo and FTV B-H Sarajevo (Sarajevo Cantonal Court No. P-177/03), 24 May 2005.

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of plaintiffs that they were labeled in the articles in question as members of ter-rorist and mafia organization because they are not identified as such to a third person, that is, to the public. Hence, since there are no elements of defamation stipulated by the Law, the expression in question cannot be seen as defamatory.

In another case, involving plaintiffs who were journalists of the Dnevni avaz newspaper, the judgment of the Supreme Court of B-H GŽ-2/05 states that “the statements of the defendant published on page 6 of daily newspaper Oslobođenje on 23 October 2002, and on page 5 of Nezavisne novine on 22 October 2002, accord-ing to the Court, refer to « Dnevni avaz» newspaper and «Avaz» as its publisher and not to specific natural persons. Therefore, the statements of the defendant cannot be treated as defamation of the plaintiffs which harmed the reputation of each of them individually. For this reason, their request for compensation has no basis ac-cording to the Law on Protection against Defamation of the Federation of B-H, and this is why the stance of the court of first instance expressed by rejecting the request for compensation due to no basis was correct.”

According to the practice of the European Court of Human Rights, individuals in one group can still be authorized to make charges of defamation if they can prove that they were personally identified and directly affected. Theoretically, in case a defamatory expression referred to “all” members of some group (e.g. if someone stated that all journalists were criminals or that all judges were cor-rupted) then all members of that group could make legitimate charges in or-der to receive damages, but in practice it would be difficult to prove that it was precisely them who were harmed by a certain expression, hence the common opinion is that even in these cases the Law should be applied restrictively when it comes to limiting freedom of expression.

TYPE OF DAMAGE AND COMPENSATION

According to the provisions of entity Laws on Protection against Defamation and the same law of the Brčko District, the compensation is imposed exclusively with an intention of compensation for the damage caused to the reputation of the plaintiff, with a note that this compensation has to be proportional to the damage which has been caused.

The Constitutional Court of B-H emphasized that every individual is character-ized by the category of reputation, which is an integral and inseparable part of his/her personality. Reputation is the regard of a person in a social community. It is very important for the decision imposing the compensation not to have a punishing nature in relation to the person who expressed a statement that caused damage to another person. The compensation is imposed according to

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the rules of the Law on Obligatory Relations1425 prescribing the forms of compen-

sation in the case of a violation of reputation and honor.

Article 200. Law on Obligatory Relations

For physical pain and for emotional distress due to less life activities, violations and due to harming someone’s reputation, honor, freedom of rights or rights of a person, death of a close person, as well as due to fear, the Court shall, if it estab-lishes that the circumstances of the case, and especially the severity of pains and fears and the time they last are justifiable, impose a fair fine independently from the compensation for material damage as well as if this was absent.

When deciding on the request for the compensation for immaterial damage, as well as on its amount, the Court will take into account the importance of vio-lated goods and the goal to which this compensation serves, but also the fact that it is not contributing to tendencies which are not connected to its nature and social purpose.

Pecuniary damages and the forms of compensation for pecuniary damages are prescribed by articles 154, 155 and 189 of the Law on Obligatory Relations and they can represent an ordinary damage and compensation for what was lost. Non-pecuniary damages related to the violation of reputation are connected with non-pecuniary goods, for a morally-psychological side of the personality of the harmed person, and they are reflected in emotional distress suffered by this person.

As seen in Article 1 of both entity Laws on Protection against Defamation, the law does not specify the kind of a damage caused by harming the reputation of a natural or legal entity. The following dilemma can be derived from this – can a legal entity suffer non-pecuniary damage caused by expressing or disseminat-ing false facts?

When it comes to the questions not regulated by these laws, adequate provisions of the laws regulating obligatory relations are applied, as well as those of the Law on Legal Proceedings, and the laws regulating executive procedures in FB-H and RS. This means that, in a concrete situation, it is possible to apply the Law on Oblig-atory Relations regulating the compensation for damage. According to Article 200, paragraph 1 of the Law on Obligatory Relations, in order for non-pecuniary dam-age to be caused due to harming one’s reputation, the condition of the existence of emotional distress has to be fulfilled first. Legal entitys cannot feel emotional distress and so they cannot deal the pains caused by harming one’s reputation.

14 Law on Obligatory Relations, Official Gazette of SFRY No. 29/78, 39/85 and 57/89 and Official Gazette of RB-H No. 2/92, 13/93 and 13/93 and Official gazette of Republika Srpska No: 17/93 and 3/96, http://www.sava-osiguranje.rs/img/Zakon%20o%20obligacionim%20odnosima.pdf (accessed 28 July 2011).

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Therefore, in some judgments, in case the reputation of a legal entity is harmed, there can only be pecuniary and not non-pecuniary damage.

The example of this stance is he opinion of the Court given in the exposition of judgment No. P - 1/04 of the Sarajevo Cantonal Court in 2004:

It is notorious that legal entitys cannot feel emotional distress, and so the emo-tional distress caused by harming the reputation. As the Law on Protection against Defamation does not specify the type of damage which may be caused by harm-ing the reputation of a legal entity, that is, as this issue is not regulated by this law, it is thus subsidiary to apply the Law on Obligatory Relations. Therefore, the opin-ion of this Court is that in case the reputation of a legal entity is harmed, there can only be pecuniary and not non-pecuniary damage. In its final words, the plenipo-tentiary of the plaintiff emphasized that the plaintiff determined the amount of damage as a type of a fair compensation in the lump, and that pecuniary damage could not be precisely established or specified because it was an abstract damage which would be caused and which should certainly occur without proving and determining in every concrete case. From the abovementioned, it can be derived that the plaintiff in the statement of claim demands only non-pecuniary damage. However, even if the Court accepted that the statement of claim referred to pecu-niary damage, the plaintiff would still be rejected because during the procedure, they did not prove that pecuniary damage occurred.15

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However, the opinion of the Supreme Court of the Federation expressed in judg-ment No. GŽ-22/05 on March 15th 2005, is the following:

Therefore, this Court notices that the lack of the complaint of the first plaintiff could make it possible to sustain the decision with regard to the fine, even though the court of first instance gave wrong reasons when it rejected the first plaintiff with his state-ment of claim. The reason for this is that Article 6 of the Law on Protection against Defamation of FB-H in point 1, quite clearly states that every person who caused damage to the reputation of a natural or legal entity by expressing or disseminat-ing false facts while identifying this natural or legal entity to a third person, is re-sponsible for defamation. It is not disputable that the first plaintiff is a legal entity. Furthermore, this means that even the reputation of a legal entity can be harmed. It is certainly not about emotional distress, but it is about the compensation for defa-mation. This is imposed both on legal and on natural persons because the basis is the compensation, that is, the damage is caused by defamation.16

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Contrary to this opinion, many lawyers think that the reputation of a legal entity which has been harmed can in the end result only in pecuniary dam-

15 Zeko Ivica v. Slobodna Dalmacija (Travnik Cantonal Court P-1/04), 13 October 2005, www.ksudnt.ba/sudska_praksa/P-1-04.doc (accessed 8 May 2012). 16 Applicant Junuz Cero, the Supreme Court of the Federation of Bosnia and Herzegovina (GŽ-22/05), 13 March 2005.

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ages suffered by this legal entity due to the loss of the citizens’ trust in its products and services. In any case, perhaps it would be the most appropriate to solve this dilemma by a possible change of this Law.

In court practice, it has been noticed that the demands derived from harming one’s reputation and honor are mainly directed at imposing the non-pecunairy damages due to emotional distress which have been caused, whereas compen-sation for pecuniary damages is very rare.

AMOUNT OF COMPENSATION

The entity laws on protection against defamation stipulate that the compensa-tion should be proportional to the damage caused to the reputation of a person and that, while determining the compensation, all circumstances of the case should be taken into account. What also needs to be taken into account are the measures taken by the defendant in order to mitigate consequences such as: publishing a retraction and taking back false facts or apologizing, the fact that this person gained material benefits by expressing or disseminating the state-ment, as well as the fact that the amount of the imposed compensation could cause great material difficulties or insolvency of this party.

The compensation for damage in civil procedures can, in some specific cases, represent a clear interference into the realization of the right to freedom of ex-pression. In the famous case of Tolstoy Miloslavsky17

28, the British Court decided that the article written by the plaintiff in fact represented a defamation and re-quested that he, along with the distributor of the text, would pay to the victim compensations in the amount of 1,500,000 British pounds.

Concluding that the amount of compensation was a a violation of Article 10, the European Court considered that: “… it does not mean that the jury was free to make any award it saw fit since, under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the in-jury to reputation suffered. The jury had been directed not to punish the applicant but only to award an amount that would compensate the non-pecuniary damage to Lord Aldington [victim].” Also, the Court concluded that “ the scope of judicial control, at the trial and on appeal, at the time of the applicant’s case did not of-fer adequate and effective safeguards against a disproportionally large award.” Accordingly, “ having regard to the size of the award in the applicant’s case in conjunction with the lack of adequate and effective safeguards at the relevant time against a disproportionally large award, the Court finds that there has been 17 Tolstoy Miloslavsky v.United Kingdom (18139/91), 13 July 1995, http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/1d4d0dd240bfee7ec12568490035df05/8b6bd2df00f0abb1c1256640004c2d62?OpenDocument (accessed 8 May 2012).

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a violation of the applicant’s rights under Article 10 of the Convention.”1829

In proceedings related to charges for defamation the defendants always think that the amount of the compensation is in fact a punishment for them. When it is pointed out to them that this is the amount determined as a compensation for damage, they emphasize that it does not matter to them whether they will call the amount to be paid a fine or a compensation for damage.

The amount of money imposed in Bosnia and Herzegovina for compensations at this time are mostly mild; the average amount is less than 5,000KM. In most cases, they fulfill the legal condition of not causing great material difficulties or the insolvency of the defendants. However, people see these amounts differ-ently, as some think that the amounts of compensation for damage are minimal, while others believe that they are too large.

On this issue, the opinion of the Supreme Court of FB-H, as expressed in judg-ment No. GŽ- 91/04, is the following:

The objections that the amount of non-pecuniary damage is too large are not valid because the goal of compensation for non-pecuniary damage is for the plaintiff to be provided with the satisfaction which would compensate for the non-pecuniary goods of which he/she was deprived, that is, to provide such satisfaction which this person would have had, had there not been the harmful event. In that sense, the compensation is only a satisfaction for this damage, hence this Court, too, consid-ers that the compensation of 5,000KM is appropriate and that the defendants are obligated to compensate to the plaintiff with solidarity.19

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A specific problem is the way in which the amount of non-pecuniary damage caused to the plaintiff will be determined in legal proceedings in case there is defa-mation. The situation becomes more complicated as, according to entity laws on legal proceedings, there is an exclusive disposition of the parties related to propose the evidence, as the principle of pecuniary truth is partially abandoned. Therefore, in some cases where plaintiffs were not able to submit the evidence regarding the circumstances of the amount of damage, since they established that the damage was certainly caused, the courts of first instance freely assessed its amount.

The Supreme Court of FB-H accepted this and its several judgments stated that, in relation to the amount of the determined non-pecuniary damages, it found that the court of first instance correctly applied the provision of the Law on Legal Proceedings when it determined the amount of compensation according to its discretion. Also, it was said that the existence of damage is assessed according

18 Ibid.19 Decision on merits, applicants: Radio-Television of the Federation of Bosnia and Her-zegovina and Bakir Hadžiomerović (the Supreme Court of the Federation of Bosnia and Herzegovina: GŽ- 91/04), 26 October 2004.

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to adopted social norms and measures, and not according to how much the per-son to whom the defamation referred is hurt subjectively. It is important for the Court to establish beyond doubt that the stating of false facts could harm the reputation and honor of the plaintiff. Therefore, the amount of damage caused is objectified in a certain way.

While solving the appeal to one of the judgments of the Sarajevo Cantonal Court, confirmed by the judgment of the Supreme Court of FB-H, the Constitutional Court of B-H, in the AP 1145/04 case, repudiated this appeal as it was not based on Article 2/3.e) and 2/3.h) of the Constitution of Bosnia and Herzegovina, and to Article 6, paragraph 1 and Article 10, paragraph 1 of the Convention of Human Rights and Fundamental Freedoms. In this case, the applicants thought that the court of first instance did not correctly apply the provisions of Article 127 of the Law on Legal Proceedings, which authorizes the Court to determine the amount of damage according to its discretion of the court. The decision stated the following:

Constitutional Court concludes that in the concrete case, the way in which Cantonal and Supreme Court interpreted positively-legal provisions cannot be considered ar-bitrary and it does not represent a violation of constitutional rights of the applicants. Both decisions that were contested state all necessary reasons and give detailed ex-planations. Also, there are no other elements which could indicate to the fact that the procedure was unjust, and the applicants did not challenge any procedural ac-tion in the proceedings of making contested decisions.20

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There are more casesin which the applicants believed that regular courts did not correctly apply the provisions of Article 127 of the Law on Legal Proceedings, that authorize courts to determine the amount of damage according to their own as-sess. At the same time, courts would be accepting the statements of the plaintiff that by publishing the text in question the plaintiff suffered damage, without any evidence found in relation to such circumstances. The Constitutional Court of B-H had a different opinion.

This is how in the case No. AP 1289/05, the Constitutional Court decided to adopt the appeal against the judgment of the Supreme Court of the Federation of Bosnia and Herzegovina No. Gž-17/05 and the judgment of the Sarajevo Can-tonal Court No. P-24/04 and established that there was a violation of the right to fair trial of Article 2/3.e) of the the Constitution of Bosnia and Herzegovina and of Article 6, paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, overruling the abovementioned judgments.

In this decision, Constitutional Court states:

20 Decision on appeal, applicant: «Pres-Sing» d.o.o. Sarajevo, Senad Avdić and Mirsad Fazlić (Constitutional Court of Bosnia and Herzegovina: AP 1145/04), 2 December 2005, http://www.ccbh.ba/bos/odluke/povuci_html.php?pid=26391 (accessed 12 January 2012).

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In the specific case, regular courts did not establish relevant facts of legal basis for com-pensation for damage, instead, they arbitrarily concluded that damage occurred and the applicant was liable, which caused the violation of the right of applicant to fair trial. As for the claims of the applicant regarding the violation of Article 10 of the Conven-tion, Constitutional Court considers that regular courts in challenged judgments made a right distinction between what represented value judgments and facts in relation to the published information, and that they did not cross the allowed degree of discretion of the court in this regard. However, as they did not establish the means correctly, in this case of compensation, in order to protect the goal, or in this case the plaintiffs right to ‘truth’, they did not fulfill the necessary condition for examination of the principle of pro-portionality between the means and the goal. This condition must be fulfilled when it comes to allowed interference into the right to freedom of expression.21

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In the exposition of the decision of the Constitutional Court of Bosnia and Her-zegovina for case No. AP 1454/06, what can be observed are the basic principles that courts should follow when determining the amount of caused damage. This decision, inter alia, states the following:

As it was said before, the courts established that the applicant committed defama-tion against the second plaintiff, which certainly harmed his non-pecuniary goods – the reputation, which caused damage to this person. The object of such damage is non-pecuniary goods related to morally-psychological part of the personality of the plaintiff, which is why the compensation for non-pecuniary damage is not compensation in the very sense of that word, as it does not provide the state which existed before the damage, thus its goal is not reparation. On the contrary, the com-pensation for non-pecuniary damage is one of the kinds of satisfaction given to the person who suffered the damage of violation of non-pecuniary goods. The assess of the compensation for non-pecuniary damage is a very delicate and complicated procedure because there is no general measure considering a very different morally-psychological constitution of each individual as well as considering other circum-stances in which the damage occurred and harmed the non-pecuniary goods of the plaintiff. Therefore, it cannot be expected that there will be exact ways and methods to establish the intensity and duration of non-pecuniary damage caused so as to determine the amount of damage caused in such way. However, even though while estimating the amount of compensation for non-pecuniary damage, courts have the right to discretion of the court. This discretion of the court is not absolute which is expressed in Article 200 of the Law on Obligatory Relations according to which «the court assesses the significance of damaged goods and the goal of the com-pensation» by taking into account the circumstances of the concrete case. From the perspective of Article 10 of the Convention, Constitutional Court notices that the

21 Decision on merits and permission, applicants: «Pres-Sing» d.o.o. Sarajevo (Constitution-al Court of Bosnia and Herzegovina: AP 1289/05), 9 November 2006, http://www.ccbh.ba/bos/odluke/povuci_html.php?pid=54194 (accessed 12 January 2012).

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decision of the court on the amount of compensation for non-pecuniary damage can violate the principle of proportionality between the interference of courts into freedom of expression and the importance of interest which they want to achieve by limiting this freedom. In that sense, European Court of Human Rights, too, conclud-ed that the very amount of the compensation for damage is a violation of Article 10 of the Convention, because it «does not mean that the jury was free to make any award it saw fit since, under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered.» (see European Court of Human Rights, Tolstoy Miloslavsky against the United Kingdom, judgment from 1995). Beside this, the Constitutional Court in its practice concluded that it is necessary that when establishing the existence of le-gal basis and the amount of compensation for defamation, courts should consis-tently apply the principles from relevant provisions of adequate Law on Obligatory Relations, Law on Protection against Defamation and Law on Legal Proceedings, respecting the specificity of every case so as to avoid arbitrariness in their actions.22

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Therefore, the discretion of the courts with regard to the amount of compensa-tion for non-pecuniary damages is limited by the principle of proportionality expressed in Article 10 of the Convention, demanding that the reasons and jus-tifications given by courts regarding their interference in the right to freedom of expression are relevant and sufficient, and that courts base their decisions on an acceptable analysis of relevant facts.

Which means would be appropriate to prove the existence of non-pecuniary damage caused by harming the reputation and honor of one legal entity?

Some believe that, in such cases, an opinion related to the circumstances of emotional distress should be given by an expert neuro-psychiatrist. Others be-lieve that it is sufficient to hear the plaintiff as a party in a procedure and pos-sibly a witness, determining the existence and level of non-pecuniary damage caused in this way. These are very disputable issues in court practice and there are different ways of dealing with them.

LIABILITY FOR DEFAMATION

Article 6, paragraph 1 of the Law on Protection against Defamation of FB-H2334

stipulates that every person causing damage to natural person or legal entity by expressing or disseminating false facts when identifying this natural or legal entity to a third person is liable for defamation. On the other hand, paragraph 2 22 Decision on merits, applicant: Sarajevska Pivara (Constitutional Court of Bosnia and Herzegovina: AP 1454/06), 17 November 2008 godine, http://www.ccbh.ba/bos/od-luke/povuci_pdf.php?pid=171357 (accessed 12 January 2012).23 Supra note 1.

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of the same regulation states that the author, editor, publisher and the person who supervised the content with such expression in some other way are all li-able for defamation expressed in the mass media.

Article 5 of the Law of RS2435 prescribes that there is a liability for defamation if a

person capable of work causes damage to the reputation of another natural or legal entity by identifying this person to a third person if they caused damage as authors, editors or publishers of the expression or as persons who, in some other way, efficiently controlled the content, just as the legal entity that published the expression.

As it can be seen, there is a small difference in the way in which entity laws regu-late the liability for defamation, but this difference can be significant in some specific cases. The main criteria when determining the liability are: working ca-pability (which is not explicitly stated in the Law of the Federation and is implicit instead), false information, causing damage, availability of this information to a third person and the existence of intention or carelessness.

The dilemma arises primarily with regard to the term ‘author’, that is, who can be treated as author in an individual case when a certain expression is dissemi-nated in the media. The County Court in Banja Luka faced this issue when issu-ing judgment 71 0 P 033381 09 Gž in 2009, where letters containing allegedly defamatory expressions were sent to the dean of a faculty and to OHR and were later published in the media. The defendant was the person who wrote and sent these letters. The court of first instance adopted the requirements of the plain-tiff considering the defendant as the author, but the court of second instance rejected this. The County Court in Banja Luka concluded that the defendant, even though she wrote the letters containing statements that could represent defamation, was in fact not the author in the sense of Article 5 of the Law of RS25

36, because this expression was given in the media and she is not the author, the editor, nor the publisher.

WHO IS THE AUTHOR OF AN INTERVIEW?

Such stance of the court practice brings one of the biggest dilemmas in the application of law, that is, the question of whether the person who was in-terviewed or who made some other type of a statement for the media is the author of this statement and whether this person can be liable for it, beside journalists, editor in chief and other persons who in some other way efficiently controlled the content of this expression. The Law of the Federation makes a

24 Supra note 2.25 Ibid., Article 5.

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greater distinction between the liable person who made a statement which was not published in mass media and the liable person when the expression reaches the media; the restrictive interpretation of this provision would say that the per-son who was interviewed for a print media or who was recorded in an electronic media when making a statement cannot be liable for defamation.

In the legislation and court practices of other European countries there is not a dilemma in such cases. Namely, it is considered that, primarily, the person mak-ing a statement is liable, and only after that there are there possibly liable per-sons working in the media that published this statement.

This seems logical because it would be unfair and inappropriate, for example, when recording one event or when there is a live program in which someone makes a defamatory statement, for this person not to be liable for their state-ments and to consider the editor in chief as the liable person instead, when this person could not do anything or could do very little to prevent such expression. Also, in practice, there are almost no clear cases when the prosecution’s require-ments are made because of the statement that was not published in the media and for which there could be a liability of every person who states or dissemi-nates it.

WHEN JOURNALISTS DISTANCE THEMSELVES FROM INTERLOCUTORS

The European Court gave a very detailed opinion on this matter in the case of Jersild vs. Denmark26

37 in 1994. In this case, Danish courts charged journalist Jersild because he brought the representatives of ultra-rightist skinhead organization to a television show and let them discuss their program in order for Danish public to see what this group does, in a television show intended for educated people; what his guests later on stated on his show was without any doubt “hate speech.”

The Supreme Court of Denmark still charged him for this. However, the Euro-pean Court of Human Rights found that this violated his right to freedom of expression because it was not him who expressed those ideas. Instead, as an illustration, he brought the people who spread such ideas considering that the society should know something about it, including the fact that they are dan-gerous. By this, the Court meant that the disputable report was broadcast as the part of a serous informative TV program and that it was intended for a well-informed audience. Among other, the judgment states the following:

News reporting based on interviews, whether edited or not, constitutes one of the most important means whereby the press is able to play its vital role of “pub-

26 Jersild v. Denmark (15890/89), 23 September1994, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 18 July 2011).

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lic watchdog”. The punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so.27

38

It is important to say that the Court established that the introduction made by the host, as well as the behavior of Jersild during the interview, clearly made a distance between him and the people he interviewed. For example, describing these people as members of the group of extremist youth supporting the Ku Klux Klan, Jersild also rejected some racist statements. This could be a good ex-ample of how one should act in the case where the person who was interviewed (for newspapers or for electronic media) expresses a statement that can be de-famatory or even treated as ‘hate speech.’ When there is a distance from such expression or if it is discussed by using arguments, it lowers the risk for journalist or a TV host in electronic media to be liable for the disputable expression.

In some judgments of cantonal courts in the Federation, people who were inter-viewed for the media were also liable (which naturally does not exclude a pos-sible solidarity in liability of the editor in chief, publisher as well as persons who were in some other way supervising the content of this expression). In one of these cases, the judgment of the Supreme Court of Federation of B-H, Number GŽ-132/04, confirms such opinion. The exposition of this judgment states the following:

Therefore, the gravity of the defendant’s act (causing damage to the reputation of the plaintiff by defamation) is assessed only on the basis of what the published arti-cle quoted as his statement, and the rest, the tone of the title, subtitle and other parts of the content could not be attributed to the gravity of the defendant’s defamation (having in mind the provisions of Article 2, paragraph 6 of the Law on Protection against Defamation).

From all that was mentioned above, it could be derived that the person who was interviewed or who made a statement is liable for the statement quoted in the media.

However, on the other hand, in judgment GŽ-155/05 the Supreme Court of FB-H expressed a different opinion In this case, the defendant was interviewed for newspapers. The decision of the Supreme Court of FB-H, confirming the deci-sion of the court of first instance, Cantonal Court, which repudiated the require-ments of the prosecution, states: -‘’there are no elements of defamation given in Article 4, point d of the Law on Protection against Defamation of Federation of B-H, hence there is no civil liability of the defendant for the compensation for damage.“28

39 The reason why the Spreme Court stated that there were «no elements of defa-27 Ibid.28 Judgment of the Supreme Court of FB-H, No. GŽ-155/05, 22 December 2005.

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mation» was the application of paragraph 2, Article 6 of the Law on Protection against Defamation of FB-H, which says that “for defamation made through me-dia outlets the following are jointly responsible: author, editor, or publisher of the expression or someone who otherwise exercised control over its contents.’29

40 As the defendant is not the author in this case he ‘was not passively legitimized in the subject when the expression appeared in the mass media,“30

41 thus he was not con-sidered liable for damage suffered by the plaintiff.

The opinion of the Supreme Court of Croatia is completely opposite and, in judgment number Kž- 1940/71 it states:

When the defendant was interviewed – and made a statement for editors and jour-nalists with a clear and an only goal of his statement and his fords to be published in the press, then such making statements to journalists is equal to writing for news-papers hence such expressions has to be treated as the authorization of articles in newspapers which disseminates such statement. Therefore, such case is related to stating or disseminating in the press in the sense of Article 169, paragraph 2, KZ, hence the County Court is in charge of this trial on the basis of Article 140 of the Law on Press and Other Types of Informing.

We believe that such stance is correct and that the changes of entity laws (which are not precise enough in this regard) or changes in court practices should solve this dilemma so that the person who is interviewed or who makes a statement for the media is liable for this expression just as it is the person whose expression was not published in the mass media.

DISSEMINATION OF EXPRESSIONS

Law on Protection against Defamation of FB-H3142 states that defamation occurs

if damage is caused to one’s reputation by stating or disseminating false facts, while the Law of RS32

43 prescribes that defamation is “stating or disseminating something false which can harm the reputation of one person’’33

44, and that ‘‘dissemi-nation occurs when the information from someone else is stated or spread.”34

45

Therefore, our laws explicitly state that defamation occurs when someone else’s false and harmful expression is delivered or disseminated. Representatives of the media that published the disputable statement very often emphasize that it was not 29 Supra note 1.30 Supra note 28. 31 Supra note 1.32 Supra note 2. 33 Ibid.34 Ibid.

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them who delivered such statement and that they took it over from another media hence they believe that they are not liable of damage caused. It is certain that this opinion is essentially wrong and that there is liability for disseminating such expres-sion without any doubt, in line with the abovementioned legal provisions.

However, this does not mean that every type of dissemination of false state-ments will be sanctioned. Instead, when discussing a particular case, the circum-stances of the occurrence of defamation will be considered. With regard to this issue, according to generally accepted international standards, it is considered that journalists still have the right to take over from other media information which can harm someone’s reputation, if such information is correctly quoted with an appropriate amount of carefulness, as well as if the party to which the disputable expression refers has the opportunity to comment on it and to react.

In the 2001 case of Thoma v. Luxembourg3546, there was a radio journalist who was

sentenced to pay one franc to each of 63 plaintiffs because of the harm caused to their reputation in radio program. Thoma based his defense on claims that he only quoted an article of a colleague journalist, but Luxembourg courts still sentenced him because he did not distance himself from disseminated state-ments that all members of Forest Committee of Luxembourg were corrupted. The program did not list all plaintiffs, but considering the size of Luxembourg, the public was clear about who these people were.

The European Court established that the program dealt with a controversial topic that was the widely debated in the media and that it was a matter of pub-lic interest. The Court also determined that the decision of domestic court was based on Thoma, quoting the article of another journalist in the radio program. Therefore, the European Court decided that the judgment that obligated the journalist to pay compensation for damage of reputation by disseminating statements of other journalist was contrary to freedom of expression ensured by the Convention36

47, and it emphasized that journalists are:

systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation was not reconcilable with the press’s role of providing information on current events, opinions and ideas.37

3648

In its practice, the European Court of Human Rights also concluded that there was a violation of Article 1038

49 of the Convention when two journalists were sentenced because they published information on financial and tax situation of a manager

35 Thoma v. Luxembourg (38432/97), 2001, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 28 July 2011).36 The European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950), entered into force 3 September 1953.37 Ibid. 38 Supra note 35.

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of a big company, although such information was easily accessible through public tax books (Fressoz and Roire v. France39

50, 1999). The same violation occurred in a case where journalists and environmental activists were sentenced because they jeopardized court investigation on a press conference, but the facts were available to the public even before the press conference (Weber v. Switzerland40

51, 1990).

Another decision made by the Supreme Court of Croatia, I Kž-670/76, is also in-teresting as it clearly shows that the court was in no doubt that dissemination of expression could be defamation. The decision states:

The act of defamation is not only making or stating something that one person learned on their own or a belief acquired by their own observations, it is also dis-seminating or stating someone else’s information or opinion.

In practice, it often happens that some media outlet publishes a disputable state-ment, another disseminates it non-critically, and then a person who suffered dam-age makes charges based on defamation only against the latter media. This is when liable persons in the media state that it is unjustifiable if only they go to court and base their defense on the fact that the information in question has already been published in another media and that the plaintiff should have made charges against that media. However, those harmed by statements have a full right to choose wheth-er they will sue all media that published this expression or only some of them. These persons can justifiably state that the damage was caused to them mostly when the information was repeated in another media (dissemination of expression) and not when the original statement was published. For example, they can claim that it is precisely the second newspaper disseminating the expression is the newspaper with a bigger circulation or a bigger influence or it is sold in the town where this person lives, or that the program which disseminated the expression has a bigger viewership and hence damage is bigger than the one in the first program.

The decision of the Supreme Court of the Federation, GŽ-20/05 in 2005, explicitly shows the opinion regarding the liability for dissemination of false expressions from other media, hence its exposition states the following:

The act of defamation also occurs when texts and writings from other magazines are used, and when these texts and writings are not well-founded and true, thus such circumstances (disseminating writings from other magazines) does not exempt the defendants from liability of pecuniary damage that has been caused, which is con-trary to what the applicants claim. Whether and whom the plaintiff sued in relation to initial publication in other newspapers do not exempt the defendants from liabil-ity for what they published in their own magazine as responsible people. Although

39 Fressoz and Roire v. France (29183/95), 1999, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 28 July 2011). 40 Weber v. Switzerland (11034/84), 1990, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 28 July 2011).

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other media, too, according to the appeal, harmed the reputation of the plaintiff in their writings it does not affect a civil-legal liability of plaintiffs for what they did.

In case No.P-117/03 of the Sarajevo Cantonal Court (which has already been discussed), the plaintiff disseminated the information about person with the same name and sur-name, which was already published on one web portal, hence the defendant stated that this made him free of liability and the written response to the charges he stated:

the information in the challenged text was thoroughly verified several times. The source of information were documents of State Commission for Gathering Facts on War Crimes in Bosnia and Herzegovina and the document called ‘War crimes of Ser-bian forces against Croats and Muslims in the region of Bosanska Posavina – area of Doboj’ from which the statements of witnesses of committed crimes were taken. The same information appeared on a Croatian web portal ‘www.Ljubija.hr/ratni zločini’, and it was provided by the witnesses of persecution in Doboj.

As it can be seen, the media against which the charges were made considered that, as the disputable information was published in several places, it was cer-tainly true, which was proven to be false. The sources that initially published these facts inaccurately named the plaintiff and this mistake was repeated by the media that non-critically disseminated the expression. The plaintiff chose to press charges against this media as he believed that publishing this statement in that media caused real damage while publishing it on a web portal and the abovementioned publication did not.

EXEMPTIONS FROM LIABILITY

Article 6 of the Law of RS4152, Article 7 of the Law of FB-H42

53

The following cases will not be treated as liable for defamation:

a) If there is the expression of opinion or if the expression is substantially true;

b) If the person who allegedly caused damage was obligated by Law to state or disseminate the expression or to state or disseminate the expression during legal, court or administrative proceedings;

c) If stating or disseminating the expression was reasonable.

When one court makes such decision, it takes into consideration all the circumstanc-es of the case, especially including: the way, form and time of stating or disseminat-ing the expression, the nature and level of damage caused, probability of damage being caused even if the expression was not stated or disseminated, data whether

41 Supra note 2.42 Supra note 1.

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the expression contains objective and accurate information about the expression of other people and whether it refers to the issues from private life of the damaged person or the issues of political or public importance.

The given provisions of the Law thus stipulate the possibility of being free of charges related to the possible defamatory statement even if the reputation of a third person is damaged by inaccurate statement. The function of these provi-sions is to follow the standards of international law with regard to limiting the freedom of expression and they contribute to the basic tendency of the law that this limitation should be applied restrictively as much as it is possible.

As the circumstances under which someone is not liable are set in a descriptive manner and they can be interpreted in various ways, the journalists and other people making statements have to pay attention to these circumstances and try not to cross the line prescribed by the framework. Then the courts have the task of assessing these circumstances when deciding whether a statement is defamatory or not. The main rule is that there cannot be a liability for expressing one’s opinion, that is, value judgments.

Also, when adjudging the compensation for damage caused by defamation, it would be impossible for the author of the expression to prove that the state-ment is true, whereas the request of proving that a factual statement is substan-tially true (in accordance with reasonable standard of proving) would be in line with Article 10 of the Convention.

The Law prescribes that there cannot be a liability for statements made in a par-liament or in a court during the procedure, which functions as the protection of a democratic political debate as well as the fairness and efficiency of procedures before courts, and these provisions are not disputable in the practice. However, there are still dilemmas related to what formulation can statements during ad-ministrative procedures contain.

This provision has been interpreted in a wide sense so far. There was a case where there was a demand for compensation for damage caused by a statement made by a dean of one faculty during a faculty meeting and published on the board of the faculty. In this case it was established that there was no defamation because the expression was stated as a part of the function of the dean [bolding by au-thor]. In this case, the judgment of the Sarajevo Cantonal Court number P –19/03, later confirmed by the judgment of the Supreme Court of FB-H, stated that ex-pressing critical opinion at the faculty meeting “cannot be treated in any way as a defamatory expression in the sense of the Law on Protection against Defamation of FB-H,’43

54 because the dean was doing his job at the time. Moreover, if bodies in charge treated this expression as defamation, then its ‘decisions would be entirely opposite to the goals of the Law on Protection against Defamation of FB-H,“ which 43 Judgment of Sarajevo Cantonal Court No. P-19/03, 10 May 2005.

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ensures the principle of freedom of expression.

Also, in the subject when the defendant was the minister of inner affairs of the Federation of B-H, because of the expression stated in one official letter, the judgment of the Sarajevo Cantonal Court number P-163/03, stated that “the letter was written within the authorizations of the first defendant as Federal minister.“ Also, this Court reiterates that ”the stance regarding this official com-munication, too, between the officials of state organs can represent the basis for defamation in the sense of the Law on Protection against Defamation of FB-H, which would be the violation of the main principle of freedom of expression.“44

55 Due to these reasons, the defendant was free of charge.

PUBLIC INTEREST AND ACTING WITH BONA FIDE

When dealing with the 1999 Bladet Tromsø and Stensaas v. Norway4556 case, the

judgment of the European Court dealt with published texts that criticized the technique of seal hunting on one ship. The Court established that it was neces-sary to carefully analyze the cases when measures or sanctions applied by one state can discourage the press in participating in discussions about the mat-ters of a legitimate public interest. The Court took into account the fact that newspapers ensured a fair reporting on the subject by publishing all points of view, including those of the seal hunters. Secondly, it took into account the fact that the goal of publishing these texts was not to accuse someone of anything, but to contribute to public debates. Thirdly, when establishing that journalists have to act in good faith, the newspaper was not obligated to verify the official report by independent research.

The Court concluded that the crew undoubtedly wanted to protect their interests and that this could not be stronger than a vital public interest in providing informative public debate about the questions of local, national and even international interest. The judgment of the Court emphasized the following:

However, it is important for the Court to realize whether in one specific case journal-ists acted in good faith with a goal to provide public with correct and reliable infor-mation in accordance with the code of ethics of journalists.46

57

Accordingly, if the Court established that the statements were partially untrue

44 Judgment of Sarajevo Cantonal Court No. P-163/03, 18 October 2004. 45 Tromsø and Stensaas v. Norway (21980/93), 20 May 1999, http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/2422ec00f1ace923c1256681002b47f1/887a2420f72746ebc1256783003c2213?OpenDocument (accessed 18 July 2011).46 Ibid.

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or that they were too harsh, but well-intended, it could be considered that con-ditions for liability for defamation were not fulfilled (naturally, if other condi-tions were fulfilled, such as following professional standards by the person who causes damage and especially if the expression referred to the issues related to private life of the damaged person or to the matters of public importance).

Related to this, journalists cannot be asked to verify the information to the same level as other persons, because in this way they would most often not be able to do their job well. It is important to understand this correctly, because it does not mean that it is not needed to make big efforts and to be professional when establishing the facts relevant for a disputable statement. It means that the level of verification of information does not have to be at the same level as in the case when these facts are established by state bodies in a procedure prescribed by law (e.g. police, prosecution or the inspection in charge).

This is also the opinion of the Supreme Court of Serbia, expressed in judgment No. Rev. 3139/2007 on 19 March 2008. The exposition of the judgment states:

It is enough to freely express and publish the information after it is verified that it is true in accordance with appropriate circumstances of the specific case, that is, in accordance with the attention of journalists. In this case, before publishing one article which contains the data about certain events and persons (plaintiffs), a journalist has verified the source of information so that Article 3 of the Law on Public Information is not violated. When writing an article, journalists respected the principle of “other side to be heard” so that she acted entirely with a due con-sideration (by conducting verification appropriate to given circumstances).

The judgment of the European Court of Human Rights related to the 1991 case of Sunday Times vs. United Kingdom47

58, (which will be mentioned later) stated that “news has an expiration date and if it is published with delay, even with a small delay, it can be deprived of every value and interest to a significant extent.” There-fore, journalists will often find themselves in the situation of publishing informa-tion even if they do not have enough time to verify it more thoroughly and to hear the version of the other side. Also, the abovementioned standards with bona fide will make it easier for journalists to determine whether a statement is defamatory in case it appears not to be entirely true.

VERIFICATION OF FACTS

A good example of the European Court concluding that journalists, that is, the persons liable for an expression, did not follow the standards of behavior that could make them excepted from liability is a newer judgment, the 209 case

47 Sunday Times v. United Kingdom (13166/87), 1991, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 18 July 2011).

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of Europapress Holding d.o.o. vs. Croatia4859. In this case, on February 2nd 1996,

‘Globus’ magazine published an article about the incident which allegedly hap-pened in the building of the Government of Croatia involving the minister of finances, vice-president of the Government and a journalist of daily newspaper ‘Novi list’. The article was published in column ‘Political terminator’ (Politički ter-minator) and reported on a conversation between the minister and the journal-ist on the stairs of the building when the minister said that the journalist should be killed because of an article she wrote before. According to the article, the minister then followed the journalist and allegedly took a gun from the security in press conference room and pointed it at the journalist, saying that he would kill her and then laughed at his own joke.

After the article was published, the minister started a civil lawsuit based on defamation against the applicant before the Municipal Court in Zagreb. He asked for a compensation of 500,000HRK for non-pecuniary damage. He claimed that the published information was not true and that it harmed his reputation as a public and political figure as the article was published in news-paper with a great circulation. Also, he claimed that this article portrayed him as an irresponsible and unreasonable person who made bad and distasteful jokes. On the other hand, the defendant insisted that the published informa-tion was true and well-founded since there were reasons for its veracity. The judgment of the Municipal Court partially confirmed the statement made by the plaintiff with an explanation that the “published information was false and that the applicant did not verify it properly,“49

60 and a compensation of 100,000 HRK was adjudged.

The County Court in Zagreb confirmed the judgment of first instance but low-ered the amount of the compensation to 60,000 HRK. During the procedure of revision of the judgment in the court of second instance, the Supreme Court of Croatia rejected the revision of the applicant and confirmed the reasons given in judgments of courts at lower level. Finally, the Constitutional Court of Croatia rejected the constitutional charges made by the applicant, and it established that there was no violation of its constitutional right to freedom of expression.

After this, in May 2006, the Europapress Holding d.o.o. company submitted an ap-peal to the European Court claiming that the judgments of domestic courts violated its right to freedom of expression. The judgment of the European Court stated the following:

The article was written in a manner leaving the reader in no doubt as to the truthful-ness of the published information and made no reference to its source. Therefore, it cannot be said that the Globus journalist who wrote it was merely reporting what

48 Supra note 10.49 Ibid.

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others had said and had simply omitted to distance himself from the information Rather, he adopted the offending allegations as his own, and the applicant com-pany which published them was therefore liable for their veracity. (...)

The Court observes at the outset that in the above civil proceedings for defamation the applicant company was given an opportunity to prove the veracity of the pub-lished information. Contrary to the applicant company’s claims concerning the as-sessment of evidence and the standard of proof used by the domestic courts in those proceedings, the Court considers that this task was not unreasonable or impossible in the circumstances. (...)

The Court notes on this point that neither in the domestic proceedings nor in the proceedings before the Court did the applicant company adduce any evidence in support of its claim that the Globus journalists attempted to contact B.Š.’s office. (...)

The Court reiterates that where particularly serious allegations have been made by one of the parties to a dispute, particular vigilance is called for. In such situations journalists, rather than automatically giving credence to such allegations, should ascertain whether they were true by obtaining further information and, if appropri-ate, by hearing the other side’s version of the facts. (...)

The Court is unable to follow the applicant company’s argument that awarding damages in the present case was disproportional to the legitimate aim pursued because there were a number of other less strict measures available to persons whose reputation had been tarnished by published information. Having regard to the margin of appreciation left to the Contracting States in such matters, the Court finds in the circumstances of the present case that the domestic courts were entitled to consider it necessary to restrict the exercise of the applicant company’s right to freedom of expression and that ordering it to pay damages met a “pressing social need”.

Finally, the European Court concluded that:

..the reasons given by the domestic courts in support of their decisions were “rele-vant and sufficient” and that the damages the applicant was forced to pay were not disproportional to the legitimate aim pursued. Therefore, the interference with the applicant company’s freedom of expression was “necessary in a democratic society”. There has accordingly been no violation of Article 10 of the Convention.50

61

This judgment shows that the European Court assesses whether journalists made adequate efforts to establish whether all published statements were true, nor did they make an effort to hear the version of the opposing side. This can be the principle for journalists to follow in similar situations.

50 Ibid.

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REPORTING ABOUT ONGOING COUR PROCEEDINGS

In the domain of reasonable stating or disseminating of a statement as the basis for making someone free of charges for defamation, a special question would be the one of how reasonable or justifiable can be to state an expression which rep-resents one person as a criminal. We are witnesses that every day in the media there are certain persons qualified as people committing criminal acts although it is obvious that those people were not convicted by the court in charge. This means that the presumption of innocence, one of the basic principles of the law, is not respected.

Regarding this issue, the Constitutional Court of Bosnia and Herzegovina, in case number AP 1289/0551

62, still adopted the appeal, but due to the violation of the right to fair trial and not due to the violation of the right to freedom of expression. It states the following:

this Court states that the principle of the presumption of innocence has to be re-spected in information provided by press, too, hence making statements such as these, while citing the freedom of expression and information, cannot be allowed.... regular courts assess that the applicants have crossed the allowed line when dealing with freedom of expression and the necessary tolerance of the plaintiff, that is, that the applicants expressed the facts which were not proven true as if they were true. The Constitutional Court considers that it cannot be concluded that regular courts crossed the line of the allowed discretion when it comes to the assessing whether the applicants committed the act of stating the facts which were not proven true.52

63

Therefore, the main rule is that, when making a statement, no one can be ac-cused of committing a criminal act in case they are not charged with an absolute criminal provision. This rule is certainly often violated and, theoretically, every such expression is defamatory and it succumbs to liability. However, there are some situations when such expression can be “reasonable” in the sense of the provisions of the Law on Protection against Defamation that regulates freedom from liability. These are, for example, the cases where there is a criminal proce-dure against the person at whom the statement is directed, meaning that there is a certain level of doubt whether this person is in fact liable.

This is how the Sarajevo Cantonal Court issued in case number P– 39/03 of Oc-tober 2004 an order stopping the legal proceedings in this legal matter, and it will be continued after the absolute criminal procedure against the first plaintiff ends. Namely, after the insight into the charges of the Zenica Cantonal Court,

51 «Pres-Sing» d.o.o. Sarajevo and Senad Avdić in Official Gazette of Bosnia and Herzegovi-na No. 60/05, http://www.ccbh.ba/bos/odluke/index.php?src=2 (accessed 8 December 2011).52 Ibid.

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the Court established that the charges made against the first plaintiff because of the criminal act of war crimes against civilians from Article 154, paragraph 1 KZ FB-H, and that it consisted of seven points. It listed the cases for which the first plaintiff was charged and which were related to war crimes committed against civilians.53

64 The ruling of the Court stated that “it is obvious that the decision on whether the statement of claim was well-founded and whether its amount was too large, regarding the first plaintiff cannot be made before the decision in the abovementioned criminal procedure.”54

65

Therefore, the Court stopped the procedure until the criminal procedure was over, when it was supposed to be clearly determined whether the expression accusing the plaintiff was in fact true. In that case, this would not be defama-tion. Such solution can be seen as appropriate, although, if we observe this in a strictly theoretical way, everyone is considered to be innocent until they are charged with absolute provision, even in an ongoing criminal procedure.

The idea behind such act is that many cases can reasonably qualify one per-son as a ‘’criminal“ if there is an ongoing criminal procedure, because the state organs in charge, that is, police and prosecution established a certain level of doubt that this person is liable for a criminal act. This can be applied particularly on expressions where individuals are treated as war criminals. Every day we are witnesses of such formulations appearing in the media, and, on several occa-sions, there were hot debates about who can and who cannot be called a war criminal. Whereas one side believes that it is atrocious to call someone a war criminal if this person was not convicted, the other side emphasizes that in that case not even Hitler can be treated as a war criminal and that no one can prevent them from calling the individuals these names (in our country, of course, these are most often Karadžić and Mladić).

If we apply the abovementioned opinion to this situation, we can conclude that, with regard to the people under charges before the International Criminal Tribu-nal for war crimes in former Yugoslavia or before some of the domestic courts (as well as the courts in the region), in case someone calls them “war criminals” (instead “people charged of war crimes”) this would not be theoretically legally correct, but it could be “reasonable” in given circumstances, especially in cases when these people are so called “justice escapees,” that is, if they are avoiding to come before the court which can confirm their possible innocence or guilt. Therefore, such cases could tolerate the exaggerated formulation of “war crimi-nal” (instead of the suspect for war crimes), when referring to the people which have not yet been convicted.

53 For more information see: Ruling of Sarajevo Cantonal Court No. P-39/03, 14 October 2004. 54 Ibid.

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Another important question is the way in which the media follow criminal pro-cedures. Article 6, paragraph 2 of the European Convention of Human Rights55

66 guarantees the right to the presumption of innocence within the right to fair trial. It primarily has to do with procedural law in relation to court authorities which defines the importance of evidence in criminal procedures. However, managing the legislature well requires the absence of even an indirect violation of the presumption of innocence by expressing one’s opinion or information in the media related to the ongoing criminal procedures.

With regard to the question of media following criminal procedures, on 10 July 2003, the Council of Europe adopted Recommendation number 1356

67, which points out the principles of this behavior, the most important of which are: public should be informed by the media about the activities of the court and the police, respecting the principle of presumption of innocence is the part of the right to a fair process, so that the opinions and information related to ongoing criminal procedures can be stated or disseminated in the media only if this does not violate the right of the defendant to be considered innocent until the judgment on his guilt is passed, and that the court and police should provide the media only with verified information and the information based on reasonable assumptions.

The case of Du Roy and Malaurie v. France5768 was related to the director and a jour-

nalist of a weekly magazine being sentenced after publishing an article referring to criminal charges and the demand of them being involved in the procedure as private persons. The European Court of Human Rights confirmed the principle that journalists cannot cross the lines set with the goal of a well-managed leg-islation, such as the special right of the defendant to the presumption of inno-cence. In this case, however, the challenged interference included the full pro-hibition of publishing any type of information from the criminal procedure. This is how, in this specific case, as the challenged article attacked French politicians and their behavior, the Court emphasized that there are other mechanisms of the protection of rights of people in question which do not make the absolute prohibition of publishing necessary. Therefore, it was established that the ac-cusation of the plaintiffs was not proportional to the intended goals and hence 55 The European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950), entered into force 3 September 1953.56 Council of Europe, Recommendation Rec(2003)13 of the Committee of Member States about reporting on criminal proceedings, adopted on 10 July 2003, http://www.ebu.ch/CMSimages/en/leg_ref_coe_r2003_13_criminal_proceedings_100703_tcm6-5020.pdf (accessed 18 July 2011).57 Du Roy v. France (34000/96), 2000, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 18 July 2011), and Court practice related to Article 10 of the European Convention on Human Right, available at: http://www.coe.int/t/dghl/standardsetting/media/doc/translations/serbian/CaseLaw_sb.pdf (accessed 8 December 2011).

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was opposing the Article 10 of the Convention. Hence, the European Court be-lieves that absolute and general prohibition of media reporting about criminal procedures is not necessary and that it would violate the right of the press to inform the public about the questions which could have the general interest even if they refer to criminal procedures.

SATIRICAL EXPRESSIONS

When a court makes a decision about whether making or disseminating a state-ment was reasonable and therefore decide whether there is no liability for defa-mation, it takes into account all the circumstances of the case, and especially the way, form and time of stating or disseminating the expression. Also, the court should decide on the type of article or program in which the expression was stated. This is how in practice there will be a difference when treating some investigative article or comment or when dealing with a humorous or ironical article. It often happens that the defendants are claiming that the article or the program was satirical and that the statements cannot be seen as factual, and that even a third person that is, the public, cannot take them seriously.

This is how in the case of the Sarajevo Cantonal Court case number P- 39/02 where the plaintiff H. B. sued ‘’W’’ and Č. E, the defendants claimed that the texts published in newspaper ‘’W’’ called ‘’Wanted’’, are not based on true facts or any other claims and that, instead, they are mocking one person, or they use satire and humor in relation with the behavior of this person as a public, cultural or political figure. However, the judgment of the Court was that the defendants should pay 5,000KM to the plaintiff, as the compensation for damage of harm-ing their reputation. The exposition of the judgment states:

this Court considers that there is a clear violation of privacy of the plaintiff found also in the practice of European Court of Human Rights which establishes that it is ‘unacceptable for someone to be exposed to a disgrace because of a member of their family’ and that ‘the punishment would be justifiable only because of this al-lusion’ (judgment De Haes and Gijsels vs. Belgium, on 24 February 1997).... When concluding this, the Court had in mind other factors, too, which had to be taken into consideration in a case like this so that its opinion is that the procedure established that the authors of the article did not mean well, nor did they take into account the principle of the protection of privacy of the plaintiff.58

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Deciding on the appeal to the abovementioned judgment, the Supreme Court of FB-H stated the following:

Namely, factual expressions as the part of defamation had to be serious in order

58 Judgment of Sarajevo Cantonal Court No. P-39/02, 8 November 2004.

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to make a third person believe that certain facts exist. However, a statement given as a joke has to have a clearly humorous tone which, in the opinion of this Court, did not occur in this specific case in the statements that contained defamation. In other words, that the plaintiff was a person who was doing drugs which could not be said for the second part of the sentence related to the first one.

The Court also mentioned that humorous sentences still:

…imply that the plaintiff is a drug addict and such statements, even though they rep-resent an insinuation, that is, a hidden defamatory statement, indirectly and logically contain defamation. This also refers to the statements with regard to other expressions, thus the humorous tone of the article in the specific case represents claiming some facts which, according to this Court, can harm the reputation of the plaintiff as a natural per-son who is a public figure with influence on the public while doing his job.... It is undis-putable that the article in question entirely represents a type of literature, that is, satire or humor, but it also contains the elements of defamation hence material law was correctly applied when the defendants were proven to be liable for defamation and when they were charged to pay the compensation for non-pecuniary damage.59

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The Constitutional Court of Bosnia and Herzegovina, in case No. AP 1423/05,6071

solving the appeal of «Pres-sing» d.o.o. Sarajevo and others, in the exposition of decision stated that:

the Constitutional Court cannot accept the statements of the applicants that this was a satire, as satire is a literary, that is, an art form which critically mocks an in-dividual, group, state or authority. This genre allows exaggeration and provocation but only if the facts are not incorrectly presented in the public.

In the specific case, the Constitutional Court considers that ”the expressions in question do not contain the elements of satirical or humorous criticism at the ex-pense of the plaintiff, but that they exclusively contain facts which were not verified by the defendants by making reasonable efforts, because, as they said ‘there was not enough time’ and for which they could not provide any evidence in the proce-dure before the Court.”61

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The European Court of Human Rights mainly protects offensive, hyperbolic and satirical expressions. However, no matter if the article or the show is satirical, in the case some claims can be seen as factual statements and if they cause dam-age to the reputation of one person, the nature of the article or the show cannot fully, per se, exclude the liability for this defamation.

59 Judgment of the Supreme Court of FBiH No. GŽ – 21/05, 12 April 2005. 60 «Pres-sing» d.o.o. Sarajevo et al. in Official Gazette of B-H No. 60/05, http://www.ccbh.ba/bos/odluke/index.php?src=2 (accessed 8 December 2011).61 Ibid.

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TEMPORARY MEASURES

Article 10, paragraph 3 of the Law on Protection against Defamation of FB-H621

Preliminary court orders to prohibit disseminating or further disseminating of an expression of false fact may only be issued where publication has already occurred and the allegedly injured person can make probable with virtual certainty that the expression caused harm to his or her reputation and that the allegedly injured per-son will suffer irreparable harm as a result of further dissemination of the expres-sion. Permanent court orders to prohibit the dissemination or further dissemination of an expression of false fact may only be applied to the specific expression found to be defamatory and to the specific person found to be responsible for the making or dissemination of the expression.

The law of RS almost identically regulates the conditions of determining tempo-rary measures in Article 11, paragraph 3.63

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A few years ago, the media paid special attention to the case in which the Sara-jevo Cantonal Court brought a temporary measure of prohibition of stating false facts about a public figure. In this case, it was a politician and the measure was directed at daily newspaper Dnevni avaz. At the same time, one weekly newspa-per was prohibited from expressing false facts about the owner of ‘Dnevni avaz’. This measure triggered off numerous debates and it was characterized as the attack on the freedom of the press. The measures were seen as an absolute pro-hibition from writing about certain people although they clearly contained that only false statements underwent these sanctions.

To our knowledge, after these temporary measures, there were no other mea-sures of that kind before domestic courts. Entity laws regulate this issue in a rather unusual way. They prescribe that the temporary court measure on the prohibition of stating or disseminating false expressions can be imposed only if the injured person can certainly prove that this statement caused irrepairable damage. The question which arises is the one of the purpose of temporary mea-sure, as the provisions of this law do not allow in any case expressing false facts which could cause damage to other persons. Therefore, even if such measure of the prohibition of publishing were brought, it would not make much sense.

The European Court does not find these limitations or even temporary prohibi-tion of publishing the information per se incompatible with the right to freedom of expression. In the opinion of the Court, these limitations are allowed only in the rare cases where there is an urgent social need for such limitations, for example, in cases of preventing riots or crimes or the protection of the security of one state. Because of the potential danger for freedom of expression, these 62 Supra note 1, Article 10, paragraph 3.63 Supra note 2, Article 11, paragraph 3.

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limitations have to be treated extremely carefully.

The European Court of Human Rights treated the measure of the prohibition of pub-lishing in the case of Sunday Times vs. the United Kingdom64

3 in 1991. The case was about the court prohibition based on the state law at the time which referred to disrespecting the court, publishing the announced article in newspapers which had to do with medicine ‘’thalidomid’’, used as a sedative during 1961 by some pregnant women and which turned out to be harmful for their babies. At that time, there was an ongoing procedure for compensation for damage against the producer of the medicine and the Sunday Times, just as all other media, reported about these pro-cedures. In one article, another article was announced at the end and this second ar-ticle was supposed to explain how the tragedy occurred and explore the behavior of pharmaceutical company. The state prosecutor asked for, and the court confirmed, the prohibition of publishing the announced article. The prohibition was issued on the basis of the Law on disrespecting the court in order to prevent allegedly ille-gal influence on court procedures. The prohibition was valid until the agreement of the parties. The European Court established that the reasons for preventing the applicants are insufficient according to Article 10, paragraph 2. This prohibition was disproportional to the set legitimate goal and it was unnecessary in a democratic society. The judgment of the European Court stated the following:

Previous limitations have inherent jeopardizes which require the most thorough ex-amination by the Court. This is especially related to the press as news has an expira-tion date and if it is published with delay, even with a small delay, it can be deprived of every value and interest to a significant extent.65

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On the other hand, regarding the case of Markt intern, the Court supported the prohibition preventing one magazine from publishing the information about the company on the market. Even though the case was concerned with an in-terference into commercial advertising, the opinion of the Court was that: “… even when publishing texts which are true and which describe actual events, under certain circumstances there can be prohibited: obligation to respect the privacy of the others or the obligation of respecting the confidentiality of certain commercial information, as they are precisely such examples.”

URGENCY OF ACTION IN PROCEEEDINGS RELATED TO DEFAMATION

Article 14 of the Law on Protection against Defamation of FB-H665 stipulates that

procedures related to charges of the compensation for damage due to defama-

64 Supra note 47.65 Ibid.66 Supra note 1.

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tion that occurred in mass media are considered urgent. Also, courts ought to act according to the charges for compensation of damage caused by defama-tion in mass media within thirty days since the charges were submitted to the court in charge. The intention was to make court protection faster, having in mind the importance of a harmed object, that is, honor and reputation of one person. There is no such provision in the Law of Republika Srpska.

There is the question whether cases of this kind are supposed to have the prior-ity when making decisions because many people emphasize that, in the situa-tion when the courts are flooded with various cases, many of which have the existential importance for citizens, the protection against defamation should not be the priority. However, there are some opinions that having courts decide in these procedures after a long time makes no sense, as certain defamatory information can be forgotten and, if the judgment of the court comes late, then it is not efficient and it does not diminish the consequences of the violation of the person’s reputation. It would certainly be good if these cases were solved quickly, just as all the others, but in the situation where domestic legislation is running late with solving disputes, this is very hard to expect.

DIMINISHING DAMAGE

Article 8, Law on Protection against Defamation of FB-H:

Injured person shall undertake all necessary measures to mitigate any harm caused by the expression of false fact and in particular requesting a correction of that ex-pression from the person who allegedly caused the harm.67

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Article 8 of the Law on Protection against Defamation of RS also states that the injured person should try to diminish the damage caused by false expressions, but it does not prescribe that the injured person is ‘obligated’ but that “he/she should take all necessary measures”.68

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Such obligation of the injured person is one of the principles generally applied in other types of damage compensation. The Law especially emphasizes that there should be a request for retraction [bolding by author], as a measure tak-en by the injured person in order to diminish the damage (although it is not completely clear which other efficient measures the injured persons have at their disposal).

So far, the legislative application of the Law on Protection against Defamation came across the disputable application of the abovementioned law, according

67 Supra note 1.68 Ibid.

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to legal theory. It is unclear whether the submission of the request for retraction is a presumption for making charges due to damage compensation (e.g. as it is in Croatia) or whether it is only a possibility at plaintiff’s disposal.

In court practice, in some cases, courts accepted the requests for damage com-pensation even if there was not a request for retraction, but, in such judgments, the amount of compensation was smaller than it could have been in case there had been such request. Of course, there is also the opinion that charges cannot be made if such request is made, hence these charges are to be repudiated. This dilemma is the result of a legal provision that is not precise enough, especially in the Law of the Federation, due to the term ‘obligated’ that can be seen as an mandatory act on which the charges depend.

PUBLISHING THE JUDGMENT

Also, there is the question of application and provision of Article 199 of the Law on Obligatory Relations.69

8 This Law prescribes that, in case the right of a personal-ity is violated, the court can order the person who caused damage to pay for the publishing of the judgment or correction. This person may also be obligated to take back the statement which caused damage or to do something else which could be equal to the purpose of compensation.

This is how the judgment No. 131/03 from November 22nd 2004 of the Sarajevo Cantonal Court obligated the defendant to publish the judgment and the expo-sition. The judgment stated the following:

The Court decided not to publish the entire judgment but just the introduction and the statement. Publishing the introduction and the statement will, according to this Court, achieve the purpose of compensation to the plaintiff whereas publishing the entire judgment, having in mind its volume does not fulfill the purpose and it is not necessary.70

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This exposition shows the tendency of the Court to achieve the satisfaction of the person injured due to non-pecuniary damage by negating the disputable expression and not primarily by adjudging a bigger fine.

It is important to mention that lately there has been an increase of the num-ber of statements of claim where plaintiffs require only a symbolical amount (e.g.1KM) and the publishing of the judgment and a retraction in liable media, showing that people truly want to protect their honor and reputation, and not to get a big amount of money.

69 Supra note 14.70 Judgment of Sarajevo Cantonal Court, No. 131/03, 22 November 2004.

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Also, it is possible to make defendants obligated to publish the judgment in an-other media at their own expense, and the court practice has already seen sever-al such cases. In a judgment of the Sarajevo Cantonal Court, the first and the sec-ond defendant (‘Sarajevska pivara’ and Hilmo Selimović) were obligated to pay for and ensure that the introduction and statement of this judgment are pub-lished after it came into effect in the next edition of newspapers: Oslobođenje, Dani, San and Dnevni avaz. The exposition of the judgment states:

The opinion of the Court is that the defendants are ordered to publish the introduc-tion and the statement of the judgment in mass media, which in this case represent a third person, that is, they are not included in the procedure. Namely, Article 199 of the Law on Obligatory Relations states that in case there is a violation of the right of a person, courts can order publishing the judgment at the expense of defendant which can achieve the purpose of compensation.’71

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PUBLISHING A CORRECTION

Court practice claims that publishing a correction has to be taken into account when determining the amount of non-pecuniary damage, because in case a correction is published, the amount of damage will be smaller because it was in a way diminished [bolding by author]. If there is no correction, then the amount will be bigger as the defendant is clearly not acting with bona fide and that he is not willing to diminish the damage. Also, in case there is no request for correction, this should be taken into account when determining the amount of damage and make this amount smaller because the plaintiff did not do every-thing in order to lessen the damage, as obligated by the law.

One of the first judgments made based on the Law on Protection against Defamation of FB-H72

2 was case No. P-127/03. When deciding on the amount of damage, the Sarajevo Cantonal Court took into account that the request for re-traction was not published in the media that published the disputable expres-sion. The exposition stated that “during the procedure, the Court had the access to the written request of the plaintiff made on 16 June 2003 and the Court established that the plaintiff was addressing the second defendant and that he asked him to print a retraction and an apology, and he also asked his response to be included in newspaper ‘Express’ in order to inform the public correctly.... After there was a confir-mation from the post office in Sarajevo that the statement of claim was received by the defendants, it was clear that this response had not been published.”

The judgment of the Supreme Court of Croatia No.Rev-1261/97 is a good ex-ample of courts taking into account the fact that the defendant published a re-

71 Judgment of Sarajevo Cantonal Court, No. P: 169/03, April 2004. 72 Supra note 1.

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traction of false information when the Court was deciding on the amount of damage. The exposition stated:

The courts at lower levels determined the duration and the amount of emotional distress suffered by the plaintiff as his honor has been harmed and the fact that the defendant did not prove the circumstances making him free from liability for dam-age, and they also took into account the circulation of Novi List which published the disputable article.

When deciding on the amount of damage, courts at lower levels took into account the fact that the defendant published a retraction but that this still does not make damage disappear.

Unfortunately, in our country it often happens that the media that received the request for retraction would publish it in a way that only causes more damage to the injured person, that is, they use this request for new def-amation and offense. Of course, this is unacceptable and, in such cases, courts should sanction this behavior by making the compensation for dam-age bigger. As an example, in the case No.P79-04 of the Sarajevo Cantonal Court damages could not be diminished because the apology of defen-dants was insincere and accompanied by ironic comments in the request for retraction:

We’re sorry, Mile Stojić! If you need any more details, we will continue: Mile, we’re sorry we published a caricature of you as a Dracula, we’re sorry we tried to present you as a natzy, a Bosniak-hater, a favorite of Franjo Tuđman, we apologize for insult-ing you and your physical appearance and health condition. There, this is what the lawyer asked us to do. If Mile Stojić feels better after we apologized, we will be happy to see that we did a good deed.

LIABILITY FOR INSULT

According to one of the definition, “insult” is a statement or behavior expressing a snub or disrespect of another person. A more severe form of an insult would be a so-called ‘public insult’, that is, an insult published in the media or available to a greater number of third persons. Liability for insult was in the past also stipu-lated by criminal laws in B-H, and the judgment in criminal procedures made courts obligated to adjudge compensation in the forms stipulated by the Law on Obligatory Relations, with a note that criminal procedures for an insult were started by private charges.

Both entity Laws on Protection against Defamation stipulate that this law is lex specialis in relation to all other laws. For everything not regulated by these laws, what will be applied are the provisions of the Law on Obligatory Relations, Law

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on Executive Procedure and Law on Legal Proceedings which are in force in Re-publika Srpska and the Federation of B-H. The Law on Obligatory Relations does not make any difference between “insult” and “defamation.” Instead, Article 200 stipulates compensation for non-pecuniary damage in cases of harming one’s reputation and honor.

In court practice, what appeared was the question of whether there is a ba-sis for a demand for the compensation for damage according to the Law on Protection against Defamation when the procedure establishes that there is no defamation in that specific case, but if it establishes that there is a state-ment that represents an insult causing non-pecuniary damage. In some cas-es, courts would refuse the statement of claim if they established that there was only an insult. However, according to the rules of legal proceedings, the court is not bound by the legal qualification of a statement of claim so that there are no formal legal obstacles to pass the sentence of compensation for damage if insult is committed in line with relevant provisions of the Law on Obligatory Relations.

This was also the opinion of the Constitutional Court of B-H in case No. AP 1064/05, where the court repudiated the non-based appeal of one publisher, the editor in chief of one weekly newspaper, who published a degrading and in-sulting text about one public figure. The appeal challenged the charges of regu-lar courts that obligated the applicants to paying compensation for defamation. The Constitutional Court concluded that:

it considers that even if the existence of a legitimate goal can be accepted, when it comes to the essence of the disputable text, as it was about a matter impor-tant for the public, and considering the nature of the disputable expression, the plaintiff was not obligated to demand its retraction. Also, in the proceedings, applicants did not show any willingness to apologize to the plaintiff, hence they have to be considered responsible for an insulting expression about the plaintiff. Namely, in this specific case, the general interest which allows questions to be raised regarding the tragedy of the worker of «Žitoprerada» from Bihać, cannot use snubbing the plaintiff as a defense, nor can it use disrespect and humilia-tion of her dignity which attacks and harms her honor and reputation which caused her emotional distress that she is not obligated to tolerate no matter which position she occupied in the Municipality Court. According to the medi-cal documents enclosed, regular courts established that after the text in which applicants insulted her was published, the plaintiff suffered emotional distress because her reputation and honor were violated, and that she was treated for psychological problems for a period of time....However, even though the Law on Protection against Defamation does not stipulate the possibility of a legal liabil-ity for an insult, as it supports ‘the right to expression (...) which can insult, shock or disturb’ (...) this does not mean that it supports unprofessional conduct. The

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possibility of legal liability for insult still exists. Namely, the Law on Obligatory Relations stipulates that for emotional distress suffered because of the violation of reputation and honor, the court can pass the sentence of a fair compensation for non-pecuniary damage, if it considers that the circumstances of the case jus-tify this...Having in mind the abovementioned, with challenged charges and ac-cording to the principle of proportionality, the balance was established between the freedom of media and the right of protection of honor and reputation of the plaintiff. Also, considering all the circumstances of this case, by challenging judgments, the courts decided that there is ‘an urgent social need’ requiring a concrete boundaries in the realization of freedom of expression. Constitutional Court does not consider that it can be concluded that regular courts crossed the allowed degree of discretion of the court. On the basis of the abovementioned, the Constitutional Court concludes that there is no violation of the right to free-dom of expression in Article 2/3.h) of the Constitution of Bosnia and Herzegovi-na and Article 10 of the Convention.73

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INSULT WITH A NATIONAL LABEL

With regard to the treatment of insult in the light of Article 10 of the Convention, the judgment U-39/01 of the Constitutional Court of B-H is also interesting, although this specific case does not contain a statement published in the media. Namely, in this case, Mr. M.H. from Tuzla made an appeal to the Constitutional Court of Bosnia and Herzegovina against the judgment of the Supreme Court of the Federation of Bosnia and Herzegovina No. Rev.45/01. The applicant was a worker in a Thermo-electric power plant in Tuzla. On October 3rd 1995, the Disciplinary Committee of the enterprise made a decision in which, as a disciplinary measure, his working position was taken away from him because of a serious violation of working obligations. Allegedly, he insulted a colleague of his by writing the following in the transfer book “Ustasha!! In the future, don’t fill the bottles with ink on boilers 3 and 4, and clean the tables when you’re done and take this as a warning!”

The Disciplinary Committee assessed that such conduct disturbed the rela-tions among people and among nations in the enterprise and it made a deci-sion to dismiss M.H. Court decisions that followed, confirmed the decision of Disciplinary Committee. In the decision that repudiated the appeal, Constitu-tional Court states:

Applicant states that the courts did not take into account the specific circumstanc-es in Bosnia and Herzegovina and in the Enterprise at the time of the alleged insult 73 Decision on merits, applicant: “Press-sing” d.o.o. Sarajevo and Senad Avdić” (AP 1064/05), 14 March 2006, http://www.ccbh.ba/bos/odluke/index.php?src=2# (ac-cessed 8 May 2012).

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or threat, nor did they take into account its specific nature. The applicant does not negate writing the word or phrase in the transfer book as it was mentioned, but he claims that these expressions were not serious as such expressions at that time were even ‘officially used’ or ‘they could be heard in the media.’ In the specific case, the application of Article 10 of the Convention is questionable for two reasons. Namely, on one hand, it has to be explained whether this fundamental freedom is applicable to the relations between the employer and the applicant or not. On the other hand, there are doubts about whether the violation of freedom of ex-pression in the sense of Article 10 of the Convention even occurred...., ....there are doubts whether the applicants insults are covered by Article 10 of the Convention as it is stated in the quote from the subject of Handyside against Great Britain. There was not an intention of the applicant to express his opinion when writing those words in the transfer book and hence he did not intend to contribute to a certain dispute or to make an influence on someone’s opinion of their colleague. Also, he did not have an intention of offering the information about his colleague. Word ‘Ustasha’ was a clear insult which could be replaced with any other insulting expression without any political implication. These words were only for his col-league. The opinion of the Court is that in such circumstances it was not necessary for the Supreme Court to take into account any implications of Article 10 of the Convention in this specific case. Therefore, the judgment of the Supreme Court did not violate the applicant’s freedom of expression’.74

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The condition for an insult not representing an arbitrary personal attack not to be punished is a standard practice of the European Court of Human Rights which considers that there cannot be an arbitrary personal attack when the author of the statement does not give an objective explanation, that is, when this was a response which was justifiably provoked by the former expression or conduct of the plaintiff. This is why, in the famous decision on Oberschlick No.2 against Austria in 1997, the Court emphasized: “The applicant’s words (idiot) could be considered polemical, but did not on that account constitute a gratuitous personal attack as he had provided an objectively understandable explanation, derived from the speech of the politician concerned this word did not seem disproportional to indignation knowingly aroused by the politician concerned.”75

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Therefore, when an expression is an insult and not defamation, and when this defamation causes damage to one person, that is, if his/her reputation is harmed thus causing emotional distress (it is difficult to imagine a situation where the insulted person suffered pecuniary damage), the compensation in B-H is real-

74 Appeal, applicant: M.H. (Constitutional Court of B-H: U-39/01), 6 April 2002, http://www.ccbh.ba/bos/odluke/povuci_pdf.php?pid=22803 (accessed 8 May 2012).75 Oberschlick v. Austria (no. 2) (47/1996/666/852), 1 July 1997, http://www.hrcr.org/safrica/expression/oberschlick_austria.html (accessed 30 May 2011).

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ized in legal proceedings before the court in charge. But this does not happen on the basis of the Law on Protection against Defamation, but on the basis of the provisions of the Law on Obligatory Relations.

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BASIC CONCLUSIONS ABOUT THE TREATMENT OF DEFAMATION BEFORE COUR TS IN B -H

Mehmed Halilović and Mladen Srdić

In conclusion, the Law on Protection against Defamation, and its application in B-H, has strengthened rights to both freedom of expression and freedom of media. Court practices on defamation are particularly strong in respect to the following:

1. Court practice protects the principle of freedom of expression;

2. Generally, courts follow the practice of the European Court;

3. Compensations for non-pecuniary damage typically involve relatively small amounts of money;

4. When passing judgments, courts do not quote only European Convention and decisions of the Constitutional Court of B-H, but also the Press Code of B-H, which serves as the basis for assessing professional conduct of journal-istrs and editors.

On the other hand, persisting shortcomings in the application and interpreta-tion of the Law on Protection against Defamation include:

1. A slow process in solving civil claims regarding defamation, despite legal stipulations that such cases be solved urgently;

2. Inconsistent use of experts by different courts in determining proof of emo-tional distress.

3. Inconsistent interpretation of provisions by courts, especially in cases that must determine passive legitimation (i.e. who authored the expressed in-formation).

RECOMMENDATIONS TO JOURNALISTS AND EDITORS

It is a general rule that disseminating someone else’s statements does not make a person doing so free from liability (of course, when there is an expression with elements of defamation or insult). In order to lessen the possibility of such liabil-ity, when disseminating someone else’s statement, the following rules resulting from the practice of the European Court and domestic courts should be obeyed:

• Disseminated information should be correctly quoted;

• Information must be disseminated with an appropriate amount of carefulness

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meaning that it should be verified and that non-critical dissemination should be avoided;

• If possible, the party to which disputable expression refers should have a chance to comment and react on it;

• It should be clearly stated that the information was taken over from another source and not from the media publishing it;

• Attention should be paid to the type of the source from which the media disseminate expressions (it is natural that there should be less doubt in the veracity of information published by, e.g. ‘New York Times’, than in the verac-ity of something published by so called ‘yellow pages’);

• When disseminating, it is not always necessary to make a formal distance from the content of quotes which can offense or provoke the others or which can harm their reputation, but if there is a doubt in the veracity of these citations then a certain kind of caution and distance when dissemi-nating citations can be helpful for journalists or media if it possibly comes to establishing the liability for defamation.

In order to avoid charges of defamation, the media should apply a test easily used by every journalist and editor:

• Have I done everything I could in order to hear the other side of the story, too?

• Are there elements of insult or defamation in my article/report?

• If there are, can I defend every sentence which violates someone’s reputa-tion?

It the answer to questions one and three is ‘yes,’ then the story should be pub-lished.

If the answer is ‘no’- do not give up. Add missing arguments and elements to the story.

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Chapter 6

MEDIA AND JUDICIAL SYSTEM OF B-H

CASES INVOLVING MEDIA IN B-H: MECHANISMS OF PROTECTIONAND PROCEDURE

Sevima Sali-Terzić

CASES RELATED TO THE LAW ON PROTECTION AGAINST DEFAMATION

There is no single branch of Government in Bosnia and Herzegovina. Instead, in line with constitutional and legal order, judicature is regulated at three lev-els of rule: the Federation of Bosnia and Herzegovina (FB-H), Republika Srpska (RS) and Brčko District of Bosnia and Herzegovina (BD). In line with this, each administrative-territorial unit has the authority to regulate the organization and the authorizations of court (actual and local), and to arrange procedural rules in civil, criminal, and administrative disputes.

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SUPREME COURT OF FBiHThe authorization of second instance in relation to the desisions of cantonal courts when deciding on thr first instance. Decides on emergency legal rem-edies against court decisions that enter into force.

10 cantonal courtsAuthorization of first instance in administrative affairs; authorization of first instance in criminal

affairs prescribed by law. The authorization of sec-ond instance in relation to decisions of municipal

courts (decidingon complaints)

28 municipality courtsAuthorization of first instance in civic disputes; authorization of first instance in criminal affairs

when it is prescribed by law: extrajudicial proce-dures; executive procedures; offence procedures;

land register administration; other

Graph 1: Schematic overview of organization and jurisdiction of courts in FB-H B-H

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SUPREME COURT OF RSJurisdiction of second instance in relation to

decisions of district courts when deciding on first instance. Decides on exceptional legal remedies

for final court decisions.

19 BASIC COURTSJurisdiction of first instance in civil disputes; jurisdiction of first instance in criminal affairs

when it is prescribed by law; uncontested proceedings; offence proceedings; executive

proceeding; land register administration; other

Commercial District Court

Jurisdiction of first instance

in commercial disputes

High Commercial Court

Jurisdiction of second instance in relation

to the decisions of first instance of

commercial courts

5 DISTRICT COURTSJurisdiction of first instance in administra-

tive disputes; jurisdiction of first instance in criminal affairs, prescribed by law. Jurisdiction of second instance in relation to decisions of municipal courts (deciding on complaints).

Court of Appeal of BDB-HJurisdiction of second instance in relation to

decisions of the Basic Court of B-H. Decides on exceptional legal remedies against final court

decisions

Basic Court of BDB-HJurisdiction of first instance in all disputes including offence proceedings; executive

proceeding; other

Graph 2: Schematic overview of organization and jurisdiction of courts in RS

Graph 3: Schematic overview of organization and jurisdiction of courts in BDB-H

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FILING LAWSUITS AND APPEALS AGAINST DECISIONS OF FIRST INSTANCE

In line with constitutional and legal jurisdiction of entities and BD, three laws on protection against defamation have been passed and applied.1 This is how defamation became decriminalized in B-H, as these laws arrange civil liabil-ity for damage caused to the reputation of private or legal person. Therefore, court protection based on these laws is realized in legal proceedings before courts that have jurisdiction. According to the laws on protection against defa-mation in RS and BD B-H, jurisdiction over these cases in first instance belongs to basic courts, whereas district courts in RS and the Court of Appeal, as courts of second instance, decide on complaints. In FB-H, courts of first instance with jurisdiction were cantonal courts, whereas the Supreme Court of FB-H had the jurisdiction of second instance over appeals. However, as the Law on Protec-tion against Defamation in FB-H was amended in 2005, the jurisdiction of first instance regarding deciding on lawsuits was transferred to municipal courts, whereas cantonal courts became courts of second instance, deciding on ap-peals. This means that today, in B-H, regardless of the fact that the jurisdiction related to regulating laws on protection against defamation and organizing court system is divided into three administrative-territorial units within B-H, procedural protection still works in the same way: in the first instance, defa-mation claims come before municipal or basic courts, and appeals belong to courts of second instance: cantonal courts in FB-H, district court in RS and the Court of Appeal in BD.

DEADLINES FOR ASSERTING DEFAMATION CLAIM

Laws on protection against defamation prescribe deadlines for filing lawsuits in a unique way. According to all three laws, lawsuit can be filed within three months starting from the day when injured person finds out or should find out about defamation and the person who caused damage; this deadline must be respected and cannot be extended after one year from the day when “this ex-pression was stated to a third person” expires. Therefore, subjective deadline of asking for compensation is three months and objective deadline is one year. If these deadlines are not respected, the right for court protection is lost, mean-ing that deadlines are preclusive and that the right to protection is lost after they expire. The three laws also state that there is an urgency of procedures for

1 Law on Protection against Defamation of FB-H (Sarajevo, 2002), Official Gazette of FB-H No. 19/03 and 73/05, entered into force in 2002; Law on Protection against Defamation of RS (Banja Luka, July 2001), Official Gazette of RS No. 37/01, entered into force on 1 August 2001; Law on Protection against Defamation of Brcko District of Bosnia and Her-zegovina (Brcko, 2003), Official Gazette of Brcko District of B-H, No. 14/03, entered into force in 2003.

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compensation based on lawsuits for defamation expressed in mass media, thus courts must act within 30 days starting from the day of receiving the lawsuit. In case courts do not respect these deadlines, the parties do not have at their dis-posal a legal remedy that could influence these disputes to actually be solved as soon as possible. In this case, not even an appeal to the Constitutional Court due to violation of right to trial can help, because the fact that courts sometimes do not respect legally prescribed deadlines for urgent actions in these disputes will not suffice for establishing the violation of the right to trial within a reasonable period of time in the sense of Article 6, paragraph 1 of the Convention.

USING REVISION AS AN EXCEPTIONAL LEGAL REMEDY

Beside the actual jurisdiction of courts, deadlines for asking protection, and some general principles which courts must respect when deciding on compen-sation (so as not to adjudge too high compensations and put the right to free-dom of expression in jeopardy), laws on protection against defamation transfer all issues they do not regulate to adequate laws on obligatory relations, laws on litigatory procedures and laws on executive procedures. Considering the appli-cation of relevant Law on Legal Proceedings, the protection against defamation can under certain circumstances mean the possibility of using exceptional legal remedy, which is included under the jurisdiction of the Supreme Court of RS or FB-H, that is, of the Court of Appeal of BD at the third level.

Generally, revision against a judgment is exceptional, independent, de-volving, non-suspensive, limited and a two-fold legal remedy that can be used against the final judgment of the court of second instance based on the appeal related to the judgment of the court of first instance. This oc-curs exclusively due to substantial violations in legal proceedings or due to the incorrect application of material rights, but not because of incorrect or incomplete facts. This legal remedy provides parties with a right to contest a suit but it does not mean that all final judgments can be attacked for any irregularity. Otherwise the institute of coming into effect would lose its legal value, and the preservation of the principle of economical proceeding and legal security would be brought into question. Therefore, procedural laws limit the conditions, which allow revision by prescribing strict, preclusive deadlines, census and reasons for revision. However, the goal of revision pri-marily involves the court of revision’s influence in forming unified stances of courts by taking the same stance regarding the same legal issue. Therefore, although census remained a general rule for allowing revision, new laws in B-H prescribe that revision is allowed also in cases when, according to the as-sessment of the court of revision, “deciding on revision would be important

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for the application of rights in other cases.”21

However, it is only possible to use such remedy when all conditions stipulated by adequate Law on Legal Proceedings are fulfilled. Namely, the revision against the decision of second instance is allowed only in cases when the value of con-tested part of final decision is not higher than 10,000 KM in FB-H and RS, or 30,000 in BD.3

2 This means that the value of the dispute claimed by plaintiffs in their lawsuits is not important when discussing whether revision is allowed or not (in such disputes it is mainly the amount of compensation); instead, this de-pends on the part of final decision contested by the revision.43 However, laws on legal procedures in FB-H and RS state that the Supreme Court can, in excep-tional cases, allow revision in all cases, if it determines that deciding on revision would be important for the application of rights in other cases.

The importance of such provision lies in the fact that courts can assess the subject of the dispute which does not cross prescribed census and which can influence court practice hence it can be significant for adopting certain legal understanding important for a unique application of law. This provision is cre-ated in a way that leaves wide discretion for the court of revision in relation to the question of whether it is a legal issue that could be considered by the court conducting revision, regardless of the prescribed census. Still, this provi-sion leaves a possibility for parties to use such remedy even when there is no prescribed census serving as a condition for claiming revision. In this case, the revision should include reasons why one party believes that there are reasons for considering revision on this basis, which does not obligate the court to

2 See more: Modul 4: Field of Civil Law – exceptional legal remedies, VSTV, CEST FB-H and CEST RS, January 2006, available at: http://www.fbih.cest.gov.ba/index.php?option=com_docman&ltemid=30&task=view_category&catid=26 (accessed 21 January 2012).3 Article 237. par. 2. Of the Law on Legal Proceedings of FB-H (Sarajevo, 2003), Official Ga-zette of FB-H 53/03, entered into force 28 October 2003, http://www.advokathrvacic.com.ba/dokumentacija/zpp.pdf (accessed 9 March 2012); see also:Official Gazette of FB-H No.73/05 and 19/06.And Law on Legal Proceedings of RS (Banjaluka, 2003), Official Gazette of RS 58/03, en-tered into force 1 August 2003; and Official Gazette of RS 85/03, 74/05 and 63/07, http://www.advokatprnjavorac.com/zakoni/Zakon_o_parnicnom_postupku_RS_Integral.pdf (accessed 9 March 2012). And Article 310. par. 2 and 3 of the Law on Le-gal Proceedings of BDB-H: Integral text, Official Gazette of BDB-H j 5/00, entered into force in 2000, http://www.hjpc.ba/dc/pdf/zpp-%20precisceni%20tekst%2008%2012%202005.pdf (accessed 9 March 2012); see also Official Gazette of BDB-H 1/01 and 6/02.4 For example, if the plaintif asked for 10,100KM as compensation before courts in FB-H or RS, and the judgment stated that there would be only 3000KM of compensation, then the value of disputable part would be 7100 and revision would not be allowed. On the other hand, if the statement of claim is repudiated completely, then revision is allowed.

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accept these reasons nor to consider them to detail in case it decides to reject the revision if the value of contested part of the judgment is not higher than the prescribed amount.

SUBMITTING APPEAL TO THE CONSTITUTIONAL COURT OF BOSNIA AND HERZEGOVINA

If there is a final decision for which there are no other legal remedies, appeal can be submitted to the Constitutional Court of B-H based on the violation of human rights granted by the Constitution of B-H and the European Convention. In most cases, the final decision on defamation claims is the decision of the court of second instance (cantonal, district or the Court of Appeal of BD). In case a revision against the decision of second instance is possible, if it fulfills the condi-tions stipulated by the Law on Legal Proceedings regarding prescribed census (so, if the value of contested part of final judgment is more than 10,000KM) then it is first necessary to use this legal remedy since the Constitutional Court of B-H considers revision an efficient legal remedy; otherwise, the appeal will be rejected because not all possible legal remedies have been used.5

4 Therefore, in such case, the appeal can be submitted only against the decision of revision court, as this would be the final decision. Also, in order to consider the appeal with merits, the appeal must fulfill other formal conditions stipulated by Article 16 of the Rule of the Constitutional Court of B-H.65

APPEAL TO THE EUROPEAN COURT OF HUMAN RIGHTS

Against final decisions for which there are no legal remedies in domestic legal system, there can be an appeal before the European Court of Human Rights (the European Court) and it has to be made within six months starting from the day when the final decision was received. Normally, the European Court considers the Constitutional Court of B-H an efficient legal remedy for the protection of human rights at domestic level. This makes asking for protection before the Eu-ropean Court only possible when the attempt of getting protection before the Constitutional Court of B-H is exhausted.

5 See: Decision of the Constitutional Court of B-H on permission (AP 3932/11), 9 November 2011, http://www.ustavnisud.ba/bos/odluke/povuci_html.php?pr=&pid=387270(accessed 9 March 2012).6 Rules of the Constitutional Court of B-H, Official Gazette of B-H 60/05, 64/08 and 51/09, available at: http://www.ustavnisud.ba/bos/p_stream.php?kat=83&pkat=84 (ac-cessed 9 March 2012).

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MEDIA DISPUTES RELATED TO THE APPLICATION OF THE COMMUNICATION LAW

The Communication Law regulates the field of communications in B-H, field that include telecommunications, radio, broadcasting (cable television, too), and other related services and tools.76 What is important for the work of media is that this law contains the provisions related to issuing licenses for broadcasters and opera-tors of telecommunications and monitoring respecting the conditions of licenses through the Communications Regulatory Agency (the CRA).87 Considering the

7 Communication Law (Sarajevo, 2 September 2003), Official Gazette of B-H No. 31/03, entered into force on 21 October 2003; Law on Amendments of Communication Law (Sarajevo, 29 August 2006), Official Gazette of B-H 75/06, entered into force in 2006; Law on Amendments of Communication Law (Sarajevo, 9 April 2010), Official Gazette of B-H 32/10, entered into force 22 April 2010, all laws available at: http://www.rak.ba/bih/index.php?uid=1269443180 (accessed 23 March 2012).8 Ibid., Article 36, paragraph 1, point b.

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LawsuitDeadline: 90 days

Federation of B-HMunicipal Court with

local jurisdiction

Republika SrpskaBasic Court with local

jurisdiction

Brčko District B-HBasic Court BDB-H

Complaintsto Cantonal Court with

jurisdiction

Complaintsto Disctrict Court with

jurisdiction

Complaintto Court of Appeal of

BDB-H

Revision to the Supreme Court of FB-H, RS or to the Court of

Appeal of BDB-H (if permitted)

Appeal to the Constitutional Court of B-H against final

decision

Appeal to the European Court of Human Rights

Graph 4: Using legal remedies for court protection

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fact that the CRA issues licenses to broadcasters and brings executive measures against broadcasters, including taking away the license, it is important to em-phasize that Article 10 of the Convention allows the state to regulate electronic media because paragraph 1 prescribes that this Article “does not prevent states to require working permits from radio, television and movie companies.” Related to this, the European Court established that there was a violation of rights found in Article 10 of the Convention in cases that dealt with governments refusing to provide these permits to some broadcasters. The Court reiterated that state mo-nopoly in RTV broadcasting puts great limitations on pluralism and, thus, can be justified only if there is an urgent social need for such limitation.9

8 Also, according to the practice of the European Court, the reception of television programs can also be found in the scope of right to be informed in Article 10 of the Conven-tion.10

9

The Communication Law prescribes that the CRA can bring executive measures proportionally to offenses and these measures include fines, warrants for can-celling broadcasting for a certain period of time, as well as revocation of the license. The decision of first instance in these cases is made by General Director of the CRA and the appeals against such decision are submitted to the Council of the Agency. The Council works based on the Law on Administrative Procedure of B-H, but the appeal against the decision of General Director does not postpone the realization of decision. Decisions of the Council of the Agency are final and binding in administrative procedures, but administrative dispute can be con-ducted against them and can start before the Court of Bosnia and Herzegovina (the Court of B-H).11

10

Since such decision can trigger off the question of the protection of rights in Article 10 of the Convention, an appeal before the Constitutional Court can be made against the decision of the Court of B-H. After this, in case the appeal is not successful, it is possible to ask for protection before the European Court.

9 Informationsverein Lentia et al. v. Austria (13914/88,15041/89 and15717/89), 24 Novem-ber 2003, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 23 March 2012);Radio ABC v. Austria (19736/92), 20 October 1997, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 23 March 2012).10 See: Autronic AG v. Switzerland (12726/87), 22 May 1990, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 23 March 2012);or Groppera Radio AG v. Switzerland (10890/84), 28 March 1990, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 23 March 2012).11 Supra note 7, Article 47.

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DirectorGeneral of the CRA Decision of first instance

Council of the CRAComplaint against the

decision of first instance

Court of Bosnia and HerzegovinaLawsuit in administrative

proceedings

European Court of Human RightsAppeal

Constitutional Court of B-HAppeal against decisions of

the Court of B-H

Graph 5: Protection of rights according to the Communication Law

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BURDEN OF PROOF IN LITIGATORY PROCEEDINGSMladen Srdić

In court proceedings related to possibly defamatory or offensive expressions, there is the question of whom the burden of proving certain facts belongs to. According to provisions of valid Laws on Legal Proceedings1

11 in both entities, each party is obligated to prove the facts on which they base their request and the court will, based on the discretion of the court of proofs, determine the facts on which it will make its decision. Based on this, many people conclude that the burden of proving mainly belongs to the plaintiff, as this person makes a state-ment of claim in one proceeding. We believe that such opinion is wrong and that the burden of proving in proceedings must be more equally allocated among parties, but that there can be clear rules about who exactly should prove facts in proceedings and what should those facts be.

In our court practice, when deciding on the existence of defamation, the person who stated or disseminated such information has the burden of proving that some expression is defamatory. This is logical because, when it is claimed that someone is, for example, ‘corrupted,’ and if this person makes charges based on defamation, it is natural that it is the person stating this should prove that this is true. In practice, it would be almost impossible to prove a ‘negative’ fact. Of course, when it comes to offending or expressing a value judgment, it is not even possible to prove that there this is true (this is why it is necessary to make a distinction between facts and judgments in the first place).

However, in some decisions, the European Court of Human Rights criticized al-locating the burden of proving to defendants on several occasions, stating that sometimes the plaintiff is in a better position to prove something about them is false, hence the obligation of proving the statements can be a violation of Article 102

12 of the Convention. Such example is found in the case of Lingens v. Austria3

13, when the Court noticed that the fact on which Lingens based his value judgment was indisputable as well as that he acted in bona fide.

Transferring the burden of proving from the plaintiff onto the defendant was also criticized by special rapporteurs and representatives of freedom

1 Law on Legal Proceedings in FB-H (Sarajevo, 2003), Official Gazette of FB-H 53/03, en-tered into force 28 October 2003, http://www.almaprnjavorac.com/zakoni/Zakon_o_parnicnom_postupku_FBiH_Integralni.pdf (accessed 28 July 2011).2 The European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950), entered into force 3 September 1953. 3 Lingens v. Austria (9815/82), paragraph 46, 8 July1986, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 22 March 2012).

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of expression of the United Nations, the Council of Europe, the Organization for Security and Cooperation in Europe, the Organization of American States and the African Commission on Human Rights and Rights of Peoples. Partici-pants at the OEBS/OSCE 2003 conference in Paris emphasized that transferring the burden of proving is an unacceptable deviation from a general principle of presumption of innocence based on which the burden of proving belongs to the plaintiff, although this could be related only in the context of criminal proceedings regarding defamation.

WHEN DEFENDANTS CARRY THE BURDEN OF PROOF

The general stance of the European Court which is not incompatible to Article 10 of the Convention states that the burden of proof for defamatory statements in civic proceedings belongs to defendants, which can be used to justify the stance of domestic court practice regarding this issue.

In the case of McVicar v. United Kingdom414, with regard to burden of proof, the Euro-

pean Court reiterated that special reasons were necessary for a newspaper to be free of the obligation of verifying facts used for defamation of a person. McVicar is a famous British journalist who, in mid-1995, published an article where he in-sinuated that a famous British athlete, Linford Christie, used doping in order to improve his chances in a competition. In this article, the author states that:

On the basis of circumstantial evidence many believe, but cannot prove that Christie has been taking performance enhancing drugs ... If he has been outwitting the tes-ters for years, it is extremely unlikely that Christie will be caught in the few months left before his likely retirement from competitive sprinting…He also shows most of the physical, behavioral and psychological features of an athlete that regularly uses steroids.

Christie commenced an action in the Court for defamation against the applicant, the magazine’s editor, and the publishing company. The jury determined that the meaning of the disputable article was that the famous athlete was a cheat who regularly used banned performance-enhancing drugs in order to have bet-ter results in competitions. The jury ordered that the plaintiff should be paid for expenses of the procedure, while Christie himself did not ask for any kind of compensation. The European Court established that special reasons were need-ed for one newspaper to be free of the obligation of verifying defamatory facts for a private person. In this specific case, the source of incriminating statements was not clear and there could have been serious consequences for the future of

4 McVicar v. United Kingdom (46311/99), 7 May 2002, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed on 23 March 2012).

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this athlete. Moreover, the journalist made sure to thoroughly verify these facts and to check if these were reliable only after the charges were made. Having in mind these elements, the Court stated:

As for the allocation of the burden of proof in relation to the issue of justification, this did not interfere with freedom of expression hence the judgment of the Court in Britain has not violated Article 10 of the Convention.

We should remind ourselves that in the abovementioned judgment of the Eu-ropean Court in 2009, Europapress Holding d.o.o. v. Croatia5

15, with regard to the burden of proof, it was stated that:

The Court observes at the outset that in the above civil proceedings for defamation the applicant company was given an opportunity to prove the veracity of the published in-formation. Contrary to the applicant company’s claims concerning the assessment of evidence and the standard of proof used by the domestic courts in those pro-ceedings, the Court considers that this task was not unreasonable or impossible in the circumstances [bolding by author].

The stance that the burden of proof of a disputable expression belongs to the de-fendant is also the stance of the Supreme Court of FB-H in judgment No. Gž-45/05 of 19 April 2005:’’The burden of proof regarding the veracity of defamatory statements be-longs to the defendants because they are assumed to be false until the opposite is prov-en“ . In this case, the defendants did not prove their statements and the Supreme Court of FB-H concluded that the expression in question was defamatory.

The Supreme Court of RS expressed its opinion on who needs to carry the bur-den of proof when it comes to the veracity of information which was published, in revision of judgment No.118-0-Rev-09-000424 of 12 February 2010:

According to Article 5 of the Law on Protection against Defamation, defamation is stating or disseminating false expression which causes damage. The content of the expression therefore must be false. The burden of proving the veracity of state-ments normally belongs to the defendant and the burden of proving the exis-tence of such statements belongs to the plaintiff.6

16 [bolding by author]

ABSOLUTE TRUTH SHOULD NOT BE PROVEN

When talking about the fact that the defendant (usually a media outlet or a jour-nalist) is obligated to prove the veracity of statements, we have to remind ourselves that, according to media law, journalists cannot be required to provide

5 Europapers v. Croatia (25333/06) , 22 October 2009, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 23 March 2012).6 Judgment of the Supreme Court of FB-H (No. Gž-45/05),19 March 2005.

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the same degree of establishing veracity of facts as in a court procedure, and it is not necessary to have the evidence of absolute veracity of factual statements for freedom of expression and publishing them. Instead, it is sufficient to have the published information verified first, in accordance with the circumstances of a specific case, that is, in accordance with standard journalistic professional duty. This would mean that, in a court procedure, journalists are in fact not required to prove the absolute veracity of published facts, but the abovementioned de-gree of possible veracity. It is also important for courts to approach this issue correctly and to evaluate the veracity of expressions in media in line with the abovementioned standards in every individual case appearing before them.

Moreover, Article 7 of the Law on Protection against Defamation of FB-H717 pre-

scribes that “there is no liability for defamation in case the expression is a substan-tial truth and if its irrelevant elements are false,“ while Article 6 of the Law of RS8

18 states that “there is no liability if the expression is substantially true.“ Therefore, in the cases when published information is not absolutely true, but substantially true, the court shall make the defendant free of charges of defamation, but has to be careful when determining what a “substantially true” expression in fact is.

This shows that courts have the very delicate and difficult task of determining whether there is defamation and liability in every specific case, due to which it is necessary for judges to constantly be educated in this regard and to follow the practice of domestic courts as well as of European Court of Human Rights.

As for the facts related to the cause and amount of damage, the burden of proof obviously belongs to the plaintiff, who must prove that pecuniary or non-pe-cuniary damage truly occurred as well as the amount of this damage. The way in which the occurrence and amount of non-pecuniary damage can be deter-mined has already been mentioned in pervious chapters.

Decision of Sarajevo Cantonal Court No.P – 5/04 of December 2004, regarding the proof of the existence of financial benefits gained by the defendant by pub-lishing defamatory information, states the following:

The opinion of this Court is that during the procedure, the second plaintiff did not prove that the second defendant gained financial benefits by stating false facts about him, nor did he prove the amount of such benefits (Article 10, paragraph 1 of the Law on Protection against Defamation) and the burden of proof for these 7 Law on Protection against Defamation of FB-H (Sarajevo, 2002), Official Gazette of FB-H No. 59/02, entered into force in 2002, http://www.vzs.ba/index.php?option=com_content&view=article&id=209:zakon-o-zatiti-od-klevetefbih&catid=9:novinarskizakoni&Itemid=12 (accessed 23 March 2012).8 Law on Protection against Defamation of RS (Banja Luka, July 2001), Official Ga-zette of RS No. 37/01, entered into force on 1 August 2001, 2001, http://www.vzs.ba/index.php?option=com_content&view=article&id=210:zakon-o-zatiti-od-kleveters&catid=9:novinarski-zakoni&Itemid=12 (accessed 23 March 2012).

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claims belonged to the plaintiff.

Based on all this, it can be concluded that the burden of proof in court proce-dures is allocated among parties so that both the plaintiff and defendant are obligated to prove their statements. However, the main obligation, that is, the burden of proving the veracity of facts in a disputable expression, still belongs to the person who published it. Therefore, when stating and disseminating pos-sibly disputable information, attention should first be paid to the way in which these facts can later be proven in a court procedure.

Once again, it should be emphasized that quoting a confidential source of infor-mation or relying on the fact that the information was taken over from another media cannot be sufficient to make the person who states or disseminates the expression free of liability for possible defamation.M

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FREEDOM OF EXPRESSION AND THE PROTEC TION OF AUTHORIT Y AND IMPAR TIALIT Y OF JUDIC ATURE Mladen Srdić

The relation between media and judicature is a current issue because media of-ten follow court procedures. However, opinions on the way they should do that vary. On one hand, media often make very negative judgments about the work of the judicature; on the other hand, courts and prosecutions are not transpar-ent enough and sometimes they openly show hostility towards the media. It seems that there is a mutual misunderstanding between media representatives and judicature regarding their roles in a democratic society. The media certainly have the right, or even the obligation, to follow court procedures and the situ-ation in judicature and to inform the public about it. The real question here is how to do this the right way, so that it would not disrupt the integrity of juridical system and maintain high professional standards.

The protection of authority and impartiality of courts is extremely important and it is precisely why paragraph2, Article 101

19of the Convention also stipulates the possibility of restricting freedom of expression. This has already been men-tioned in the chapter dealing with the presumption of innocence as the prin-ciple that must be respected when dealing with a possibly committed criminal act and the person who committed it.

COURTS ENSURE A LEGAL STATE

The main principle of the European Court is that restrictions on public debates on court and ongoing court procedures are succumbed to a more strict supervi-sion of the Court as the functioning of judicature is vital for every democratic so-ciety. Therefore, it is indisputable that there is in the public’s interest to become familiarized through the media with the way in which judicature carries out its social tasks. On several occasions, the Court highlighted the special role judica-ture has in society— guaranteeing justice, a basic value in a state where there is the rule of law and where public trust is needed in order for the state to be suc-cessful in carrying out its duties. In individual cases, the European Court evalu-ates the balance between the interest of media to deliver information and the interest of the public to receive ideas on issues of general importance discussed before courts, and possible negative consequences of the expression when it

1 The European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950), entered into force 3 September 1953.

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comes to authority and impartiality of legislature.

Some stances of the European Court on the need to correct and moderate re-porting on court procedures - hence the reporting cannot have any influence on court proceedings and should not jeopardize the authority of courts – can be seen in the exposition of the 1997 European Court case Worm v. Austria2

20. In this case, Worm was accused of having an unpermitted influence on a criminal procedure as he wrote an article with the alleged intention of influencing the outcome of the procedure against Androsch for the criminal act of tax evasion. He was investigat-ing this case since 1978, and he wrote over one hundred articles about it. From the very beginning, Worm was certain that Androsch committed this crime.

In his articles, he not only criticized Mr.Androsch’s statements, but he also antici-pated the outcome of the trial.. Worm was convicted of attempting to have an unpermitted influence on the outcome of the criminal trial against Androsch. He was fined 48,000 shillings or sentenced to 20 day of imprisonment in case he chose not to pay the fine. After that, Worm submitted an appeal to the European Court that concluded that:

The reasons adduced by the Vienna Court of Appeal to justify the interference with the applicant’s right to freedom of expression resulting from his conviction were also “sufficient” for the purposes of Article 10, paragraph 2 of the Convention. Interests of the applicant and the public in imparting and receiving his ideas concern-ing a matter of general concern which was before the courts were not such as to outweigh the considerations relied on by the Vienna Court of Appeal as to the adverse consequences of the diffusion of the impugned article for the authority and impartiality of the judiciary in Austria [bolding by author]. Given the amount of the fine and the fact that the publishing firm was ordered to be jointly and severally liable for payment of it (see paragraph  15 above), the sanction im-posed cannot be regarded as disproportional to the legitimate aim pursued.

Therefore, the European Court concluded that domestic courts had the right to believe that sentencing and punishing the applicant was “necessary in a demo-cratic society” in order to preserve the authority and impartiality of courts in the sense of paragraph 2 of Article 10 of the Convention. Therefore, there has been no violation of Article 10 of the Convention in this case.

Although freedom speech violations were not found, the Court determined a general rule of not being prohibited from commenting on or discussing a case in public during criminal procedures but, according to the Court, this must be:

Provided that it does not overstep the bounds imposed in the interests of the proper

2 Worm v. Austria (83/1996/702/894), 1997, http://www.iidh.ed.cr/comunidades/libertadexpresion/docs/le_europeo/worm%20v.%20austria.htm (accessed on 28 July 2011).

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administration of justice, reporting, including comment, on court proceedings con-tributes to their publicity and is thus perfectly consonant with the requirement un-der Article 6, paragraph 1 of the of the Convention that hearings be public,” in order not to jeopardize the authority and impartiality of courts and the right of defendant to ‘fair trial’.

PRESSURING LEGISLATURE IS NOT ALLOWED

In the case of Prager and Oberschlick v. Austria31 of 1995, the published text severely

criticized Austrian criminal judges. It accused them of being “arrogant,” and that they “harass” and “ignore the presumption of innocence.” The text referred to some judges by their full name, but it was an attack on all criminal judges.

The source for his text, according to the first applicant, was, beside his personal experience gained when he attended trials, the statements of lawyers and legal correspondents, as well as reports of university researchers. The applicants were found guilty of defamation.

The Court concluded that, beside the fact that press is one of the ways in which politicians and the public control judges when performing their functions, a special role of judicature in a society has to be taken into account.

It concluded that a fundamental value in any legal society is having the public’s trust. Therefore, it can be necessary for this trust to be protected from destructive attacks that are essentially false, especially considering the fact that judges are un-der an oath of secrecy that prevents them from responding to criticism. The Court concluded that the applicants were not found guilty because of the criti-cism itself, but because of the scope of accusations, which turned to be un-necessarily prejudicial due to the lack of sufficient factual basis [bolding by author]. Furthermore, the Court determined that the research conducted by the first applicant was not sufficient to support his statements. Therefore, the Court conclud-ed that the interference was proportional to its legitimate goal.

According to this, the practice of the European Court so far showed that it is not allowed to have any kind of pressure, not even verbal, that aims to affect the process and outcome of a court procedure on the judicature, and it is not allowed to express opinions or information which offend the reputation and dignity of judges in a harsh manner. It is not allowed to input dishonorable motives to judges’ decisions or to attribute illegal actions to them, because this could undermine the judicature’s authority. This jeopardizes the right to fair and impartial trial guaranteed by Article 6 of the Convention.

3 Prager and Oberschlick v. Austria (13/1994/460/541), 26 April 1995, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 23 March 2012).

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In the real world, it often happens that people who work in the judicial system or perform judiciary functions criticize the judicial system; this can be sanctioned and be the subject of disciplinary measures. This means that statements of lawyers and judges can also be disputable. In these cases, the European Court sets the standards for deciding whether restrictions of freedom of expression of people directly involved in court procedures is a violation of Article 10 of the Convention.

LIMITATIONS OF FREEDOM OF EXPRESSION PROTECTING THE FUNCTION OF JU-DICATURE IN A SOCIETY

In the famous 1998 case, Schopfer v. Switzerland42, the European Court decided

that the disciplinary penalty imposed on the applicant by the Association of Court Lawyers after the comments he made at the press conference about one of his clients being detained, was not a violation of Article 10 of the Convention. In this case, the applicant first publicly expressed his complaint on a legal process before a criminal court and later appealed to the Lucerne Court of Appeal. In the case, the European Court reiterated the special status of lawyers who are, in light of their position in dispensing justice, intermediaries between the public and courts.

The role of lawyers

According to the practice of the European Court, lawyers have a “key role” in this field. The Court’s opinion is that lawyers are expected to:

contribute to proper administration of justice, and thus to maintain public confi-dence therein. Freedom of expression secured to lawyers too, who are entitled to comment in public on administration of justice, but their criticism must not over-step certain bounds - balance to be struck between various interests involved, which include public’s right to receive information about questions arising from judicial decisions, requirements of proper administration of justice and dignity of legal profession. [bolding by author]

Having all this in mind, the Court stated that the disciplinary penalty imposed on the applicant was “necessary in a democratic society.”5

3

With regard to this, the judgment of the European Court in the 2002 case of Nikula v. Finland6

4 is very important. In this case, the statement was made by a lawyer involved in court proceedings as a legal representative. Anne Nikula was

4Schopfer v. Switzerland( 56/1997/840/1046), 20 May 1998, http://www.hrcr.org/safrica/expression/schopfer_switzerland.html (accessed on 28 July 2011).5 Ibid.6 Nikula v. Finland (31611/96), 21 March 2002, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed on 28 July 2011).

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a Finnish lawyer who, in 1992 and 1993, was a defense counsel in a criminal proceeding related to closing a company in which her client was charged with helping in and encouraging a fraud and with misuse of entrusted position. The public prosecutor, T., invited one of the former suspects as a witness. Anne Ni-kula objected to that and submitted a document in which she claimed that the strategy of the prosecutor T. was a “manipulation and an unlawful presentation of evidence,“ and that he was “breaching his official duties.” These statements made the prosecutor start a criminal procedure against Nikula.

On August 22, 1994, Nikula was convicted of defamation “without better knowl-edge,” that is only of expressing an opinion on someone’s behavior and not be-cause of attributing an act to another person even though it was well-known that this act did not occur. She was fined and ordered to pay damages and trial expenses to the state. The applicant submitted an appeal based on Article 10 of the European Convention. The European Court reiterated that the special sta-tus of legal representatives as intermediaries between the public and the courts provides them with a central role in dispensing justice. Such status is explained by the usual regulation of behavior of members of the Lawyer’s Chamber. More-over, courts, having the key role of guaranteeing justice in a state based on rule of law, must enjoy public trust. Having in mind the essential role of legal repre-sentatives in this field, it is possible to expect them to contribute to adequate justice dispensing and hence sustaining public trust.

Limitations of acceptable criticism

Furthermore, the European Court reiterated that Article 10 of the Convention protects not only the essence of expressing ideas and information, but also their form. Even though legal representatives surely have the right to comment on dispensing justice, their criticism must not cross certain boundaries. Related to this, what must be taken into account is the need of achieving a proper balance between different interests such as respecting the right of the public to get the information about issues that are the consequences of court judgments and demanding a certain application of justice and dignity of the legal profession. The Court noticed that the limits of acceptable criticism in some circumstances could be wider for state officials than for private persons. This is why the Court states that: “It cannot be said, however, that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent to which politi-cians do and should therefore be treated on an equal footing with the latter when it comes to criticism of their actions. Civil servants must enjoy public confidence in conditions free of undue perturbation if they are to be successful in performing their tasks. It may therefore prove necessary to protect them from offensive and abusive

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verbal attacks when on duty.”75

Moreover, the Court noticed that the claims of the applicant in the Nikula case were limited to the courtroom, and they were not aimed at the judge or the plaintiff in media: “It is true that the applicant accused prosecutor T. of unlawful conduct, but this criticism was directed at the prosecution strategy purportedly chosen by T... as distinct from criticism focusing on T.’s general professional or other qualities.“8

6 The European Court was also unable to conclude that the applicant’s criticism aimed at the plaintiff, as its nature was procedural, was a personal of-fense. Finally, the Court concluded that there was a violation of Article 10 of the European Convention because the judgment of the Supreme Court was dispro-portional to a legitimate goal.

Judges and the right to freedom of expression

The European Court dealt with the restrictions of freedom of expression by judges, in the 2009 case of Kudeshkina v. Russia.9

7 In this case, Olga Borisovna Kudeshkina, the judge of Municipal Court in Moscow, made a statement of claim to the Court in Strasbourg against Russia, where she stated that her right to free-dom of expression was violated under Article 10 of the Convention when she was dismissed from her sitting because of key statements she made in the me-dia. According to her statement of claim, she was the judge appointed to deal with the case of misuse of authorization of police inspector Zaytsev, who was accused of conducting illegal activities within the investigation on a big case of customs and financial fraud involving a group of companies and allegedly some high state officials. The prosecution asked for the exemption of the applicant as a judge due to prejudice she allegedly expressed on 23 July 2003. The presi-dent of the Municipal Court of Moscow reassigned this case to another judge. The applicant was interviewed by radio ‘Ekho Moskvy’ and newspaper ‘Novaya Gazeta,’ where she severely criticized the court practice in Russia. It should also be mentioned that the law on status of judges in the Russian Federation and the Code of judicial ethics of the Russian Federation make judges obligated to abstain from making public statements that discredit the judiciary and judicial system as a whole.

The Judiciary Qualification Board of Moscow found that the behavior of judge Kudeshkina degraded the honor and dignity of a judge, discredited the author-ity of the judicature and caused a great damage to the reputation of the judicial

7 Ibid. 8 Ibid. 9 Kudeshkina v.Russia (29492/05), 26 February 2009, http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Kudeshkina%20%7C%20v.%20%7C%20Russia&sessionid=89372093&skin=hudoc-en (accessed 23 March 2012).

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profession, all of which constitute a disciplinary offence. This led to the judge’s dismissal from her position. The Court decisions that followed, as well as the final decision of the Supreme Court of the Russian Federation, as the highest instance in the proceedings, confirmed the decision on dismissal.

In the statement of claim before the European Court, Kudeshkina said that judg-es, just as all other people, were protected by Article 10, and that interfering in her freedom of expression was not “prescribed by law,” thatit had no legitimate aim, and, finally, that it was not necessary in a democratic society.

In the judgment, the European Court emphasized that Article 10 of the Con-vention was also applicable to a position held; the applicant, as a civil servant, had the right to freedom of expression even when the functioning of judiciary system was regarded the matter of public interest.10

8 In this case, the Court found the measure of the Moscow Municipal Court regarding the disciplinary offence of Olga Borisovna Kudeshkina to be “disproportionally severe,“ and stated that:

it could undoubtedly discourage other judges in the future from making statements critical of public institutions or policies, for fear of the loss of judicial office. Accord-ingly, it is the Court’s assessment that the penalty at issue was disproportionally se-vere on the applicant and was, moreover, capable of having a “chilling effect” on judges wishing to participate in the public debate on the effectiveness of the judicial institutions.

The abovementioned judgment shows the way in which the European Court de-cides that the functioning of judicature is a very important matter of public in-terest that should be open for a free debate in a democratic society. This should be the case even for the persons that are a part of this system, regardless of their obligations of loyalty and discretion of public servants and particularly the ones who work in judicature. The Court also noticed that situations in which court officials are punished due to their statements could have a ‘chilling effect’ on judges’ and prosecutors’ speech that is, it could prevent the former from openly expressing criticism or other opinions on issues related to judicature.

Possibly controversial statements that refer to judges or prosecutors often appear within debates on problems in the judicature or within the context of doubting that judicial officials are impartial and independent. These issues must not be left out of the public debate, as they are important for the public, especially in a country such as B-H, which is going through transition and ju-diciary reform. Therefore, when domestic courts have to evaluate statements referring to judiciary officials, they have to very carefully approach interests and values in cases of criticism. The courts have to establish the balance be-tween the reputation and honor of a judiciary official and freedom of the press

10 Ibid.

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to report on matters of public interest and have to decide what the priority in a democratic society is. This certainly refers to cases when statements truly tends to contribute to public debates on judicature and the weaknesses of the judiciary system, and not when they are attacks on judges and prosecutors due to unpopular decisions or if they aim to affect court proceedings, which is unfortunately very common in B-H. At the same time, in B-H, cases when judges or prosecutors press charges on the basis of defamation are very rare. Still, it is not excluded that this type of cases will appear more often in the fu-ture considering that every day we are the witnesses of rough and impugned statements referring to judges and prosecutors.

Public debates and comments on court decisions

Journalists often complain about the fact that they are forced not to comment on ongoing proceedings and judgments of first instance since they could pos-sibly influence the courts, nor can they comment on some proceedings’ deci-sions. Therefore, it is very important to see whether there is a possibility of public debate on final judgments in court proceedings. On several occasions, the Eu-ropean Court reiterated that courts do not operate in vacuum and that public discussion on court decisions, as well as the criticism of the outcome of court proceedings, cannot be banned. A final court decision per se does not have to mean that incompatible information and opinions published in media are false.

The legal purpose of limiting one’s freedom of speech for the sake of protect-ing the authority of judicial power is not so much the protection of the justice system’s respectability or even the protection of certain judges and prosecutors from public criticism. In fact, it is the protection of the function the justice sys-tem has in a society, that is creating the conditions where everyone has the right to a fair trial by an impartial court, set and given the authority by law.

The democratic justice system therefore protects the court of law not for itself, but for its extremely important function. In order for the justice system to do so successfully, the citizens must obey the authority of the court and trust courts as the right places for settling disputes. Therefore, every unjustified malicious de-meaning of the court authority by anyone (including the media and reporters) does not only threaten the justice system or certain judges, but also the impor-tant social function the court of law has and the vital interests of every citizen.

RECOMMENDATIONS FOR REPORTING ON COURT PROCEEDINGS

In light of the discussion above, we can make several conclusions about how court processes should be commented on and followed in the media:

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• It is necessary to abstain from any unpleasant verbal attack that could in-sult the reputation and dignity of judges, prosecutors and any other court employees;

• Judges or prosecutors can be criticized in certain cases, but the criticism should be strictly limited to their work in specific situations and in no way should it refer to their professional and other qualities;

• Every possible criticism must be based on a sufficient number of facts;

• Presumption of innocence must be respected;

• Unless there are extremely justified, drastic reasons and undisputable facts, it is not allowed to accuse judges of breaking the law or their professional obligations, since this would not only hurt their reputation, but also the trust that the public has in the integrity of the entire justice system;

• If final court decisions are being commented on, the comments must be modest and well-argumented, so that no one would personalize the judge as the decision maker and emphasize their identity, since the decision has been made in the name of court and not in the name of a specific judge;

• There can be debate on the legal opinion of the judges but it should be done carefully and modestly. It should also be taken into consideration that reporters, as much as they are professional and mean well, are not qualified to make legal decisions (which is the job of the court), so they should focus on their social role, where the interest of the public should be the priority, but not if it hurts the role and the authority of the court of law in the eyes in the public;

• No one should attempt to influence a court process using the media.FR

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Chapter 7

MEDIA AND PRIVACY

PROTEC TION OF PRIVAC YAmer Džihana i Mladen Srdić

In Europe, the right to privacy is recognized as a basic human right. Article 8 of the European Convention on Human Rights defines the right to privacy, as well as the conditions under which public authorities can interfere in the exercise of this right:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.1

It is not easy to define the concept of privacy. Solove2 reminds us that most in-terpretations of privacy are rooted in attempts to understand its essence. There is a tendency to simplify the term privacy to its most basic characteristics and to use this term as an expression of many different things.

Privacy, however, is too complex a concept to be reduced to a singular essence. It is a plurality of different things that do not share any one element but nevertheless bear a resemblance to one another. (…) Privacy, in other words, involves so many things that it is impossible to reduce them all to one simple idea. And we need not do so.3

The concept of privacy has been changing and the perception of this concept has likewise evolved. When mass media appeared, public figures and celebrities in particular often experienced violations of privacy by media. Over the years, notable people began to become more active agents in determining how their private lives would be made public, and ‘sold’ aspects of their privacy to media like merchandize. Lately, the development of new technologies has triggered changes in the perception of the concept of privacy.4 Public figures are no lon-ger the only ones to to use media to gain publicity about their private lives; now all citizens, through the use of internet, can easily publish details about

1 The European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950), entered into force 3 September 1953.2 Solove, J. Daniel, Nothing to Hide: The False Tradeoff Between Privacy and Security, USA: Yale University Press, 2011, p.24.3 Ibid.4 Whittle, Stephen and Cooper, Glenda, Privacy, probity and public interest, UK: Reuters Institute for the Study of Journalism of the University of Oxford, 2008.

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their private lives, inadvertently making public details about other people too. This gives citizens greater influence on mainstream media, but simultaneously increases the misuse of personal data because such technologies and business practices facilitate the collection, archiving, and use of data for other purposes. At the same time, individual capacity to manage personal data efficiently is los-ing its footing.

When considering the evolution of freedom of privacy, one must also consider how it affects and is affected by freedom of expression, also a basic human right. The right to freedom of expression can clash with many other rights protected by the European Convention including the right to fair trial, the right to respect for private life, and the right to belief and religion. Defining the right to freedom of expression, Article 10 of the European Convention states:

1. Everyone has the right to freedom of expression. This right shall include free-dom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cin-ema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are pre-scribed by law and are necessary in a democratic society, in the interests of na-tional security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputa-tion or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Like freedom of privacy, the concept and public perception of freedom of ex-pression has changed.5 Freedom of expression is undoubtably a milestone in democratic societies and a prerequsitive for media to serve its function in so-ciety. However, freedom of expression complicates laws that protect privacy. According to Stratford, “the protection of privacy involves a process which aims to balance two important social interests: respect of a personality and preserving freedom of expression.”6

Courts are charged with determining the definition and protection of “privacy”7 in individual cases. The European Court itself has emphasized the difficulties in defining the concept of private life, noting that the border between private and public sphere varies by case. The role of courts in defining privacy is thus par-

5 Ibid.6 Supra note 2, p.13.7 Stradford, Jemima, Striking the Balance: Privacy v. Freedom of Expression under the Euro-pean Convention on Human Rights, in Colvin Madeleine, Developing Key Privacy Rights, UK: Hart Publishing, Oxford, 2002. p. 17.

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ticularly important because the concept of privacy is often redefined by court interpretations.8 In Niemietz v Germany, the European Court of Human Rights determined the following:

The Court does not consider it possible or necessary to attempt an exhaustive defi-nition of the notion of “private life”. However, it would be too restrictive to limit the notion to an “inner circle” in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.9

Media often justifies the intrusion of an individual’s privacy by emphasizing public interest. As Whittle and Cooper say,10 journalists often justify such intru-sions by claiming that public figures are hypocrits and are obligated to serve as role models for others. For example, publishing photos of a tragic car accident is justified by the need to stress the consequences of driving under the influence. At the same time, newspapers sensationalize this information by attaching huge photographs, intriguing titles, and publishing such stories on the front page. This shows that personal tragedies make newspapers sell well. Still, journalists and editors do not determine or control public interest. Regulatory and self-regulatory bodies or courts must determine whether intrusions were justified in the name of public interest when suits are brought before them. In such cases, public reaction to published texts can be influential in determining the defini-tion of public interest. Finally, legislative bodies can create legal remedies that influence the definition of public interest.11

DIFFERENCE BETWEEN PRIVATE AND PUBLIC SPHERE

As mentioned at the beginning of the analysis, freedom of expression can come into conflict with other rights protected by the Convention, such as the right to fair trial, the right to respect of private life, or the right to belief and religion. A special problem when making a statement related to public figures is the rela-tion between freedom of expression and the protection of private life, realized based on Article 8 of the Convention. When such conflict occurs, the court must

8 Coliver, Sandra, ed. Press law and practice: a comparative study of press freedom in Euro-pean and other democracies. London: Article 19, 1993, p. 271. 9 Niemietz v. Germany (13710/88), 16 July 1992, http://sim.law.uu.nl/sim/caselaw/Hof.nsf/e4ca7ef017f8c045c1256849004787f5/4a8709d98fbfacf5c1256640004c19eb?OpenDocument (accessed 13 May 2012). 10 Whittle, Stephen and Cooper, Glenda, Privacy, probity and public interest, UK: Reuters Institute for the Study of Journalism of the University of Oxford, 2008.11 Smartt, Ursula, Media Law for Journalists, UK: SAGE Publications Ltd, 2006.

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determine which right has priority.

The European Court has emphasized that it is no simple or singular definition for private life. The distinction between the private and public sphere varies by case. The main principle is that private and family lives of public figures and officials should be protected from media reporting according, to Article 8 of the Conven-tion. Information on their private lives can be made public if it directly affects the public or if it affects how public officials have or do perform their jobs, as long as precautions are taken to avoid any unnecessary damage to third parties (usually family members). When political or public persons personally draw the public’s attention to their private lives, the media may comment and report on this. However, it is noted that details from a politician’s private life become a matter of of public interest if they influence public activities. In the case that pri-vate details appear in the public realm, it is rightfully expected to use moderate expressions when discussing them.

In the case before European Court, Tammer v. Estonia12 (2001), the Minister of In-ternal Affairs, Edgar Savisaar, was forced to resign in 1995 when secret tapes of his conversation with other politicians were released to the public. One of the minis-ter’s assistants, Ms Vilja Laanaru, accepted full responsibility for the tapes and was forced to resign. Later, with the help of a journalist (Rusaak), she began publishing her memoirs, in which she revealed details of her affair and child with Minister Savisaar, who was married. Laanaru described how she entrusted the child to her parents and admitted that she sacrificed her child for her career. For many years, Laanaru occupied numerous political positions connected with Savisaar. The first marriage of Savisaar was ruined and later on Savisaar and Laanaru got married.

In her book, Laanaru discussed whether she caused Savisaar’s marriage to fall apart. After the book was published, and after some parts of it was published in newspapers, the applicant interviewed Rusaak and questioned whether he had turned Ms. Laanaru, a bad example for girls who had destroyed Minister Savissar’s marriage and abandoned her child, into a hero. The Estonian words used were offensive but not incorrect. The applicant was sentenced with offending Laanaru.

The European Court determined that although Laanaru knowingly revealed de-tails of her personal life to the public, using offensive words “should be observed both within the context of the events which caused them and their valuabili-ty for the public” [bolding by author]. The Court concluded that, at the time these words were used, Laanaru had already resigned. The Court stated that “in spite of her activism in a political party, the impugned terms in relation to Ms Laanaru’s private life were not justified by considerations of public concern nor did they

12 Tammer v. Estonia (41205/98), 6 February 2001, http://sim.law.uu.nl/sim/caselaw/Hof.nsf/2422ec00f1ace923c1256681002b47f1/4bb492a2031f4480c12569ee0038d9de?OpenDocument (accessed 28 July 2011).

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bear on a matter of general importance. Particularly, it was not proven that at the time of the interview, her private life was the issue of public interest. The comments of the applicant could therefore not be considered public inter-est.” [bolding by author].

Related to this topic, the Constitutional Court of B-H, in its decision No. AP 427/0613, repudiated the applicant’s request for compensation damages due to defamation published in the press (as an offense to his right to private life) because, according to Article 8 of the Convention, there was no damage as the writings referred to the applicant’s activity as a military commander during the war, meaning that it had to do with his public function – a part of his public life. In the abovementioned judgment, the Constitutional Court of B-H confirmed that Article 8 of the Conven-tion “does not protect the relations established in public sphere, and based on the appeal it can be concluded that facts and proofs offered by the applicant are concerning precisely his public activities and not private ones.” 14

PROTECTION OF PRIVACY IN B-H

The Constitution of Bosnia and Herzegovina recognizes the right to privacy as a basic human right. It is found in Article 3, paragraph 8 of the Catalogue of Hu-man Rights and defined as ‘’the right to private and family life, home and corre-spondence.” The Constitution of Republika Srpska15 explicitly states that privacy must not be harmed though there are some other provisions of this constitution which refer to protection of privacy.

Human dignity, physical and spiritual integrity, personal privacy, personal and fam-ily life shall be inviolable.16

The Constitution of the Federation of Bosnia and Herzegovina17 states that the Federation will ensure the application of the highest level of internationally rec-ognized rights and freedoms, including privacy.18

13 Decision on appeal, applicants: Mladen and Milan Dunđerović, the Constitutional Court of Bosnia and Herzegovina (AP 427/06), 5 June 2007, http://www.ccbh.ba/bos/odluke/povuci_pdf.php?pid=91421 (accessed 26 March 2012). 14 Ibid.15 Constitution of Republika Srpska (1992), Official Gazette of RS 28/94, entered into force in 1994, http://www.ustavnisud.org/upload/4_8_2009_48_ustav_srpski.pdf (accessed 26 March 2012).16 Ibid., Article 13.17 Constitution of the Federation of Bosnia and Herzegovina (Sarajevo, 30 March 1994), Official Gazette of FB-H 1/94, entered into force 30 March 1994, http://skupstinabd.ba/ustavi/f/ustav_federacije_bosne_i_hercegovine.pdf (accessed 13 May 2012).18 Ibid., Article 2, par.g.

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It is also important to note that the right to privacy is defined by Article 8 of the European Convention as having priority over all other definitions in laws defining this field, because, according to Bakšić-Muftić, the Constitution defines “rights and freedoms envisaged in the European Convention on Human Rights and Fundamental Freedoms and in its protocols they are directly applied in Bosnia and Herzegovina” 19

1 and have priority over all other laws.

The question of privacy is not regulated by a specific law; instead, different seg-ments of protection are found in different laws such as the Law on Protection of Personal Data in B-H20

2 (2001) which defines the right to privacy regarding personal citizens’ data processed by different public bodies, or the Freedom of Access to Information Act, which regulates the access to personal information of citizens controlled by public bodies (2001). The Communication Law of B-H21

3 (2003) prescribes the authorization of the Communications Regulatory Agency over the protection of personal data and privacy22

4.

Although in our country and throughout the world privacy is usually protected by the Law on Protection against Defamation, in court practice, violation of pri-vacy is increasingly treated as a violation of basic human rights.23

5 Strictly speak-ing, the protection of privacy cannot be fully ensured by the Law on Protection against Defamation because it links damages to natural or legal person directly to the expression or dissemination of false facts. Libel, however, is not the only way to violate privacy rights. Intrusion into someone’s privacy is not necessar-ily related to expressing false facts. Therefore, citizens may ask for compensa-tion before courts based on the Convention, which is above local legislation, or based on the Law on Obligatory Relations, which, in force in both entities, speci-fies that everyone is obligated to abstain from actions that cause damage to another person. This includes the damage caused by harming the integrity of one’s personality, personal and family life, and other rights of a personality.24

6

19 Bakšić-Muftić, Jasna, Sistem ljudskih prava (System of Human Rights), Sarajevo, MA thesis, 2002, p.317.20 Law on Protection of Personal Data of BiH (December 2001, Sarajevo), Official Gazette of BiH No. 32/01, entered into force on 28 December 2001. 21 Communication Law (Sarajevo, 2 September 2003), Official Gazette of B-H No. 31/03, entered into force on 21 October 2003, Article 4, at: http://www.rak.ba/bih/index.php?uid=1269443180 (accessed 21 March 2012).22 Ibid., Article 3, par. (d).23 See: Whittle, Stephen and Cooper, Glenda, Privacy, probity and public interest, UK: Reuters Institute for the Study of Journalism of the University of Oxford, 2008.24 See: Krunić-Zita, Ljiljana, Mediji u BiH i prava djeteta- pravni osnov (Media in B-H and rights of a child – legislative basis), http://www.media.ba/mcsonline/bs/tekst/mediji-u-bih-i-prava-djeteta-pravni-osnov (accessed 13 May 2012).

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PRIVACY OF CITIZENS IN DAILY NEWSPAPERS IN B-H

The question of respecting privacy is defined in Article 9 of the Press Code:

The press shall avoid intrusions and enquiries into individual’s private life, unless such intrusions or enquiries are necessary due to the public interest. 

The treatment of stories involving personal tragedy shall be handled sensitively, and the individuals affected shall be approached with sympathy and discretion.25

7

It is necessary to say that violations of provisions of the Code do not succumb to legal penalties; it is stipulated that the Code is accepted as morally-binding for journalists, editors, owners and publishers of newspapers and periodicals.26

8

In practice, violations of privacy often occur in articles published in daily news-papers. According to the Press Council report27

9 based on the monitoring of print media and with regard to violations of privacy, most violations of the Code refer to Article 9 (privacy). Such violations make up one third of all violations. The Report28

10 shows that it is possible that the actual share of these violations is even bigger because the violation of Article 4 (discrimination) comes in second pri-marily due to the specific political situation.29

11

Privacy is most often jeopardized in news on suicides, connecting the personal tragedy of one person with other members of his/her family and in publishing private photos or photos of victim in undesirable circumstances.30

12 The Press Council states that suicides should be treated as “deeply personal and tragic acts, hence they should be approached with the greatest discretion possible and with sympathy,”31

13 and that anonymous persons have the right to anony-mous death.

The Council makes a distinction between public curiosity and public inter-est, emphasizing that journalists should not publish everything they find, but

25 Press Code of B-H (Sarajevo, 29 April 1999), Article 9.1, http://www.vzs.ba/index.php?option=com_content&view=article&id=218&Itemid=9&lang=bs (accessed 26 March 2012).26 Udovičić, Z., Halilović, M., Jusić, T. And Udovičić R. 2001. 27 Press Council of B-H, Report No.2 on continuous monitoring of print media: April-May 2004, http://www.media.ba/mcsonline/bs/tekst/izvjestaj-vijeca-za-stampu-bih-o-krsenju-kodeksa-za-stampu-u-2004-godini (accessed 26 March 2012). 28 Ibid.29 Out of 108 cases of discrimination, 102 cases refer to ‘Glas Srpske’, out of which 67 were on the topic of foreign affairs, more specifically, Kosovo.30 Press Council of B-H, Report No.2 on continuous monitoring of print media: April-May 2004, http://www.media.ba/mcsonline/bs/tekst/izvjestaj-vijeca-za-stampu-bih-o-krsenju-kodeksa-za-stampu-u-2004-godini (accessed 26 March 2012).31 Ibid., p.10.

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should adhere to the principle that journalistic curiosity should not harm any person. According to the Council, an exception to this rule are suicides of public figures or cases of spectacular acts in front of a mass of people, in which case publishing full data or initials can be justified.32

14

In spite of the data indicating that the violation of privacy in daily newspapers is frequent, it seems that this issue still does not enjoy adequate public attention. Debates on these issues are still rather sporadic. The data of the Press Council on the number of submitted complaints point to the fact that between 2001 and 2009 there have been 229 complaints on different bases.33

15 Of the total num-ber of complaints submitted to the Press Council in nine years, only 10 of them (3%) refer to the violation of Article 9 of the Press Code.34

16 However, in the past two years, the number of complaints has increased, with 16%35

17 of all complaints referred to privacy in 2010 and 11% in 2011.36

18 Even though the number of com-plaints submitted to the Council regarding the violation of privacy increased, the numbers are not large enough to indicate a clear trend. The actual number of violations of the right to privacy recorded by independent monitoring of the press (136 in two months) and the number of complaints regarding such viola-tions (42 in 11 years) is stil greatly disproportionate.

32 Ibid. 33 Džihana, Amer 2010 , U borbi za nezavisnost mediji zaboravili na svoju odgovornost (While fighting for independece, media have forgotten about their responsibility), ‘Novi pogledi’ (New perspectives), No.17, Sarajevo.34 Ibid.35 See: Press Council, Overvew of cases in 2010, http://vzs. ba (accessed 13 May 2012).36 See: Press Council, Overvew of cases in 2011, http://vzs. ba (accessed 13 May 2012).

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Chapter 8

LIMITATIONS OF FREEDOM OF MEDIA AND PROTECTION OF NATIONAL SECURITY

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INTERNATIONAL STANDARDS RELATED TO FREEDOM OF EXPRESSION, ACCESS TO INFORMATION AND THE PROTECTION OF NATIONAL SECURITY

Sevima Sali-Terzić

A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.

James Medison119

Public access to information owned by public authorities220 is extremely impor-

tant for the development and sustainability of any free and democratic society. It enables public debate on important issues of public interest, such as corruption and the wrongdoings of government or official authorities. The free access of the public to information is useful for the authorities as well, because transpar-ent and open decision-making processes enable the public to trust the authori-ties and to support their work, especially when it comes to information dealing with the work of intelligence services and other organs in charge of national security. It is precisely in this area, however, where there is increased potential for severe violations of human rights such as the right to privacy, the right to fair trial, and other related rights.

The protection of information important for national security is a significant function of every state because national security is one of the preconditions for the full enjoyment of guaranteed human rights, including the right to infor-mation. Therefore, in certain circumstances, national security requires a certain degree of protection. Still, this protection has to be limited in its scope and it has to be reasonable and proportional to needs of the public to have access to information and documents owned by public authorities. If the system of infor-mation protection functions properly, then only a limited amount of delicate in-formation requires protection. However, this is only as long as the information is considered delicate. Less delicate information requires less protection, whereas some does not require any protection at all.

1 Letter of James Madison to W.T. Barry (4. 8. 1822), in Gaillard, Hunt, ed. The Writings of James Madison. 9 vols. New York: G. P. Putnam’s Sons, 1900-1910.2The Law on Free Access to Information of B-H defines ‘public authority’ as the organ of B-H found in any of following categories: a) executive body; b) legislatiove body; c) judicial body; d) a body appointed or established by law to carry out a public func-tion; e) any other administrative authority; f ) a body that is either owned or controlled by a public authority (paragraph 2, Article 3). Law on Free Access to Information of B-H (Sarajevo, October 2000), Official Gazzette of B-H, 28/00, Came into force on 17 November 2000.

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ACHIEVING FAIR BALANCE

Even though in the past 10-15 years there has been great progress in the rec-ognition and protection of the right to access public information, the full ap-plication of laws regulating this issue are often limited by regulations dealing with protection of information on the basis of national security and on other internationally-accepted bases, including the protection of information the pri-ority of which is the protection of interests of those who rule, that is, the preven-tion of public embarrassment, concealing the information about human rights violations or violations of the law, concealing corruption or other irregularities in the work of public authorities, strengthening the rule and continuous rule of a certain political party or ideology, controlling the riots of workers, protection of national economy, etc.

A very complex issue is achieving the fair balance between the right of the public to be informed and the measures of protection of certain data due to national security. The guiding principle for solving such dilemmas can be found in relevant decrees of international documents on human rights prescribing freedom of access to in-formation and freedom of expression as internationally recognized human rights. Internationally, one the most important documents is the Universal Declaration of Human Rights (Article 19) and International Covenant on Civil and Political Rights, where the freedom of expression is enshrined in Article 19. At a regional level, the European Convention for the Protection of Human Rights and Fundamental Free-doms (in Article 10) addresses the right to freedom of expression and, related to this, the practice of the European Court of Human Rights. In fact, the Constitution of Bosnia and Herzegovina states that the European Convention is applied directly and takes precedence over all other laws, and all courts, state organs, and institutions are to apply the rights guaranteed by the European Convention.

Having this in mind, it is important to indicate the consistent perspective of the European Court regarding the right of the public to receive information of pub-lic interest. The practice of the European Court in this field has developed in relation with the freedom of the press that delivers information and ideas about such issues.3

21

In relation to the interests protected by Article 10 of the European Convention, the European Court regularly argues that laws cannot allow arbitrary limitations of freedom of expression and on receiving and delivering information and ideas because such limitations can easily become a form of indirect censorship, where authorities create obstacles for information gathering. The European Court has

3 For example, see: Observer and Guardian v. United Kingdom (13585/88, p. 59), 26 No-vember 1991, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 26 March 2012); Thogeir Thorgeirson v. Iceland (13778/88, p. 63), 25 June 1992, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudocen (accessed 26 March 2012).

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concluded that, as information gathering represents a preparatory phase in journalism, it is “the protected part of freedom of the press.”4

22

The functions of media also include providing space for public debates. However, as the European Court has concluded, this function is not limited only to media and professional journalists, and refers also to non-governmental organizations and individuals; the Court has admitted on several occasions that civil society has a significant contribution to debates on public affairs, and, along with the press, serves as a social ‘watchdog.’523 Therefore, obstacles prescribed by the authorities that disable or prevent access to information of public interest can be discour-aging for those who work in the media or other similar, socially important fields when it comes to dealing with issues of public interest. As a consequence, me-dia and civil society in general would be unable to perform their social role of ‘a watchdog’ and to provide correct and reliable information to the public.624

The European Court of Justice is in charge of deciding whether the access to documents of organs of the European Union (the European Parliament, Council and Commission) is denied contrary to principles and standards contained in Regulation 1049/2001. Regarding several decisions in favor of applicants, this Court emphasized that the exception from the general principle that the public has to have the widest possible access to documents owned by institutions, has to be strictly interpreted and applied in order not to make the application of this principle questionable. Therefore, the stance of the European Court of Justice is that having a document requesting the access that has to do with interests protected by exceptions prescribed is not sufficient for justification the applica-tion of this exception. What is necessary is for every specific case to determine is: 1) whether the access to a requested document would actually and specifically diminish the protected interest, and 2) that there is no public interest which is stronger and which justifies disclosing the requested document.725

Considering the importance of this issue and the diversity in state practices, besides the protection of freedom of information and expression at the global and regional levels, there is also the need to create more specific standards of legal approach when it comes to information owned by public authorities.

4 See: Tarsasag A Szabadsagjogokert v. Hungary (37374/05, p. 26-27), 14 April 2009, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 26 March 2012).5 Ibid., and see: Dammann v. Switzerland (7751/01, p. 52), 25 April 2006, http://sim.law.uu.nl/sim/caselaw/Hof.nsf/1d4d0dd240bfee7ec12568490035df05/df8014677f05ccd4c125715a003942bf?OpenDocument (accessed 26 March 2012).6 Judgment of Tarsasag A Szabadsagjogokert v. Hungary, Supra note 4, p. 38.7 See: Sweden v. the Commission (C-64/05 P, ECRI-11389, p. 66), 2007, or Access Info Europe v. the Council of European Union (T-233/09), 2011, http://www.statewatch.org/news/2011/mar/eu-ecj-access-inf-judgment-mar-11.pdf (accessed 17 Sep-tember 2011).

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This approach would be based on human rights, on internationally accepted principles of ‘people’s community,’ as well as on state practices. These practices can also be analyzed on the basis of judgments of international and national courts and tribunals that would represent an additional guide for governments when regulating the system of data protection.

JOHANNESBURG PRINCIPLES

In 1995, a group of experts in the field of international law, national security, and the protection of human rights formed a document known as ‘Johannesburg principles on national security, freedom of expression and access to informa-tion’ (‘Johannesburg principles’).8

26 The importance and universal application of this document are also reflected in the fact that Special Rapporteur of the UN on freedom of opinion and expression quoted this document in his reports be-tween 1996 and 2001 and that these are the standards which have been quoted by the UN Commission of Human Rights in its annual resolutions on freedom of expression regularly since 1996.

Johannesburg principles emphasize that it is imperative for people to have the access to information referring to national security in order to have the possibil-ity of supervising the work of public authorities and to fully participate in the life and development of a democratic society. All the obstacles to public and independent supervision created in the name of national security increase the risk of illegal and corruptive behavior of the authorities and other misuses that, due to the protection of such information, can remain unrevealed. In addition, violations of privacy and other rights of citizens can often occur precisely under the shield of the protection of national security.

Therefore, the Johannesburg principles emphasize the need to protect the right of public to be informed. This need would be guaranteed by precise and narrow laws that will enable the basic demands of rule of law, the need of supervision over the parliament or other independent institutions, as well as the need for court protection of these rights before independent courts.

In this context, it is necessary to mention the document called ‘Draft principles on national security and right to information’9

27, created by experts and special mandate holders regarding the issues of freedom of expression and information

8Article 19, Johannesburg Principles on national security, freedom of expression and access to information, available at: http://www.article19.org/data/fi les/pdfs/standards/jo-://www.article19.org/data/fi les/pdfs/standards/jo-www.article19.org/data/fi les/pdfs/standards/jo-.article19.org/data/fi les/pdfs/standards/jo-article19.org/data/fi les/pdfs/standards/jo-19.org/data/fi les/pdfs/standards/jo-org/data/fi les/pdfs/standards/jo-/data/fi les/pdfs/standards/jo-data/fi les/pdfs/standards/jo-/fi les/pdfs/standards/jo-files/pdfs/standards/jo-/pdfs/standards/jo-pdfs/standards/jo-/standards/jo-standards/jo-/jo-jo-burgprinciples.pdf (accessed 3 September 2011).9 Draft Principles on National Security and the Right to Information (adopted on 1 July 2011), http://right2info.org/resources/publications/national-security-and-right-to-information-as-of-july-1 (accessed 3 September 2011).

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(UN Special Rapporteur on freedom of opinion and expression, OSCE Media Freedom Representative, Special Rapporteur on Freedom of Expression of the Organization of American States and Special Rapporteur of African Commission of Human and People’s Rights on Freedom of Expression and Access to Information), and 13 international non-governmental organizations supported by Open Society Justice Initiative.

This is not a binding document and it serves as an instrument for further di-rectives to “governments, legislative and other regulatory organs, proposers of laws, supervisory bodies and civil society” which deal with the most important questions for the relation of national security and right to information signifi-cant for national security, and especially with information influencing human rights and responsibility in a democratic society. The Draft of the principles also takes into account the fact that the information not classified on the basis of na-tional security can still be denied to the public on some other basis recognized by international law, such as international relations, fair trial, rights of parties in court proceedings, protection of criminal investigations, privacy and commer-cial secrets. However, these bases always undergo the principle of ‘test of public interest,’ meaning that the information cannot be denied when public interest of accessing certain information is stronger than the interest of protecting this information as a secret.

INTERNATIONAL STANDARDS

This document (Draft of the Principles on National Security and the Right to In-formation) thoroughly elaborates on international standards related to freedom of expression and access to information. The main goal is for adequate bodies at state, regional, and international level to take over the steps to make this docu-ment available and to discuss it, as well as to adopt and apply its principles in or-der to “fully and progressively realize the right to information.” One of the impor-tant standards is that public authorities cannot just base their claims on alleged risks, but they have to provide evidence that this risk actually exists. The law has to enable every person who requests the access to protected information to have the opportunity to ask for the court assess of the risk, that is, the basis used by public authorities to restrict access to the information.10

28

Chapter VI of Draft Principles is concerned with the protection of public officials who disclose protected information. Principle 39 refers to encouraging and en-abling disclosure of serious misuses; under this principle, states should provide instructions for all organs, especially for agencies or institutions in charge of the security sector in order to create directives for strengthening this principle.

10 Ibid., Principle 4: Burden on Public Authority to Prove Validity of any Restriction.

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Related to this, Principle 41 states that it is the duty of public officials to dis-close, either internally or to an oversight body, the information which cannot be protected and refers to the following wrongdoings: significant violations of the law, including human rights violations, significant mismanagement, conflicts of interest, corruption, abuse of public office, and dangers to public health, safety and the environment. Such disclosure is called ‘protected disclosure’ and it is le-gally protected, while laws have to prohibit sanctioning and revenge in relation to the persons who realized this right (principle 43), and to prescribe sanctions for such acts of public authorities towards these persons.

Furthermore, the Draft Principles also contain the international standard of protection of public officials from penalties, that is, of those officials who are in charge of providing information and who disclose some protected information that they reasonably and in good faith believe can be publicly stated.

WHY PUBLIC INTEREST TEST IS IMPORTANT

As for the persons who have the access to classified information, international standards contained in the Draft Principles prescribe that they can be sanc-tioned for disclosing the classified information on the basis of national security in case it is proved that:

1. the information was legitimately classified pursuant to national law and these Principles;

2. the disclosure violated a narrowly drawn statute criminalizing disclosure of a clearly identified and limited category of information;

3. the disclosure caused identifiable and significant harm to national security that outweighed the public interest in publication of the information;

4. the person did not exhaust internal reporting procedures unless they might be effective where the disclosure concerns a matter that is of immediate and serious harm to public health and safety and/or concerns the commission of a significant crime.

As for sanctioning persons who are not authorized to access the protected infor-mation, the standards prescribe that they cannot be punished just for possess-ing such information, as well as that they cannot be sanctioned for disclosing protected data in case public authorities prove that:

1. the information was legitimately classified pursuant to national law and these Principles;

2. the disclosure violated a narrowly drawn statute criminalizing disclosure of a

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clearly identified and limited category of information;

3. the disclosure caused identifiable and significant harm to national security that outweighed the public interest in publication of the information;

4. the person knew, or reasonably should have known, that such harm was likely to be caused by the disclosure.

And finally, one internationally accepted standard contained in the Draft Prin-ciples is the protection of journalistic sources. Namely, international standards clearly and undoubtedly state that no journalist or other person who does not have authorized access to classified information may be compelled to reveal a confidential source of unpublished materials in an investigation concerning un-authorized disclosure of information to the press or public (Principle 47).

The abovementioned standards are modern standards of access to protected data in democratic states. Their adoption and application ensures the protection from too strict limitations of the access to information and lack of transparency of public authorities. In this way, the public is able to receive the information of public interest no matter if they are protected in the way that public authori-ties can apply ‘the test of public interest’ in every case. This enables the balance between the right of the public to free access to information and the need to protect certain information, that qualifies as an exception from the general rule on freedom of access to information, and ensures the protection of both people authorized to access protected information and people without such access, in-cluding journalists and journalistic sources.

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DISCLOSING SECRET IN CRIMINAL CODES OF B-H

Sevima Sali-Terzić

One of the important functions of every state is the protection of information of national security interest, as well as of the data that can be protected on a different basis recognized by international law (foreign policy, military issues, fair criminal proceedings, privacy protection and similar). However, this protec-tion has to be limited, sensible, and proportional to the public’s need to access the information. Therefore, only a certain number of very delicate information require protection and only for a limited amount of time. Other types of infor-mation require less or no limitations of access.

Under particular conditions, disclosing protected information can become the subject of prosecution and criminal punishment. In such cases, when passing and applying laws international standards need to be taken into account. These stan-dards clearly prescribe the span of protection of information, the obligation of authorities to prove the need for certain information to be protected, obligation of legislator to prescribe the possibility of court reviewing decisions on protection of certain information made by public authorities, and conditions for the prosecu-tion and punishment, as well as the protection of persons who disclose protected information, both authorized and unauthorized to access such information.129

The purpose of this analysis is to show whether these international standards are accepted in criminal laws of B-H or not and if they are, to what extent.

CRIMINAL CODES IN BOSNIA AND HERZEGOVINA

B-H’s criminal code230 prescribes the following in the amended Article 1643

31:

1. An official or responsible person in the institutions of Bosnia and Herzegovina or a military person, who is authorized to classify data or to access secret data and who without authorization communicates, conveys or in any other way makes accessible to another secret data, or obtains secret data with an aim of

1 For more information about international standards see: International standards related to freedom of expression, access to information and the protection of national security. 2 Criminal Code of B-H (Sarajevo, 24 January 2003), Official Gazette of B-H No. 3/03, entered into force in 2003, http://www.mup.vladars.net/zakoni/bh_lat/KRIVICNI%20ZAKON%20BOSNE%20I%20HERCEGOVINE%20(Sluzbeni%20glasnik%20BiH,%20broj:%203.03).pdf (accessed 26 March 2012). See also: Official Gazette of B-H 32/03, 37/03, 54/04, 61/04, 30/05, 53/06, 55/06, 32/07 and 8/10, available at: http://www.mup.vladars.net/index2_lat.php?st=zakoni/zakoni_bih_lat (accessed 26 March 2012).3 Official Gazette of B-H No. 53/06.

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conveying it to an unauthorized person, shall be punished by imprisonment for a term between six months and five years.

2. The punishment referred to in paragraph (1) of this Article shall be imposed on whoever, with an aim to make an unauthorized use of secret data, avails him-self unlawfully of secret data or who communicates, conveys or in any other way makes accessible to another such secret data without a permit; and on whoever communicates, conveys or in any other way makes accessible to an-other or mediates in communicating, conveying or in other way making acces-sible to another a fact or instrument which contains information and which he knows to constitute secret data and which he obtained the possession of in an illegal manner.

3. The punishment of imprisonment for a term between one and ten years shall be imposed on whoever perpetrates the criminal offence referred to in paragraphs (1) and (2) of this Article:

a) out of greed; or

b) in respect of data classified pursuant to the law as “strictly confidential” or with the degree “secret”, or as “state secret” or with the degree “top secret”; or

c) for the purpose of communicating, conveying or in other way making acces- sible or using the secret data outside of Bosnia and Herzegovina.

4. If the criminal offence referred to in paragraph (1) and (3) of this Article was perpetrated by a person who pursuant to the Law on Protection of Secret Data has legal authorization to classify data or to access secret data of a degree in respect of which the criminal offence was perpetrated, the perpetrator shall be punished:

a) for the criminal offence referred to in paragraph (1) of this Article by imprison- ment for a term not less than three years;

b) for the criminal offence referred to in paragraph (3) of this Article by imprison- ment for a term not less than five years.

5. If the criminal offence referred to in paragraphs (1), (2) and (3) of this Article has been perpetrated during a state of war or imminent war threat or a state of emergency or when an order for the engagement and employment of the Armed Forces of Bosnia and Herzegovina is issued, the perpetrator shall be pun-ished by imprisonment for a term not less than five years.

6. If the criminal offence referred to in paragraph (1) and (4) of this Article was perpetrated by negligence, the perpetrator shall be punished:

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a) for the criminal offence referred to in paragraph (1) of this Article by a fine or imprisonment for a term not exceeding three years;

b) for the criminal offence referred to in paragraph (4) of this Article by imprison- ment for a term between three months and three years.

7. If the criminal offence referred to in paragraph (6) of this Article was perpetrat-ed in respect of data classified pursuant to the law as “strictly confidential” or with the degree “secret”, or as “state secret” or with the degree “top secret”, the perpetrator shall be punished by imprisonment for a term between six months and five years.

8. Provisions of paragraphs (1), (3), (4), (5), (6) and (7) of this Article shall also be applied to a person who without authorization communicates, conveys or in any other way makes accessible to another secret data, after his function as an official or responsible person in the institutions of Bosnia and Herzegovina or as a military person or as a person authorized to classify data or to access secret data has ceased.

9. There shall be no criminal offence of disclosure of secret data if somebody makes public or mediates in making public secret data the contents of which are in contravention with the constitutional order of Bosnia and Herzegovina, with an aim of disclosing to the public the irregularities attached to organizing, performance or management of the office or with an aim of disclosing to the public the facts which constitute a violation of the constitutional order or of an international agreement, provided that the making public has no substantial prejudicial consequences for Bosnia and Herzegovina.

FB-H’s Criminal Code432 prescribes the felony «Disclosing a Secret of the Federa-

tion» in the following way in Article 158:

1. An authorized person, who in contravention of law or regulation of the Federa-tion passed on the basis of law, passes on or renders accessible a secret of the Federation entrusted to him, to another person, shall be punished by imprison-ment for a term between one and ten years.

2. Whoever discloses or passes on to another person or mediates in disclosing in-formation or a document which he knows to constitute a secret of the Federa-tion, and which he obtained in an illegal manner, shall be punished by impris-onment for a term between six months and five years.

4 Criminal Code of the Federation of B-H (Sarajevo, 9 July 2003), Official Gazette of FB-H No. 36/03, entered into force 1 August 2003, http://pravosudje.ba/vstv/faces/vijesti.jsp?id=15332&vijesti_jezik=B (accessed 26 March 2012). See also: Official Gazette of FB-H 37/03, 21/04, 69/04, 18/05, 42/10 and 42/11.

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3. If the criminal offence referred to in paragraph 1 of this Article has been perpe-trated during a state of war or imminent war danger, or if it has led to the en-dangerment of the security, economic or military power of the Federation, the perpetrator shall be punished by imprisonment for a term not less than three years.

4. An authorized person who perpetrates the criminal offence referred to in para-graph 1 of this Article out of negligence, shall be punished by imprisonment for a term between six months and five years.

5. There shall be no criminal offence referred to in paragraph 2 of this Article, if somebody makes public or mediates in making public a secret of the Federation whose contents are in contravention with the constitutional order of the Fed-eration, with an aim of disclosing to the public a violation of the constitutional order of the Federation, provided that the making public does not undermine the security of the Federation.

Republika Srpska’s Criminal Code51 prescribes the felony «Disclosing a Secret

of Republika Srpska» in the following way, in Article 305:

1. Whoever discloses or conveys to unauthorized person or renders accessible information or a document entrusted to him or obtained by him in any way, which constitutes a state secret of Republika Srpska, shall be punished by imprisonment for a term between one and ten years.

2. If the offence referred to in Paragraph 1 of this Article is perpetrated dur-ing a state of war or imminent war threat or armed conflict, or if it leads to the endangerment of the security, economic or military power of the coun-try, the perpetrator shall be punished by imprisonment for a term between three and fifteen years.

3. If the offence referred to in Paragraph 1 of this Article is perpetrated out of negligence, the perpetrator shall be punished by imprisonment for a term between six months and five years.

4. If the offence referred to in Paragraph 2 of this Article is perpetrated out of negligence, the perpetrator shall be punished by imprisonment for a term between one and eight years.

5 Criminal Code of Republika Srpska (Banjaluka, 28 May 2003), Official Gazette of RS No. 49/03, entered into force 1 July 2003, http://www.mup.vladars.net/zakoni/rs_lat/KRIV-ICNI%20ZAKON%20REPUBLIKE%20SRPSKE%20(Sluzbeni%20glasnik%20RS,%20broj:%2049.03).pdf (accessed 26 March 2012). See also: Official Gazette of RS 108/04, 37/06, 70/06 and 73/10.

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Criminal Code of Brčko District of B-H62 (hereinafter BD) in Article 157 pre-

scribes felony «Disclosing a Secret of Brčko District of Bosnia and Herzegovina» in the following way:

1. An authorized person who in contravention of law or regulation passed on the basis of law, passes on or renders accessible the secret of the Brčko District entrusted to him, to another person, shall be sentenced to imprisonment for a term between one and ten years.

2. Whoever discloses or passes on to another person or mediates in disclosing in-formation or a document which he knows to constitute the secret of the Brčko District, which he obtained in an illegal manner, shall be sentenced to imprison-ment for a term between six months and five years.

3. If the criminal offence referred to in paragraph 1 of this Article has been perpetrated during a state of war or imminent war danger, or if it has led to the endangerment of the security or economic power of the Brčko Dis-trict, the perpetrator shall be sentenced to imprisonment for a term not less than three years.

4. An authorized person who perpetrates the criminal offence referred to in para-graph 1 of this Article by negligence, shall be sentenced to imprisonment for a term between six months and five years.

5. There shall be no criminal offence referred to in paragraph 2 of this Article, if somebody makes public or mediates in making public the secret of the Brčko District the contents of which are in contravention with the order of the Brčko District established by the Constitution of Bosnia and Herzegovina and the Statute of the Brčko District, with an aim of disclosing to the public facts which constitute a violation of the order established by the Constitution and the Stat-ute or of an international agreement, provided that making it public does not undermine the security of the Brčko District.

WHO CAN BE PROSECUTED FOR DISCLOSING SECRET DATA?

Criminal laws at four levels of B-H (state, entity and Brčko District of B-H) pre-scribe the felony for disclosing secret data (B-H), that is, of a secret of FB-H, RS, or BD. At the state level, according to paragraph 1, Article 164, the person who

6 Criminal Code of Brčko District of Bosnia and Herzegovina (Brčko, 28 May 2003), Of-ficial Gazette of BD B-H No. 10/03, entered into force 1 July 2003, http://skupstinabd.ba/zakoni/12/b/4.Krivicni%20zakon%20Brcko%20distrikta%20BiHSl.glasnik%20Brcko%20DC,br.10-03.pdf (accessed 26 March 2012). See also: Official Gazette of BD B-H 6/05 and 21/10.

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committed the felony of disclosing secret data can be an official73 or responsible

person84 in institutions of Bosnia and Herzegovina or military person9

5 “authorized to classify data or to access secret data.” Paragraph 1, Article 158 (CL of FB-H) and paragraph 1, Article 157 (CL of BD) state that the felony for disclosing a secret can be committed only by an authorized person which is, according to Article 2 of CL of FB-H and BD, an authorized official, responsible and military person as it is defined in these decrees.

In this way, the scope of people who can commit this felony is narrowed down, which practically means that some other person who accessed secret data in some other manner and who conveys them to a third person, cannot be pros-ecuted for this felony, even if this person was aware of the fact that this is the data classified as secret. Beside this, all three levels incriminate disclosing secret data under the authority of a person that basically further on narrows down the scope of people who can be prosecuted for this felony. For an authorized person who commits this felony, the prescribed punishment is imprisonment for a term between six months and five years on the level of B-H (par.1, Article 164), one and ten years on the level of FB-H (par.1, Article 158), and on the level of BD B-H (par.1, Article 157).

7 Paragraph 3, Article 1 of the Criminal Code of B-H defines this term: «Official person means: a person elected or appointed to legislative, executive and judicial office within Bosnia and Herzegovina and other national and administrative institutions or services which perform particular administrative, expert and other duties, within the rights and liabilities of the authority that has founded them; a person who continuously or occasionally executes official duty in the aforementioned administrative bodies or institutions, an authorized person in a business enterprise or another legal entity that has been entrusted with the execution of public authorities by law or other regula-tions based on the law, who performs certain duties within the framework of the given authority; and other persons who are performing specific official duties, with or without remuneration, as stipulated by law or other regulations based on the law.»8 Paragraph 5, Article 1 of the Criminal Code of B-H defines this term: « Responsible per-son is a person in a business enterprise or another legal entity who, in the line of duty or on the basis of specific authorization, has been entrusted with a portfolio related to the implementation of law or regulations based on law or general act of a business enterprise or other legal entities in managing and administrating the property, or is related to managing a productive or some other business process or supervision of such processes. Official person as defined in paragraph 3 of this Article is also considered to be a responsible person when it comes to actions where a responsible person is alleged as a perpetrator, providing that such actions are not stipulated as a criminal offence under the chapter dealing with criminal offences against official and other responsible duties, or as criminal offences of an official person stipulated under some other chapter of this Code or another law of Bosnia and Herzegovina.»9 This term is defined in paragraph 9, Article 1 of the Criminal Code of B-H: «Military person, in terms of this Code, is a military professional or a person on the reserve force, while in service with the Armed Forces of Bosnia and Herzegovina, pursuant to the Law on Service in the Armed Forces of Bosnia and Herzegovina.»

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However, the narrowed scope of people who can be prosecuted for the felony for disclosing secret data is significantly extended in the next paragraph of given ar-ticles of the criminal law of B-H, FB-H and BD. This is how paragraph 2, Article 164 of B-H’s criminal law prescribes that there is the responsibility of any other person who “with an aim to make an unauthorized use of secret data, avails himself un-lawfully of secret data” or who communicates, conveys or in any other way makes accessible to another such secret data without a permit, and whoever mediates in communicating, conveying or in other way making accessible to another a fact or instrument which contains information and which he knows to constitute secret data and which he obtained the possession of “in an illegal manner.”

Practically, such definition can include any person who illegally accesses some data and who knows that the data is classified as secret, which undoubtedly includes both journalists and journalistic sources.

At the level of B-H, the punishment for such felony is between six months and five years of imprisonment, the same as the one for an authorized person. At the levels of FB-H and BD, this is prescribed as a lighter form of felony, so that the sentence is lighter compared to the one of an authorized person (one to ten years compared to six months to five years).

Two conditions have to be fulfilled for this act to be treated as a felony: first, the committer has to know that the data or the documents are secret, and second, he or she has to have accessed these data or documents illegally. Although at a first glance it seems that the burden of proof belongs to the prosecution, in practice the burden of proof could very easily belong to the defendant. This is mainly due to the fact that there is not a single decree that clearly establishes limits and the obligation of prosecution is to prove that all conditions for this act to be treated as a felony are fulfilled.

Namely, such norms imply that the persons who did not access secret data ille-gally will not be criminally liable, but there is no precise decree regulating this ”other way of accessing.” It is hard to assume that secret data can be accessed accidentally and the Law on Protection of Secret Data10

6 precisely prescribes who can access the secret data. In addition, Article 10 of the Law on Protection of Se-cret Data prescribes that all citizens of B-H ”who acquire or gain access to secret data in a manner, which is not contrary to the law, shall assume the obligation to keep the secret data.” Therefore, both criminal laws and the Law on Protection of Secret Data establish the illegality of acquiring the data as a condition for this act to be treated as a felony.

10 Law on Protection of Secret Data (Sarajevo, July 2005), Official Gazette of B-H No. 54/05, entered into force in 2005. See also: Official Gazette of B-H 12/09, http://www.sudbih.gov.ba/files/docs/zakoni/ba/zakon_o_zastiti_tajnih_podataka_-_izmjena_12_09_-_bos.pdf (accessed 26 March 2012).

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ACQUIRING SECRET DATA ILLEGALLY

When talking about unauthorized persons, it could be concluded, on the basis of the abovementioned decrees of criminal laws and the Law on Protection of Secret Data, that, in relation to the illegality of acquiring these data, the starting presumption would be that they were acquired illegally. This happens especially because the Law on Protection of Secret Data does not stipulate any possibility for anyone except authorized persons has the access to secret data or that they can be made available based on someone’s request.

In such situation, the question which appears again is whether the courts would agree to confirm charges in which the prosecution only states that some person accessed secret data illegally based only on the fact that the data were classified as secret and that the law does not stipulate the possibility of accessing this data in a legal way.

So far, we have not been able to answer this question in practice, but, theoretically, such decree could not only lay the burden of proof on the person charged for this felony, but it could also question respecting the principles of presumption of in-nocence, one of the basic principles of criminal law. If this was applied in practice in such manner, then journalists could easily be charged for this felony and could easily be in the situation where the defense would be based on proving the way in which certain data were acquired. In other words, journalists would have to reveal the source of acquired information in order to defend themselves, contrary to the internationally accepted standards related to the protection of journalistic sources.

B-H’s criminal law prescribes that the felony for illegal acquiring of secret data is also the one “with an aim to be used without authorization.” This decree is broad-ly defined and leads to the conclusion that there will be a felony even if secret data are not conveyed to anyone, meaning that one person can be prosecuted merely because he/she owns secret data although international standards do not allow the punishment for owning such data.11

7

Beside this, according to international standards, even persons without autho-rization to access the classified information cannot be sanctioned for disclosing such data, unless public authorities prove that:

1) the information is classified according to domestic law and internationally accepted principles; 2) disclosing violated narrowly defined law which criminal-izes revealing clearly defined and limited categories of information; 3) disclosing data caused precisely determined and significant damage to national security which preponderates over the public interest of receiving the information; and 4) the person knows or could reasonably know that such damage will be caused by disclosing classified data.

11 Supra note 1.

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RESTRICTIVE CRIMINAL CODES

So far, the analysis has shown that the abovementioned guarantees are not en-sured by criminal laws. Criminal laws refer only to secret data at the level of B-H or the secrets of FB-H, RS, or BD, while the category or type of classified informa-tion are not defined or limited. As a result, the same punishment is prescribed for any classified information without regard to the type and level of secrecy of this information.

In addition, the analyzed decrees sanction disclosing secret data secret even if this did not cause any significant damage which can be precisely identified, because none of the given decrees of criminal laws sets this as a condition for this to be treated as a felony. The only exception is the so called permissive norm contained in the criminal law of B-H, FB-H, and BD which will be discussed later on.

Incriminating acts at the levels of B-H, FB-H and BD not only include stating, conveying, or making secret data available, but also the mediation in these acts which widens the circle of people who can be criminally liable for this felony.

The approach of RS’s criminal law to regulating felonies for disclosing a secret is slightly different, hence, in its first paragraph, it prescribes criminal liability for this felony for any person when secret data were “entrusted to him or obtained by him in any way », and when this person renders them «to unauthorized per-son.” No matter who commits this felony, the punishment would be imprison-ment between one and ten years.

The essential difference between RS and other criminal laws is that the illegality of acquiring the data is not required, thus there is a felony no matter in which way this person acquired secret data. This situation is more problematic and restrictive than the one at the levels of B-H, FB-H and BD and it leaves a lot of space for the prosecu-tion of this felony. On the other hand, this decree of RS’s criminal law does not in-clude mediation in conveying secret data as criminal act. Instead, it includes only un-authorized conveying of, rendering, or making secret data or documents available.

The restrictiveness of such solution in RS’s criminal law is also supported by the fact that, unlike the other three laws, it does not contain the so-called permis-sive norm, which, under particular circumstances excludes criminal liability for disclosing a secret. Namely, the criminal laws of B-H, FB-H and BD prescribe that there is no felony for disclosing secret data if someone publishes or mediates in publishing secret data. This is not the case of the constitutional systems of B-H, FB-H or the Statute of BD, that aim to make public the facts harming constitu-tional ystem or international agreement “if disclosing does not cause harmful consequences for B-H,” “for the security of FB-H” or “the security of Brčko District.”

This regulation excludes the illegality of act only if disclosing did not cause any damage. B-H’s criminal law uses the phrase “serious harmful consequences for

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B-H,” which is very wide and leaves space for different interpretations. Namely, such norms generally speak about consequences for B-H and not about conse-quences related to the security of its territories, as it is the case at the levels of FB-H and BD. Although this is an important regulation acknowledging and confirming that legitimate general interest of familiarizing with illegal acts preponderates over the interest of keeping the data secret no matter how they are classified, the freedom of disclosing such data is limited by the quite undefined phrase “serious harmful consequences for B-H,” that is, for the security of FB-H or BD.

Such phrase, although it seems useful for possible defendants, leaves space for a very wide interpretation. This regulation can also be interpreted as a limita-tion for prosecution when passing charges if it determines that secret data were disclosed with the goal of revealing unconstitutional acts without any damage to B-H or its territories. However, if the prosecution brings charges and if a court confirms these charges, then the defendant would have to prove that the goal was to reveal unconstitutional acts and that there were no harmful consequenc-es in the sense of this regulation.

As it was said before, RS’s criminal law does not contain such regulation. Accord-ing to this law, it would not be possible at all for defense to be based on public interest of revealing unconstitutional acts.

RIGHT TO ACCESS PUBLIC INFORMATION AND STATE SECRETS

Criminal laws at all levels and the Law on Protection of Secret Data define secret data and “a secret.” However, these definitions are very wide and, contrary to the principles from Johannesburg,12

8 they are very restrictive in relation with the right of receiving and providing information and freedom of expression.

Namely, criminal laws and the Law on Protection of Secret Data define secret data and/or a secret in the way that mainly limits, or better, disables the access to in-formation contrary to the decrees of the Freedom of Access to Information Act at the levels of B-H, FB-H, and RS.13

9 In fact, the laws on free access to information clearly prescribe very narrowly defined exceptions regarding the right and free-dom of everyone to get information from public authorities. Moreover, these laws prescribe that public organs in charge will make the required information public even if it fits within the exceptions, that is, when publishing the data classified as a 12 Supra note 1.13 Freedom of Access to Information Act in B-H (Sarajevo, October 2000), Official Gazette of B-H No. 28/00, entered into force 17 November 2000; Freedom of Access to Information Act in FB-H (Sarajevo, July 2001), Official Gazette of FB-H No. 32/01, entered into force 24 July 2001, and Freedom of Access to Information Act in RS (Banjaluka, May 2001),Official Gazette of RS No. 20/01, entered into force 18 May 2001.

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secret “is justified by public interest,” taking into account “every benefit and dam-age which can be the result of making the information public.”

However, Article 8 of the Law on Protection of Secret Data prescribes that certain data is considered a secret “if their disclosure to an unauthorized person, media, organization, institution, authority or other state and/or authority of other state could pose a threat to the integrity of Bosnia and Herzegovina, in particular in the following areas:

a) public security,

b) defense,

c) foreign affairs and interests,

d) intelligence and security interests of Bosnia and Herzegovina,

e) communication and other systems important for state interests, judiciary, projects and plans significant for defense and intelligence-security activities,

f ) scientific, research, technological, economic and financial operations signifi cant for the safe functioning of B-H institutions and/or security structures at all levels of the state organization.

This definition is very wide and does not allow any exceptions prescribed by laws on free access to information. Hence, public authorities in relation to secret data do not apply “the test of public interest.” It can even be concluded that, according to the Law on Protection of Secret Data, public authorities are not obli-gated to respond to requests related to classified information.

Also, if public authorities reject the request for providing classified information, this Law does not stipulate the right for court review of the decision of rejection, although international standards require this explicitly14

10, as prescribed by the laws on free access to information. Instead, the Law on Protection of Secret Data limits the access to classified information only to authorities and officials who have the permission for such access (the circle of these persons depends on the type of classified information) after they pass security check. On the other hand, criminal laws enable the prosecuting and punishing not only of an official per-son, but of everyone who conveys classified information with a very narrowly defined exception (disclosing unconstitutional act if it does not harm B-H or the security of FB-H and BD) which is not even found in the criminal laws of RS.

Furthermore, the definition of term “secret data” in Article 8 of the Law on Pro-tection of Secret Data shows that secret data do not have to be important for national security, as they can also be other information with great importance to

14 Supra note 1

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the public. This is very widely defined “e) communication and other systems im-portant for ‘state interests’,” and “f ) scientific, research, technological, economic and financial operations significant for the safe functioning of B-H institutions and/or security structures at all levels of the state organization.“

In spite of prescribing “the importance for public interests” and the importance of “the safe functioning of B-H institutions and/or security structures at all levels of the state organization,” such a wide defi nition contradicts the laws on free access to informa-” such a wide defi nition contradicts the laws on free access to informa- such a wide definition contradicts the laws on free access to informa-tion and leaves space for a full prohibition of access to a wide range of information of a great public interest without applying “the test of public interest” prescribed by the laws on free access to information. At the same time, such definitions in criminal laws enable prosecuting a great number of people, both authorities and officials, and everyone else-including journalists and NGO activists-on the basis of conveying or dis-closing such information to the public. This is a worrisome issue because there is no court review of rejection to provide classified information, hence the decision mainly belongs to the persons legally authorized to classify some information as a secret.

Also, there are no regulations referring to the fact that in certain periods of time it will be reconsidered whether it is justified for information to be classified in some of the ways prescribed by the Law on Protection of Secret Data, nor are there firmly established deadlines referring to how long such classification will last.

ARE SEVERE PENALTIES IN CRIMINAL CODES CONTRARY TO ‘PUBLIC INTEREST’?

As it was showed, at different levels of rule in B-H there are different punishments for the felony for disclosing a secret. At the level of B-H, the punishment is im-prisonment between six months and five years. On the other hand, in Republika Srpska, the punishment is imprisonment between one and ten years. Such differ-ent solutions indicate to different assessments of legislators when it comes to the severity of this felony. In FB-H and BD there are different punishments for officials and for other people, thus the punishment for an official person varies between one and ten years of imprisonment, whereas the punishment for other persons is not as severe, ranging between six months and five years of imprisonment.

It is extremely important to notice that more severe punishments for official per-sons (and in RS for other persons, too) are prescribed at lower administrative-ter-ritorial levels of government, even though the issues of national (state) security, international relations, and foreign affairs are exclusively under the authority of the state of B-H and the state is obligated to conduct activities to protect them. Therefore, there is the question of whether it is justified to have such strict sanc-tions for authorized persons at the level of entities and BD.

Beside this, criminal laws and the Law on Protection of Secret Data do not

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acknowledge the duty of public officials to disclose information both internally and to the organ in charge of the protection of secret data if there is an illegal act. According to international standards, such information refers to a grave law violation, including the violation of human rights, misuse of official position and a great danger for health, security, or environment in general.15

11 The given laws do not prescribe the abovementioned exceptions, so prosecuting and punish-ing authorized persons who disclosed classified information referring to such issues would be contrary to public interest, especially having in mind the se-verity of punishments at the levels of FB-H, RS, and BD. Article 9 of the Law on Protection of Secret Data prescribes that what cannot be treated as a secret are “the data which are classified as a secret with a goal to hide felony, violation or misuse of authorities, with a goal to hide any illegality or to hide administrative error,” but it does not diminish the deficiencies if the criminal laws.

The punishment prescribed for unauthorized persons in the sense of criminal laws is between six months and five years in all laws except the one of Republika Srpska, where there is no difference between acts committed by authorized per-sons or other people. Having in mind the fact that the Law on Protection of Secret Data contains regulations contrary to the laws on free access to information, it can hardly be said that these punishments are proportional to public inter-est. Namely, along with all other legal limitations which have been considered already, severe punishments of imprisonment for citizens who convey classified information are in fact threats which can hardly, if at all, be justified by “public interest” in line with international standards.

LEGISLATIVE CONSEQUENCES FOR WORK IN JOURNALISM AND FREEDOM OF EXPRESSION

Enabling the prosecution of every person on the basis of conveying secret infor-mation without adequate limitations of interference into the right to free access to information and freedom of expression can certainly cause the prosecution of journalists as well.

As it was said before, at the levels of B-H, FB-H, and BD there is a regulation on the basis of which prosecution can be avoided, but this regulation leaves space for various interpretations and can lead to passing the burden of proof to the defendant. In addition, in relation with these persons, criminal laws prescribe criminal liability for illegal acquiring of secret data (except in the criminal law of RS) which means that the defendant would have to prove that he or she did not acquire these data illegally. In the case of the prosecution of journalists, this would mean that, in order to 15 Supra note 1

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defend themselves, journalists would be in the situation of revealing the sources of information, putting investigative reporting in jeopardy and diminishing its possibilities as well as bringing into question international standards requiring the protection of journalistic sources. Also, severe sanctions prescribed for the persons who commit the felony by disclosing secret data or a secret, along with all gaps in criminal law and the Law on Protection of Secret Data mentioned, can surely diminish the scope of investigative reporting and access to information important to the public, hence the public trust into the government would significantly decrease.

On the other hand, according to the Law on Protection of Secret Data, journalists, or citizens in general do not even have the possibility or right to ask public authorities to disclose classified information as this law prescribes the access to such informa-tion exclusively for public officials. At the same time, what is not prescribed is the court review of public authorities rejecting to provide such information in accordan-ce with “the test of public interest,” which practically derogates the right provided by the laws on free access to information. This test ought to be adequately included into the Law on Protection of Secret Data in a way that is accordant with to the laws on free access to information.16

12

16 E.g. In Slovenia, according to the Law on Information of Public Interest, «the test of public interest » is applied in relation to the information classified below the level of «secret» (Article 6). However, in United Kingdom, the very classification of information does not prevent public authorities to disclose such information according to the Free-dom of Access to Information Act.

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Chapter 9

REGULATION OF ELECTRONIC MEDIA

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REGUL ATION OF BROADC ASTING IN B -H Helena Mandić

The regulation of electronic media in line with European standards in Bosnia and Herzegovina begins with the Independent Media Committee (IMC) found-ed by the High Representative in June, 1998.113 In line with the principles of objec-tivity, transparency, non-discrimination and proportionality, IMC was in charge of establishing a regulatory regime for electronic media in B-H. This primarily entailed issuing licenses to all RTV stations and other media as needed, manag-ing and awarding frequency spectrum for broadcasting, passing relevant codes binding for all RTV stations and other media, and determining the level of com-pensation for license.

According to this decision, the General Director and the Council are the top management of the IMC and are chosen by the Office of High Representative. Beside this, the Decision stipulated the forming of the Implementation Board that would decide on severe violations of the Code or of license conditions. However, in cases that require immediate reaction, such decisions can be made by the General Director.

LICENSES ON THE PRINCIPLE OF COMPETITION

The decision also stipulated the authority of the IMC over managing and award-ing frequency spectrum for broadcasting until the Law on Telecommunications at the level of Bosnia and Herzegovina was passed. This established moratorium of awarding broadcasting frequencies until IMC started to perform this activity.

At the time of IMC’s establishment there were almost 300 different RTV stations in B-H that operated either with licenses issued at different levels, or often even without any licenses. The IMC started to issue temporary licenses for broadcast-ing which in fact meant only the registration of the existing RTV. During this process, the database of all RTV stations was created and all of them received licenses for broadcasting on their frequencies (changes of technical parameters occurred only in the cases when serious technical disturbance occurred).

The management of the Independent Media Committee consisted at first of for-eigners appointed by the Office of the High Representative. However, from the very beginning, the committee’s goal was to have a management consisting of local experts and to form a strong institution at a state level. In November 1999,

1 http://www.ohr.int/decisions/mediadec/default.asp?content_id=95 (accessed on 24 March 2012).

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a B-H citizen was appointed to the position of the Chief of Legal Department and the process of appointing B-H citizens continued. The first local General Di-rector was appointed in October 2003 while three Council members held their positions until the first complete local Council was appointed in April 2005.

During 2000, the IMC began the procedure of issuing long-term broadcasting licenses. Within this process, RTV stations had to fulfill the minimum of program, financial and technical criteria in order to get a long-term broadcasting license. After this procedure ended, out of 258 RTV participating stations, only 183 quali-fied for the license. These included 42 TV stations (16 public and 26 private) and 141 radio stations (62 public and 79 private).

This procedure was based on the principle of competition, which enabled issu-ing licenses in order to use frequency spectrum in the most efficient way and to provide various and quality programs at both local and regional level. More-over, in different international forums, this procedure was said to be successful, transparent, non-discriminatory and open, introducing order among electronic media due to very clear rules and especially due to the fact that the process was conducted in an efficient and transparent manner.

FORMING THE REGULATORY AGENCY

On March 2, 2001, the Decision of High Representative214 joined the duties of the

Independent Media Committee with the duties of Regulatory Agency for Tele-communications (TRA), thus forming one of the first convergent regulators in Europe.

The reasons for making such decision were:

• the need to speed up the development of regulatory mechanisms at a state level;

• avoiding double or conflicting regulatory authorities at all level of govern-ment in B-H;

• the key role of telecommunications in economic development of any coun-try;

• the assumption that opening the market of telecommunications towards the competition brings benefits to both consumers and business sector;

• the fact that the trend in communications industry towards the con-vergence of technology and the way of transmission requires clear and

2 http://www.ohr.int/decisions/mediadec/default.asp?content_id=75 (accessed on 24 March 2012).

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comprehensive regulatory approach;

• the opinion that the unique regulator will enable a quick and efficient reac-tion to economic and business conditions.

Therefore, the decision set the Communications Regulatory Agency as a clear authority of the state of Bosnia and Herzegovina in the field of communications.

The Agency is managed by the executive director and its structure includes at least two sectors led by local experts: one for broadcasting and one for tele-communications. The decision also stipulated the involvement of international consultants.

The decision especially emphasized the independence of the Agency while re-taining authority over conducting rules and decisions.

The decision stipulated that the Agency would be financed from licensing fees, from the budget received from joined institutions of B-H and from donations. However, the decision also stipulated that the budget of the Agency as a state-level body represented a part of the budget of institutions of B-H and that the budget of the Agency directly referred to sector policies of the Council of Minis-ters. In addition, after the Agency’s Council approved the budger, the executive director has to submit the budget for the approval of the Council of Ministers since the state service for revision should control the Agency’s finances.

Such solution, intended to strengthen the institution of the state of Bosnia and Herzegovina, later on negatively impacted the work and independence of the Agency. The decision ensured the continuity of all rules and procedures before the IMC and CRA at the moment when the two institutions converged. Also, that in case there was no compliance, this decision would have priority over all laws, rules and decisions at all levels of government in B-H.

On 21 October 2002, the High Representative made a decision that regulated different issues of transitional nature that resulted of previous decisions of the High Representative. At the same time, the Communication Law of Bosnia and Herzegovina was passed.3

15

The reasons for making such decisions are given in the preamble and cover vari-ous issues. These are:

Observing that the Communication Law of Bosnia and Herzegovina, which is a pre-requisite for foreign investment and a necessary element for a fully functioning and empowered regulator, has yet to be adopted;

Recalling that the implementation of this Law and its objectives require a politically in-dependent Communications Regulatory Agency that relies on the exceptional expertise 3 http://www.ohr.int/decisions/econdec/default.asp?content_id=28251 (accessed on 24 March 2012).

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and competence of the members of the Council of the Agency and the General Director, it is therefore necessary to ensure that the members of the Council of the Agency and the General Director are exclusively appointed on considerations based on their integrity, knowledge and professional merit.

These points are significant when the actual independence of the Agency is ob-served in relation to the one stipulated by the Communication Law.

WHAT THE COMMUNICATION LAW PRESCRIBES

On October 21, 2001, the High Representative passed the Communication Law of Bosnia and Herzegovina.4

16 Later on, the very same form of the Law was ad-opted by the B-H Parliament5

17, and since then there have been only some slight changes.6

18

Formally, the Communication Law is a very strong basis for the independence of the Agency.

In chapter IX, Article 36, the Agency is defined as an independent and non-profit agency that regulates the communications sector and that carries out its du-ties in accordance with goals and regulatory principles in line with sector poli-cies. These duties are carried out in accordance with the principles of objectivity, transparency and non-discrimination.

Article 3 makes a distinction between the Council of Ministers’ duties and the Agency’s. The Council of Ministers’ duties include producing and adopting poli-cies in line with existing laws and determining the presentation of Bosnia and Herzegovina on international forums in the field of communications. On the other hand, the Agency has authority over the regulation of broadcasting and public telecommunications networks and services. These services include issu-ing licenses, establishing prices, interconnectivity and defining the main condi-tions for ensuring joined and international means of communication, planning, coordinating, ensuring the purpose and awarding the radio-frequency spec-trum.

Additional goals of both bodies are defined by the same article, paragraph 4 which states that the Council of Ministers and the Agency, in line with indi-vidual duties defined by this Law, take all reasonable measures for reaching the following goals: 

4 Official Gazette of B-H 21/02.5 Communication Law (Sarajevo, 2 September 2003), Official Gazette of B-H No. 31/03, entered into force 21 October 2003. 6 Official Gazette of B-H 75/06 and 32/10.

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a)The promotion of fair competition in order that users derive maximum benefit

in terms of choice, price and quality; 

b)That there is no distortion or restriction of competition in the communications

sector according to the Council of Ministers’ sector policies; 

c)That efficient investment in infrastructure is encouraged and innovation pro

moted; 

d)That copyright and other intellectual property as well as personal data and

privacy is protected; 

e)That efficient use and effective management of radio frequencies and num

bering resources are ensured in accordance with the radio regulations and

other recommendations of the International Telecommunication Union, and

with other international agreements entered into by Bosnia and Herzegovina.

Article 4 of the Law gives regulatory principles of broadcasting and telecom-munications.

Regulatory principles of broadcasting:

• The protection of freedom of expression and diversity of opinion;

• The development of professional and viable commercial and public broad-casters;

• That broadcasters shall be separate from political control and manipulation;

• That licenses shall be awarded on the basis of a process by which appro-priate professional standards of program content, technical operation and financing are ensured;

• That broadcast advertising shall be regulated so as to be consistent with best European practice.

Regulatory principles of telecommunications:

• The protection of interest of users;

• That all users shall have access to telecommunications services on a trans-parent, objective and non-discriminatory basis;

• That the quality levels for the provision of telecommunications services and telecommunications equipment shall be compatible with standards gener-ally adopted in the European Union;

• That tariffs charged for telecommunications services shall be transparent and non-discriminatory;

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• That open entry into the provision of telecommunications services will be encouraged according to the Council of Ministers’ sector policies.

As such, regulatory principles imply the independence of the Agency because, based on the way they are defined by the Law, they could not be fulfilled in case the Agency falls under any type of control.

Article 37 of the Law gives the duties of the Agency in the field of communica-tions.

Agency duties:

• To promulgate rules on broadcasting and telecommunications;

• To license broadcasters and telecommunications operators;

• To plan, manage, allocate and assign frequency spectrum and monitor the use of it;

• To require the disclosure of such information as is necessary for the due performance of its regulatory obligations;

• To apply technical and quality standards;

• To establish and maintain a technical license fee system;

• Other duties in line with the Communication Law or Sector Policy.

According to the Law, the duties of the Agency include: planning, managing, the purpose and awarding the frequency spectrum, issuing licenses in broad-casting field and following the respect of license conditions and other rules and regulations passed by the Agency. The process of licensing is entirely non-discriminatory and transparent and it is conducted according to the principle of competition based on precise criteria and the best technical, program and financial results. Each electronic media and media service provider has to have the license of the Agency for the use of the spectrum; broadcasting without an adequate license is illegal. The license for broadcasting includes the obligation of respecting the Agency’s rules and regulations that protect the independence and the right of the media to freedom of expression and establish certain stan-dards of broadcasting which the media have to fulfill.

The Communication Law stipulates a mechanisms of protection of the Agency both through explicit provisions prescribing that officials at all levels of govern-ment cannot interfere in decision making process (Article 36 (3) of the Law states that “The Council of Ministers, ministers or any other person cannot interfere in de-cision making process of the Agency in any way in individual cases”) and through provisions regulating the process of election of General Director and the Council of the Agency.

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WHAT THE AGENCY IS IN CHARGE OF AND WHAT IT CONSISTS OF

The Council leads the Agency when it comes to strategic issues of applying laws and it consults with General Director from whom it receives reports. The Council of the Agency adopts the code of work and rules for broadcasting and telecom-munications. Beside this, the function of Council of the Agency is to serve as an appellate body for decisions made by General Director. The members choose the president and vice-president among themselves. The Council of the Agen-cy meets at least four times a year. The General Director submits reports to the Council with regard to strategic issues and attends all meetings of the Council without a right to vote.

With regard to the election of the members of the Council, the Law describes a procedure that ensures the election without any political influence. Namely, according to the Law, only the Council of the Agency selects new members and determines a list of candidates that consists of at least double the numbers of members chosen at that time. This list is then submitted to the Council of Minis-ters that chooses candidates from an extended list and then submits the names of the select candidates to the B-H Parliament that will appoint them to their new positions. The Parliament accepts or rejects proposed candidates within 30 days, and in the case of rejection, the Council of Ministers has to offer an alterna-tive candidate from the list put together by the Council of the Agency.

The fact that the Council of Ministers suggests the list of candidates for a new make-up of this body often causes confusion and makes the credibility of such procedure rather questionable. However, it is considered that the Law solves any confusion that may occur in a satisfactory manner. It has to be emphasized that the Council determines a list which consists of at least two candidates per each vacancy. There are no restrictions stating that the Council should not create a list of more candidates. Furthermore, the fact that the Council cannot propose the current members does not leave any space for misconduct – namely, beside cur-rent members, the Council has to submit alternative members as well, and the mandate of Council members can be repeated only once, an usual duration for a mandate so that same persons cannot be the members of the Council all the time.

In addition, it is necessary to emphasize that Council members are appointed based on their personal qualifications as individuals with legal, economic, tech-nical or other relevant experience and who are experts in the field of telecom-munications and broadcasting.

The Law also prescribes that officials on legislative or executive positions at all levels of the government or members of bodies of political parties cannot be can-didates for membership in the Council of the Agency. Moreover, the members of the Council have to report every interest they have in telecommunications or

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broadcasters operators and they are exempted in cases of a conflict of interest.

This procedure could be additionally advanced if there was a provision introduced to define in a more detailed way the procedure of announcing the call for new Council members and a provision which would make it binding for the Parliament to give a detailed explanation of why a candidate was rejected. It is also possible to obligate the Council of the Agency to rank candidates; another provision can de-termine deadlines for the Council of Ministers to submit a new list of candidates, as well as a final deadline for the entire procedure and to make the first-ranked candidates take over the duty automatically in case this deadline is not respected.

However, it is considered that the Law still formally ensures that members of the Council of the Agency are chosen in a democratic way, without the interfer-ence of political interests. In practice, however, we are facing the situation in which the mandate of the Council expired on April 25, 2009. After the legally prescribed procedure was conducted, the Council of the Agency submitted the list to the Council of Ministers (due to the lack of provisions on the procedure of announcing the call, the provisions regulating this issue in the case of electing the General Director were applied); the Council of Ministers narrowed down the list and forwarded it to the Parliament. Without any explanation, the Parliament returned the list of candidates to the Council of Ministers with a request of a new list. At the time when this text was written (May 2011), new members were not yet appointed nor were there signs of when this could happen.

THE GENERAL DIRECTOR

The General Director is the head of the Agency and this person is responsible for all administrative activities of the Agency, which include the application of the Communication Law and other relevant laws. Also, this person is responsible for all staff issues of the Agency, as well as for establishing the rules about internal procedures.

There is a detailed description of the procedure of appointing the General Direc-tor in Article 40 of the Communication Law.

The nomination of the General Director shall be made following a public com-petition that has to be announced in the Official Gazette and allow at least four weeks for the submission of applications. Applicants shall have relevant experi-ence in the fields of telecommunications and/or broadcasting and proven man-agement skills. Officials in legislative or executive functions at any level of Gov-ernment, or members of political party organs shall not be nominated for the position of General Director. The General Director shall not have any financial relation with a telecommunications operator or a broadcaster. 

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After the selection, the Council of the Agency proposes the General Director, who needs to be approved by the Council of Ministers within thirty days after submission of the nomination.

The Law provides a very clear definition for the position of General Director, as well as guidelines for the obligation of the Council of Ministers to appoint the General Director suggested by the Council of the Agency.

If it was an initial intention, the legislator would state for example, that the Coun-cil of the Agency forwards to the Council of Ministers the list of candidates for General Director or it would stipulate the conditions under which the Council of Ministers could return the proposal. However, as the Law states that the Council proposes the General Director and not a candidate for General Director who is then approved by the Council of Ministers within a certain period of time, it is clear that in such circumstances there are not options for different interpretations.

However, problems occurred in the application of this Article. After following the legally prescribed procedure, in 2007, the Council of the Agency submitted to the Council of Ministers a proposal for the General Director. Instead of the ap-proval of the nomination, the Council of Ministers repudiated the proposal and made ordered the Council of the Agency “to announce a new call for the election of General Director of Communications Regulatory Agency...”

Therefore, even though the Council of the Agency conducted the legally prescribed procedure and submitted the unanimously adopted proposal for the approval of appointing the selected candidate for the position of General Director to the Coun-cil of Ministers on time, the Council of Ministers refused to approve this election without any legal basis. Namely, the Law explicitly prescribes that the Council of the Agency is entirely in charge of the election and appointing while the Council of Min-isters only approves the proposal. In addition, the Law does not enable the Council of Ministers to establish or conduct the procedure of appointing the General Direc-tor of the Agency on its own, nor to have any other influence on the procedure of election and appointing the General Director. The Council of the Agency cannot be influenced by the Council of Ministers when making individual decisions within its legal authorization (Article 36, paragraph 3 of the Communication Law). This is also prescribed by the provisions of the Communication Law which guide the appoint-ment of the Council of the Agency and clearly prescribes limits on the influence that the Council of Ministers and the Parliament can have on the final nomination of Council members (more on this in the previous chapter).

(IN)COMPLETE FINANCIAL INDEPENDENCE

Financial issues of the Agency are regulated by Article 40 of the Communication Law. The budget of the Agency shall relate directly to the Council of Ministers’ sector policies. The General Director shall submit a budget for each fiscal year,

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previously adopted by the Council of the Agency, to the Council of Ministers for approval. Until the budget is approved or altered by the Council of Ministers, the Agency shall operate the budget adopted by the Council of the Agency.

The funding of the Agency comes from recurrent technical license fees for the regulation and supervision of the telecommunications operators and broad-casters and from grants or donations received by the Agency insofar as they are in conformity with general principles of law. When grants or donations are given for specific tasks or projects in the public interest, they shall be accounted for separately to the approved budget and not be included therein. 

Funds received by the Agency shall be used in accordance with the Agency’s budget as directed by the General Director. The Law also states that fines col-lected by the Agency in the performance of its right to apply enforcement mea-sures, and levies invoiced as directed by the Council of Ministers shall be remit-ted to the Council of Ministers for inclusion in the budget of the institutions of Bosnia and Herzegovina. 

The use of funds by the Agency shall be subject to review by the Supreme Audit Institution and in addition audited by an independent auditor every year. The Agency shall prepare an annual report of its finances and acti vities, and shall submit it to the Council of Ministers. The Council of Ministers shall consider the Agency’s annual report and publish it not later than four (4) months after the end of each financial year. 

The Council of Ministers can lower the proposed budget of the Agency to a cer-tain percent which somewhat limits a direct impact on the budgetary policy of the Agency. However, the very fact that the Agency has the status of a budget-ary user7

1, makes it succumb to numerous laws related to budgetary users – Law on Salaries, Law on Ministries and Other Bodies of Administration, etc. which puts the Agency primarily under financial control.

Finally, the independence of the Agency is particularly jeopardized after there were amendments and additions to the Law on Ministries and Other Bodies of Administration8

2, which was adopted by both houses of the Parliament of B-H on 30 December 2009. The Agency was included in ‘stand-alone’ administration bodies. The concept of ‘stand-alone’ in the context of this Law should not be mixed with the concept of independence. Namely, ‘stand-alone’ in this context refers only to the fact that the Agency is not a part of a ministry or any other body while the Law makes it succumb to numerous influences of executive rule which additionally endangers its independence having in mind that this is an independent regulator the activities of which are regulated by special legal acts.

7 Law on Funding the Institutions of Bosnia and Herzegovina (Sarajevo 2004), Official Gazette of BiH 61/04 and 49/09.8 Official Gazette of BiH 103/09.

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RULES AND CODES OF THE AGENCY

The Agency adopted the rules in the field of electronic media by following Eu-ropean principles and standards. On one hand, general program rules prescribe program standards; such rules are found in the Code on Broadcasting Radio-Television Program and the Code on Advertising and Sponsorship in Programs of RTV Stations. On the other hand, rules in the field of broadcasting establish the system of licensing and specific rules for cable distribution and audiovisual me-dia services.

One of the main regulatory documents defining the rules and standards that deal with program content is the Code on Broadcasting RTV Programs. The pre-amble of this Code, adopted for the first time on July 30, 1998, covers the issues such as encouraging, representing and promoting ethnic, national or religious intolerance and violence. Also, the Code’s stated purpose is to ensure the right to freedom of expression stipulated by the European Convention of Human Rights and in the Constitution of Bosnia and Herzegovina, while respecting the general standards of decency, non-discrimination, fairness, and accuracy. The Code came into force on August 1, 1998, and is considered to be a constitution for electronic media in Bosnia and Herzegovina which should be respected by all license carriers in the field of broadcasting.

Beside the Code on Broadcasting RTV Programs in the sense of operational prac-tice, the Code on Advertising and Sponsorship in the Programs of RTV Stations also regulates RTV program. This Code, regulating the principles of advertising and sponsorship in the programs of RTV stations, was adopted for the first time on March 9, 2000.

In May 2005, the President of Bosnia and Herzegovina ratified the Convention of the Council of Europe on the trans-frontier television; after the ratification, domestic regulations were supposed to be aligned with the Convention’s provi-sions. Every member state and every signatory of these documents needed to guarantee that national broadcasters will follow the given provisions. The har-monization of domestic legislative processes and European Union directives is a binding aspect of European integration.

Even before the official ratification, the Agency started working on the compli-ance with the Convention. In 2004, the first amendment of the Code on Broad-casting RTV program included provisions related to the limitations regarding the protection of children and minors from possibly inappropriate contents broadcasted at inappropriate hours.

The process of complying with the Convention became more intensive after its ratification; in 2006, the Code on Advertising and Sponsorship in Programs of RTV Stations was revised in accordance with the provision and decrees on advertising

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and sponsorship in the Convention on Trans-frontier Television. The amended provi-sions on advertising and sponsorship referred primarily to how long advertisement breaks last (15% of daily program at most, and 20 in one hour). Beside this, provi-sions related to the interruption of programs due to advertising were introduced, as well as provisions related to the protection of minors and to advertising of alcoholic beverages. The amended and clarified text of the Code on Advertising and Sponsor-ship in Programs of RTV Stations entered into effect on October 29, 2007.

The directive of the European Union on television without borders also under-went extensive changes and, in December 2007, it came into force in a different form and under the name of “Directive on audiovisual media services.” Consid-ering the obligations of Bosnia and Herzegovina in the processes of stabiliza-tion and accession that refer to the compliance of domestic regulations with European legal and regulatory documents, the process of amending the Code on Broadcasting RTV Programs began.

The amended and clarified text of the Code included topics such as the protec-tion of minors, the inclusion of programming dedicated to minors, and reporting on crimes involving minors. For the first time, this Code paid special attention to the right to privacy and introduced special provisions referring to drugs and alcohol, cigarettes, violence and dangerous behavior, sex and nudity on televi-sion, warning the audience before certain content is broadcasted, reporting on court procedures, etc. The new text of the Code on Broadcasting RTV Programs was adopted by the Council of the Agency on January 31, 2008, and came into force on March 10, 2008.

In an effort to create a firm legal ground for electronic media, the Agency also ad-opted numerous other rules in the field of broadcasting. One of the first rules more precisely defining the procedure of licensing was Rule 04/2000 Process of com-petition based on the best results for awarding long-term broadcasting licenses, adopted on September 26, 2000. On June 15, 2009, Rule 42/2009 on licenses for terrestrial radio-diffusion of RTV programs replaced Rule 04/2000 and established the procedure and criteria for obtaining licenses for the terrestrial radio-diffusion of radio or television programs and general and specific conditions of licensing. The purpose of this Rule is to realize the most important principles in the field of radio-diffusion: the protection of media pluralism, public interest and ensuring equal and efficient competition on media market in Bosnia and Herzegovina. The abovementioned rules established a fair, reasonable, open, non-discriminatory and transparent way of issuing licenses for terrestrial radio-diffusion. 

Having in mind that there is a dual broadcasting system in B-H, dealing with both public and commercial radio and television stations, the two have different obligations as well. On November 1, 1999, Rule 1/1999- Definitions and obliga-tions of public radio stations was adopted; the rule defined the obligations of

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public radio and TV stations with regard to meeting certain requirements re-lated to program content, limitations related to the allowed amount of time for advertising, establishing editorial councils, independence from political struc-tures, etc. The rule was amended several times and, in 2009, the Council of the Agency adopted the Rule 41/2009 on public RTV stations.

ENCOURAGING SERVICE PROVIDERS COMPETITION

Following the new trends in the regulatory practice of the EU countries, the Agency introduced a new regime of licensing by issuing licenses for audiovisual media services and licenses for distribution of radio and TV programs. In order to regulate the process of issuing licenses and the conditions of these licenses, on January 31, 2008, the Council of the Agency adopted Rule 33/2008 on the way of licensing and conditions of licenses for providing audiovisual media services,9

3 which realizes the most important principles of broadcasting sector while taking into account the fast digitalization of the media and the process of convergence as a precondition for introducing digital terrestrial television in B-H. On September 10, 2008, the Council adopted Rule 36/2008 on the way of licensing and conditions of licenses for distribution of radio and television pro-grams10

4; the rule’s purpose is to ensure access to communicational services on a transparent, objective and non-discriminatory basis, to protect the interests of all users of services, and to make the quality level of services closer to the gen-eral standards in the European Union.

The process of compliance with the European regulatory framework continued in 2010, and it primarily referred to the new approach to regulating television services and advertising and sponsorship (audiovisual commercial communica-tion) and the introduction of regulating services on demand. The rules which were to be changed during 2010 and the adoption of which is expected in 2011 include: Code on Broadcasting RTV Programs, Code on Advertising and Sponsor-ship, Rule 42/2009 on licenses for terrestrial radio-diffusion of RTV programs, Rule 36/2008 on the way of licensing and conditions of licenses for distribution of RTV programs and Rule 41/2009 on public stations11

5.

At the meeting held on November 15, 2011, the Council of the Agency adopted a new set of regulatory documents which fully replaced the abovementioned rules and codes. This set included:

9 http://www.rak.ba/bih/index.php?uid=1269867979 (accessed 26 March 2012).10 http://www.rak.ba/bih/index.php?uid=1269867979 (accessed 26 March 2012).11 http://www.rak.ba/bih/aktuelnost.php?uid=1303198557 ( accessed 26 March 2012).

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The Code on audiovisual media services and media services of radio, the Code on commercial communications, Rule 55/2011 on providing audiovisual media ser-vices, Rule 56/2011 on licenses for distribution of audiovisual media services and media services of radio, Rule 57/2011 on public RTV broadcasters and Rule 58/2011 on providing media services of radio. 12

6

The main characteristics of suggested changes are pivotal in the regulation that, so far, exclusively referred to traditional broadcasting. The new approach in regulation is the consequence of adapting traditional services of providing con-tent intended for broadcasting in a new audiovisual environment and services that appeared with the development of new technologies. The reason for this is the fact that digitalization of information, increased speed of transmitting data, and the development of new platforms of distribution put aside the principle according to which media services are identified based on technology of trans-mission. In line with this, the main goal of the Agency is to use these changes in order to encourage competition among service providers, to enable a greater flexibility in financing audiovisual contents, to provide a high level of protection of consumers and to create equal conditions for all service providers no matter which technology they use to distribute their services.

Beside big changes in the very structure of regulatory framework and terminol-ogy, one of the most important novelties was that for the first time regulatory framework included media services at one’s request which needed to get the approval of the Agency. In line with the Directive, new rules introduced a two-level approach of regulation of media services, having in mind that the level of regulation is not as strict when it comes to the services at one’s request, that is, there are less rules applied to them, and considering the fact that viewers/listen-ers are to choose the content to watch/listen on their own gives them a greater extent of control. The Code on commercial communications more thoroughly regulates the new forms of advertising and introduces the regulation of market-ing of a product. Also, it is important to say that in order to protect the minors more efficiently, the Code on audiovisual media services and media services of radio prescribes more detailed provisions related to the protection of minors. Primarily, there is the obligation of categorizing and marking contents based on the appropriateness to a certain age group as well as the time of broadcasting certain program contents. The Code thus introduces the categories of marking program content with 12+, 16+ and 18+.

By adopting the abovementioned documents, the Agency made regulatory framework fully comply with the Directive on audiovisual media services. There are two provisions of the Directive left as the Agency was unable to take over

12 All these documents were published in the Official Gazette of B-H 98/11, and they are also available on the website of the Agency http://www.rak.ba/bih/index.php?uid=1324649058.

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due to legal limitations hence it incorporated them into the Decision on estab-lishing a body in B-H in charge of the cooperation with regulatory bodies in the field of electronic media and providing authorization for determining a list of important events for broadcasting in B-H which is supposed to be adopted by the Council of Ministers of Bosnia and Herzegovina.

PROCEDURES IN CASES OF VIOLATIONS OF THE CODE, RULES OR LICENSE CONDITIONS

Every private or legal person can make a complaint to the Agency; the complaint is then officially considered according to established procedures. The Agency can also start the procedure when it establishes or learns that, considering the existing factual state, the procedure should protect public interest. In order for the Agency to be able to take measures when there is a possible violation of rules and regulations in relation to program content, it is necessary for every complaint received to contain basic data on date and time of broadcasting the disputable program.

All complaints are considered in the same manner. The preliminary procedure af-ter the complaint is received includes submitting a request to the station to send the video of the program and comments on the complaint. Then, the Agency ana-lyzes this program in the context of possible violation of applicable rules and regu-lations. In the time of the Independent Media Committee, the Implementation Board made decisions on violations of the Code or conditions of the license and, in cases requiring quick resolve, the General Director could make the decision. The General Director now always makes decision of first instance on possible viola-tions of rules and regulations of the Communications Regulatory Agency.

In particularly complex cases (cases important for politics, the first cases on a new issue that are likely to become frequent, complex cases related to broad-casting standards, etc.), the General Director of the Agency can ask for an expert opinion from a consulting committee consisting of experts in different fields (law, journalism, literature, technical science, etc.). 

Proportionally to established violations of relevant rules and regulations, the Communication Law of B-H (Article 46) stipulates certain sanctions, or executive measures:

a) Oral and written warnings; 

b) Inspection of licensed facilities; 

c)  Concrete demands for action or cessation, to be complied with within a specified time limit; 

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d) Assessment of a financial penalty not to exceed 150,000 KM in case of deliberate or negligent violation of individual provisions of the Law or of conditions specified in the license or in the codes of practice and rules of the Agency. The level of the financial imposition shall be commensurate with the gravity of the infringement and, where applicable, with the gross financial benefits derived from the infringement. In case of repeated violations, the financial imposition may not exceed 300,000 KM. The Agency shall devise a schedule of infractions and resulting penalties, which shall be adopted by the Council of Ministers.

e)  Orders to interrupt broadcasting or the provision of telecommunications services for a period not exceeding three months; 

f ) Revocation of a license.

After the decision is made, it is sent to a license carrying radio and/or TV station and then it is published to the public. The stations can contest these decisions. The role of the Council of the Agency in this procedure is similar to the role of the court of appeal. The main principles of the court of appeal are also applied when the Council carries out its appellative function. When deciding on com-plaints, the Council of the Agency follows the Law on Managing Procedures. Ju-dicial questioning of a decision can begin if there is a complaint in a managing dispute before the Court of Bosnia and Herzegovina.

OVERVIEW OF VIOLATIONS OF RELEVANT RULES AND REGULATIONS

1998-2001 Period

In the first three years of its work, the Independent Media Committee (IMC) received most complaints and there were most punishments based on the violations of rules and regulations. According to “The report on cases of violations of rules of the Agen-cy, June 1998 – December 2001,”13

7 in this period, the former Department for Moni-toring and Complaints of the IMC, today’s Sector for Program Contents, Complaints and Legal Regulations in Broadcasting officially considered 473 complaints related to program standards, obligations of respecting copyright, etc.

In this period of time, there were 138 decisions in total related to violations, 50 of which were made by the General Director, and 88 by the Implementation Board. After this regulation was established, RTV stations had the obligation to respect rules and regulations of program standards in broadcasting for the first time; it is not a surprise that the very beginning of the IMC was marked by the most dif-ficult cases of violations of rules and regulations. It is especially emphasized that this was a post-war time when public communication was generally on a very low level, when texts and programs were still full of political discrimination, based on

13 www.rak.ba (accessed 26 March 2012).

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intolerance and stereotypes from war and pre-war years.

Out of the abovementioned number of decisions on violations made in this pe-riod, 52 referred to the established violations of rules and regulations related to program content (Code on Editing Radio-Television Program- the earlier name of today’s Code on Broadcasting RTV Program),

Table 1: Decisions on complaints related to content of programs (see Annex 1)

Following the history of cases decided by the General Director and the Imple-mentation Board, it is clear that from 1998 until the mid-2000s cases mainly re-ferred to the violations of the Code on Broadcasting RTV Programs, whereas later most violations referred to copyright violations14

8 and violations of the Code on Advertising and Sponsorship. Overall, assessments of the code on broadcasting in the first three years showed that the provision related to fair and impartial program editing (Article 1.4 of the Code15

9) was violated 27 times.

The provision related to the obligation of saving program videos (Article 4.1 of the Code) was not taken seriously by the stations at the very beginning an was violated in 19 cases.

The most severe violations certainly include those that refer to hate speech. The former Code on Broadcasting RTV Programs contained a provision (Article 1.1 of the

14 Authorizations of the Agency which can be found in the Law on Communications do not en-tail a direct authorization to apply laws in the field of protection of copyright and similar, hav-ing in mind that there are special laws that regulate this field in BiH. Regarding the protection of copyright which is included in the authorizations of the Agency, it is necessary to say that Article 3, paragraph4, point d of the Law on Communications in BiH prescribes the following:4.    The Council of Ministers and the Agency according to the respective competencies as set out in this Law shall take all reasonable measures that are aimed at achieving the following objectives:  d)    That copyright and other intellectual property as well as personal data and privacy is protected;In line with their limited legal authorizations in this field, license users are obligated to respect the copyright which involves only establishes the fact that there is a contract, according to Article 17, Obligations of respecting copyrights of the Rule 42/2009. This Rule is referring to licenses for terrestrial radio-diffusion of RTV program and it states: (1) Users shall respect all duties and obligations towards any third party related to copyrights or other rights which can be the result of broadcasting protected program, in line with relevant regulations. (2) License users are obligated to have adequate contracts which provide them with right to broadcast protected program and such contracts must be submitted to the Agency on its request. The Agency will treat these contracts as confidential. 15 Article 1.4 of the Code states: Radio and television outlets shall ensure adequate accuracy, fair-Radio and television outlets shall ensure adequate accuracy, fair-ness and impartiality in editing all programs, including news programs. They must not broadcast any program which could, according to anyone’s judgment, promote interests of a political party or any other group or an individual, nor must they conduct such activities systematicaly during one period of time while excluding other political parties, groups or individuals. There should be a clear distinction between comments and news. When it comes to controversial topics related to public policy, one opinion or one stance must not prevail. https://www.parlament.ba/press/default.aspx?id=19274&langTag=bs-BA (accessed 26 March 2012).

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Code1610) that prohibited broadcasting any content which carried clear and direct

risk of encouraging ethnic or religious hate among the communities in Bosnia and Herzegovina, or whose content could cause violence and riots, encourage crime or criminal acts or to cause public damage. The violation of this provision was not-ed in eighteen cases, out of which five cases also included the violation of provi-sion prohibiting putting down religious beliefs of others (Article 1.3 of the Code17

11).

The most specific case in this time referred to Radio Sveti Georgije on May 8, 2001, that, between 20:45 and 22:02, broadcasted an interview related to the events that followed the setting of the Ferhadija Mosque’s foundation in Banja-luka. The program was broadcasted again the following day. The interview fea-tured the painter Aleksandar Sopot who commented on these events and used expressions that could be interpreted as hate speech. In the case of this pro-gram, the Agency determined that there was no editorial control whatsoever; not only did the program speak badly about religious beliefs, but it also caused a significant risk of public riots, violating Article 1.1 General and 1.3 Religion of the Code. The station was sanctioned and its license was suspended for 90 days.

The provision that deals with decency and civility in RTV stations programs was violated 18 times in both individual cases and in cases of multiple violations.

2002-2010 Period

The positive influence of the IMC with regard to regulation in the first three years was crucial for establishing the independence and professionalism of electronic media in B-H. There was a significant progress as in the following years of regulation in B-H the number of cases related to hate speech became lower. This is confirmed by the data saying that, as opposed to the 1998-2001 period, in 2002 there was only one case of violation of the hate-speech provision, whereas in 2003, there were no such violations. Between 2004 and 2010, there were 13 cases of violation of hate-speech provisions. The following chart gives an overview

16 Article 1.1 of the Code states: Program shall be in line with generally accepted standards of civility while respecting ethnic, cultural and religious differences in Bosnia and Herze-govina. Radio and television outlets shall not broadcast programs the tone and content of which: (1) carries clear and direct risk of encouraging ethnic or religious hatred among the com-munities in Bosnia and Herzegovina or which could, according to anyone’s judgment, cause violence, riots and disturbances or which could encourage crime or criminal activities. (2) carries clear and direct risk of causing public damage: this damage is defined as death, injury, damage to property or other types of violence or disturbing the usual activities of the police, medical service or other services maintaining the public order. 17 Article 1.3 of the Code: Religion and religious activities of different religious groups must not be falsely presented and a great effort must be made in order to provide correct and fair religious programs. These programs must not disparage religious beliefs of the others.

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of cases of violations of rules and regulations related to program standards (Code on Broadcasting RTV Programs and Code on Advertising and Sponsorship in Programs of RTV Stations) and obligations of respecting copyrights between 2002 and 2010, which was made based on the data in annual reports of the Agency on violations of rules and regulations given between 2002 and 2010.

Table 2: Cases of violations of the Code 2002–2010 (see Annex 1)

Observing the history of cases in the sense of the type of violation, it can be said that 2002 was a pivotal year. Compared to previous years, there was a significant decrease of violations of hate-speech provisions as well as a fading of programs that carried a risk of causing ethnic or religious hatred or public damage. From then on, most violations referred to the provision dealing with decency and ci-vility, adding up to 38 violations between 2002 and 2010.

The number of copyright violations lowered between 2002 and 2010. Compared to the period between 1998 and 2001 (when there were 21 copyright violations) there were only 6 such cases in 2002, two cases in 2003, one case in 2004 and zero in 2005. Between 2006 and 2010 there were four such cases in total.

Since 2004, when the Code on Broadcasting RTV Programs included the provision related to limitations on the periods of time of broadcasting intended for the protection of children and minors from a possibly inappropriate content, there were cases of violations where stations were not responsible regarding the ap-propriateness of program content to broadcasting time. This is how there were six cases of violation of this provision in 2004, 2005 and 2006, while the number of these cases increased in 2007 (eight in total); in 2008 there was only one such case. In 2009, there were nine cases of violating the principle of broadcasting referring to the protection of children and minors (Article 12 of the Code), and to the inappropriate content broadcast at an inappropriate time, whereas in 2010, there were three such cases.

If the obligation of saving program videos within a prescribed time and in line with rules and regulations of the Agency is not respected, then the Agency is not able to examine possible violations of rules and regulations. While there were numerous violations of this provision in the first three years (19 in total), the number of these violations decreased in 2002 showing that stations became aware of the importance of respecting this provision and made efforts to estab-lish a more adequate and more efficient program archiving. This is why, in 2002, there was only one case like this, in 2003 and 2004 there were six cases, in 2005 there were two cases and between 2006 and 2010 there were only four cases of this kind.

Beside certain program standards, applying principles of advertising and spon-sorship in line with best European practices, contributed to a further profession-

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alization of electronic media, especially in 2007. As for examples of violations, it is interesting to mention the cases of non-allowed and “deceiving” advertising noted in 2007 after the enforcement of the amended Code on Advertising and Sponsorship began. Namely, several stations (Alfa TV, BHT 1, NTV Hayat, Alterna-tive television, RTV Mostar, Tuzla television HTV Oscar, C Pink BH, RTRS, RTV FB-H) broadcasted a commercial for a new brand of cigarettes called ‘Royal’.

According to Article 3, General principles of advertising, telemarketing and sponsorship, advertising, telemarketing and sponsorship, advertisements should not be deceiving, nor should they harm the interest of consumers.. Ac-cording to Article 8 of the same principles, Advertising and telemarketing of cer-tain products, advertising and telemarketing of tobacco products is not allowed. However, the advertising campaign in the media for ‘Royal’ began in April 2007. More precisely, this was a commercial which appeared in four different versions with different messages such as “Enjoy for 24 hours,” “24 hours with you,” “Royal, nothing can replace you,” and “As if it was a first time for you and me, nothing can change the way you taste.”

The campaign started as a so called “teaser”, that is, the advertisement did not clearly state what is actually being advertised at first and all videos had the same model in it appearing in three videos in an elegant suit taking out a lighter out of his pocket with an engraved letter ‘R’ (the same type of this letter appears in all videos) and all videos at one point showed a rag of smoke. A while after the campaign started, on May 9, 2007, the media published an announcement stat-ing that Tobacco Factory Sarajevo and fashion line ‘Granoff’ signed the Contract of sponsoring a new collection of suits named ‘Royal.’ Later on it was established that all four versions of this commercial could be found on a website of Tobac-co Factory Sarajevo as a commercial for ‘Royal’ cigarettes. However, the official website of ‘Granoff’ company there was no special collection called ‘Royal,’ nor did the photos and videos showing the lines of the fashion company include photos or videos used when advertising the product called ‘Royal.’ At the same time, the announcement of cooperation between two companies in both print media and billboards in Sarajevo showed a more intensive advertising of ciga-rettes. Although the content of advertisements on public space is not under the authority of the Agency, in this specific case, the description of these advertise-ments was important for establishing the connection between TV advertising and other types of advertising the product called ‘Royal.’ The posters showed the same model with two packs of cigarettes in a dark blue packet with the name ‘Royal’ on it, with the logo “Enjoy for 24 hours” beside it. This was signed by Flavio De Salvatore, while letters FDS were in bold. The price of 2KM was also printed on the posters. The print media advertisement showed the same model in bed (without a suit), holding a piece of paper with letter ‘R’ on it and pictured in the corner two open packs of ‘Royal’ cigarettes.

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It was perfectly clear that the entire campaign referred to advertising ‘Royal’ cigarettes and that the alleged cooperation between two local companies in the promotion of this product was a result of a marketing practice called “sur-rogate advertising,” that showcases the product for which advertising is usually prohibited. The Agency concluded that the commercial for ‘Royal’ in programs, disregarding the fact that the stations claimed that it was for the fashion line ‘Royal’ of ‘Granoff’ which undoubtedly presents the cigarettes with the same name, was in fact deceiving for public and harmful to the interest of consumers in the context of the obligation of media to broadcast legal and fair advertise-ments in their programs. Also, because there were no contracts with Tobacco Factory, it actually represents advertising tobacco products clearly forbidden according to Article 8.

In the first year of enforcement of the changed rules and regulations on adver-tising and sponsorship, there were 33 violations in total; this number lowered in 2008, as there were four cases of such violation. In 2009, there were 15 and, in 2010, eleven cases of violations of advertising and sponsorship principles.

Some of more serious violations include the case of combined violations of the Code on Broadcasting RTV Programs and of the Code on Advertising and Sponsor-ship in Programs of RTV Stations such as the case with TV OBN’s reality show Big Mama House, broadcasted in 2008.

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LAWS ON PUBLIC RTV SYSTEM AND SERVICES

Amer Džihana

There are four laws that regulate public RTV broadcasting in Bosnia and Herze-govina (B-H). These are: the Law on Public Radio-Television System of B-H1 (Law on System of B-H) and the Law on Public Radio-Television Service of B-H2 (Law on BHRT) at the level of Bosnia and Herzegovina, as well as two entity laws: the Law on Public Radio-Television Service of RS3 (Law on RTRS) and the Law on Pub-lic Radio-Television Service of FB-H4 (Law on RTVFB-H). The Law on System of B-H established the Public Radio-Television System in B-H (PRTS B-H) as well as the relations among its parties:

• Radio-Television of B-H (BHRT) as the public RTV service of B-H,

• Radio-Television of the Federation of B-H (RTVFB-H) as the public RTV ser-vice of the Federation of B-H,

• Radio-Television of Republika Srpska (RTRS) as the public RTV service of Re-publika Srpska,

• Corporation of public RTV services (the Corporation).

The Law on System of B-H is the umbrella for other laws and stipulates that the laws on services should comply with its provisions. Such compliance should be achieved within 60 days, starting from the day this law is passed.5 This law aims at reaching balance between the independence of each broadcaster and their joint activities within the system. The Law on System of B-H ensures indepen-dence of public RTV services in all crucial aspects, including editorial indepen-dence and institutional autonomy.6 This means that public services indepen-dently establish their programs, manage their assets, deal with financial and employment issues, and represent broadcasters in legal proceedings. On the other hand, public RTV broadcasters are obligated to register the Corporation as a joint managing structure at the state level.

1 Law on Public Radio-Television System of B-H (Sarajevo, October 2005), Official Gazette of B-H 78/05, entered into force 8 November 2005. 2 Law on Public Radio-Television Service of B-H (Sarajevo, December 2005), Official Gazette of B-H 92/05, entered into force 28 December 2005.3 Law on Public Radio-Television Service of RS (Banja Luka, May 2006), Official Gazette of RS 49/06, entered into force 11 May 2006. 4 Law on Public Radio-Television Service of FBiH (Sarajevo, July 2008), Official Gazette of FB-H 48/08 entered into force 6 August 2008. 5 Law on Public Radio-Television System of B-H (Sarajevo, October 2005), Official Gazette of B-H 78/05, entered into force 8 November 2005, Article 3 and 44. 6 Ibid., Article 4.

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The idea was that the Corporation should conduct a number of activities on behalf of all three public RTV services. Most activities referred to coordination, or more pre-cisely to the development and coordination of legal regulation, the promotion and coordination of technical development and introducing new technologies, joint us-age of technical, financial and staff potentials, coordination of resources for gather-ing the content for news programs, joint use of archives, coordination of business and development plans as well as the management of human resources. On the other hand, the independence of the Corporation is visible in selling advertisements and other marketing products, creating strategies for multimedia services of public RTV broadcasters, establishing internal and external communication including in-ternational connections, broadcasting foreign programs, ordering public polls and examining media market, as well as providing transmission for public broadcasters.7

Basically, the entire system of public broadcasting is defined by four character-istics: autonomy, coordination, similarity, and codependence. Therefore, there should be three broadcasters with a significant level of autonomy in all key as-pects (program policy, finances, legal representation, etc.). The broadcasters also share a great number of resources through the Corporation (resources for gath-ering information for news programs, archives, etc.); they have similar internal structure (legal regulatory, human resources, business policies, etc.); and they are codependent when dealing with numerous development issues (new technolo-gies, digitalization, getting foreign programs, selling advertisements, etc.).

BASIC PRINCIPLES OF THE LAWS

Laws on public broadcasting prescribe tasks for public broadcasters and define the relations within the Public Broadcasting System and the way of managing the Sys-tem and individual broadcasters. In addition, these laws regulate the relation with the state and regulatory bodies and establish the ways of funding and the obligations of citizens related to the RTV fee. Finally, the laws determine program and advertising principles and limitations and they contain other provisions the goal of which is to establish the entire System of public RTV broadcasting in B-H as soon as possible.

a) Task

The main task of public broadcasters is providing various and truthful informa-tion about a wide sector of social events, as well as ensuring the presence of a variety of programs (educational, cultural, sports, etc.). The broadcasters should also provide correct and impartial information to citizens and make sure that news programs are primetime programs. The broadcasters should ensure the

7 Ibid., Article 6.

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availability of high quality programs for the public and encourage democratic processes in the country.8

b) Management

Managing bodies of the three public broadcasters consist of a managing board and a board of directors. While managing boards protect and represent the public interest and supervise the business and dispose of assets of public broadcasters,9 the boards of directors manage public broadcasters directly. The boards of directors consist of the Directors General of broadcasters and manag-ers of sectors10. At the Public RTV System level – as one of the joint structures of three broadcasters – there is the Board of Public RTV System11, which is also the Managing Board of the Corporation12. The Corporation also includes the Board of Directors, which, just as in the case of public broadcasters, consists of the General Director and the Director of Sector.13

Managing boards of broadcasters consist of four members who have to be citi-zens of B-H. When it comes to entity broadcasters, members must be residents of that entity, while in BHRT two board members must be from the Federation of B-H and two from Republika Srpska. Three members come from three con-stituent peoples of B-H and the fourth one is the member of the Others.14 The Managing Board of the System/Corporation has 12 members and consists of all managing board members of the three public broadcasters.

Managing board members are expected to work independently and not to receive directions from the bodies that appointed them.15 Requirements regarding the expertise of managing board members are not particularly high. While the Law on BHRT and the Law on RTVFB-H find appointing “the

8 See: Law on Public Radio-Television System of B-H (Sarajevo, October 2005), Official Ga-zette of B-H 78/05, entered into force 8 November 2005, Article 5, Law on Public Radio-Television Service of RS (Banja Luka, May 2006), Official Gazette of RS 49/06, entered into force 11 May 2006, Article 7. 9 Law on Public Radio-Television Service of B-H , Article 24; Law on Public Radio-Television Service of RS, Article 44; Law on Public Radio-Television Service of FB-H, Article 23.10 Ibid., BHRT Article 22(2), RTRS Article 43(2), RTVFB-H Article 22(2).11 Supra note 1, Article 7.12 Ibid., Article 13(5).13 Ibid., Article 13(6).14 In addition to the three main ethnic groups: Bosniaks, Serbs and Croats, as speci-fied in the Constitution of BiH, there is the categoryof “others,” where all other national minorities are placed. See: Constitution of BiH, Preamble, at http://www.dei.gov.ba/o_bih/?id=49 (accessed 23 March 2012). 15 Supra note 9, BHRT član 25(4), RTVFB-H Article 24(4), RTRS Article 45(4).

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most qualified candidates”16 sufficient, the Law on RTRS does not have this provision. On the other hand, the laws tend to disallow the influence of politics and business on the management of public broadcasters, by prescribing that managing boards members cannot take any governmental position at any level, nor can they be members of political parties. Also, the employees of public broadcasters and other similar companies, as well as other persons whose work could cause conflict of interest, cannot be the members of managing boards.17

Later on, another attempt to depoliticize the process of managing board mem-bers election was made when it was prescribed that the parliament is in charge with appointing managing boards members based on a bigger list of candidates submitted by the CRA after a transparent election process. However, this provi-sion was only kept in the Law on BHRT, while it was modified in the Law on RTRS, where the role of the CRA in election process became the role of the parliamen-tary committee. Namely, the Law on Amendments of Law on RTRS18 makes the CRA obligated to repeat the election in case the National Assembly of Republika Srpska does not appoint members from the list submitted by the CRA. On the other hand, the Law on RTVFB-H did not include this provision at all. Instead, the law states that the longer list of candidates contains committees for election and appointment of both houses of Parliament of FB-H.19

The Directors General of broadcasters and of the Corporation are appointed by the managing boards in charge after public competitions. Limitations related to managing board members are the same for General Directors. Therefore, legal provisions are put in place in order to prevent political and business influences on the election of the highest managing bodies. When it comes to ensuring national equality, legal provisions are asymmetrical. The Law on System stipulates that the president of the System Board and the General Director of the Corporation can-not be the members of the same people.20 The Law on RTVFB-H prescribes that a member of the same people cannot be General Director twice in a row.21 On the other hand, the Law on BHRT-u and the Law on RTRS do not have similar provisions.

Entity laws on public RTV broadcasters also stipulate the establishment of a pro-gram council of an exclusively consultative nature.22 Limitations for appointing the managing boards members are also applied to appointing the council members.

16 Supra note 2 and 4, BHRT Article 26, RTVFB-H Article 25.17 Ibid.18 Law on Amendments of Law on RTRS (Banja Luka,July 2008), Official Gazette of RS 73/08. (Article 1).19 Supra note 4, Article 25.20 Supra note 1, Article 15(n).21 Supra note 4, Article 34(2). 22 Ibid., Article 29 and Supra note 3, Article 50.

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These councils should have eleven members elected after a public competition who should include representatives of a wide range of social groups. While the Law on RTVFB-H23 states that members should come from each canton, each constituent people and the others, the Law on RTRS does not stipulate any kind of territorial or national diversity regarding the members of the Council.24 Generally speaking, al-though the role of these councils is limited to being exclusively consultative, the councils can potentially participate in the creation of program plans, providing staff solutions, supervising the implementation of program norms, as well as informing the public and parliaments about the work of public RTV broadcasters.

c) Funding

Funding for regular activities of public broadcasters comes from the RTV fee and advertising. Additionally, the broadcasters can fundraise by commercializing their own services.25 The Law on System stipulates that the money coming from RTV fees as well as advertising net income should be collected and allocated as following: 50% for BHRT and 25% for each entity broadcaster.26 Expenses of the Corporation should be financed by the three broadcasters based on the usage defined by the contract. Beside this, just as the broadcasters, the Corporation can earn its incomes individually.27

However, in spite of public RTV broadcasters’ obligation to comply with the Law on System, this obligation is not fulfilled in the Law on RTVFB-H. Namely, this law stipulates that advertising income of RTVFB-H should primarily be used for fi-nancing the broadcaster’s activities and should not to be shared with others.28

An important novel feature of this law is that it defines the obligation of paying RTV tax fee as a RTV fee based on owning a radio or TV receiver.29 In this way, the obligation of financing the programs of public RTV broadcasters is not related to whether someone watches the programs of these broadcasters or whether they like them, but it belongs to all radio or TV set owners. Furthermore, the Law on System presumes that every household and every legal entity own a radio or TV set; this presumption can be denied by submitting a written statement that requires an adequate verification.30

23 Supra note 4, Article 31.24 Supra note 3, Article 50.25 Supra note 9, (BHRT) Article 20, (RTVFBiH) Article 18. and (RTRS) Article 38.26 Supra note 1, Article 23.27 Ibid., Article 14(1). 28 Supra note 4, Article 18(3).29 Supra note 1, Article 17.30 Ibid., Article 19.

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d) Program principles

Laws on public RTV broadcasting prescribe program principles and enforcement guidelines, and define program prohibitions. Program principles highlight that RTV programs serve the public and have to be in line with professional standards. Accord-ing to the Law, public service broadcasters (PSBs) are obligated to present their plans and reports on their accomplishments to both the public and parliaments, and every citizen has the right to make suggestions and complaints regarding the program of PSBs.31 Stations can serve public interest by broadcasting informative, cultural, educa-tional, entertaining and sports programs.32 Such definition of obligations rejects the objections made by those who claim that public RTV services should be limited only to programs that cannot be provided by commercial broadcasters.

The specific nature of the B-H legislation is reflected in the fact that there are provi-sions ensuring that PSBs respect the linguistic, national religious and regional speci-ficities of B-H. In that sense, the law prescribes that the programs include the three official languages and two alphabets33, as well as that program production will en-sure equal representation of programs related to the tradition of all three peoples and an adequate representation of the others.34 The law also prescribes that the broadcasters affirm cultural and other types of needs of national minorities in B-H.35

When it comes to the enforcement of program principles, the broadcasters are requested to inform the public correctly, fully, impartially, and timely. The law also emphasizes that comments must be clearly separated from the news.36 In addition, broadcasters are expected to ensure open and free debate on matters of public interest, to encourage the pluralism of ideas, to contribute to mutual understanding of those who participate in debates, to cherish different forms of art and to promote human rights and freedoms as democratic values of every society. Public RTV broadcasters are also obligated to respect copyright laws, the right to response, and the right to publish a correction.37 The law also protects the confidentiality of sources of information and prescribes that confidential sources can only be disclosed with a court order and only when it is necessary in order to prevent severe criminal acts.38

31 Ibid., Article 26. 32 Ibid.33 Ibid., Article 26(4).34 Ibid., Article 26(5).35 Ibid., Article 26(3).36 Ibid., Article 27.37 Law on Public Radio-Television System of B-H Article 35, 37 and 38; Law on Public Radio-Television Service of FB-H Article 47, 49 and 50; Law on Public Radio-Television Service of RS 33, 34 and 35.38 Ibid., BHRT Article 40, RTVFB-H Article 52, RTRS Article 36.

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Program prohibitions include encouraging and spreading hatred and discrimi-nation, glorification of violence and crime, publishing false, immoral and por-nographic content, as well as every other content that carries hidden messages of which the citizens are not aware. Prohibitions that protect psychological and physical development of children and youth are particularly emphasized.

The laws on public RTV broadcasters in B-H also contain provisions on program representation. Namely, these provisions prescribe a certain percentage of Eu-ropean and domestic programs, as well as the obligation of ordering programs from independent production and commercial outlets.39

The interesting fact about the laws on public RTV broadcasters is that they pre-scribe almost the same provisions on representations of program genres on all three broadcasters.40 This means that the basic difference between them is the fact that they are broadcasted in different areas (RTFVB-H in the Federation and RTRS in Republika Srpska), that is, that the focus of their programs is different (BHRT - international and state level, RTRS and RTVFB-H – entity perspectives). However, both presumptions are wrong to a great extent. First of all, the increase of penetration of cable and IP television made all three broadcasters available in the entire territory of B-H. Also, the provisions prescribing the entity or state character of broadcasters are not based on a clearly defined distinction that is as such recognized by the public; hence, broadcasters were not able to affirm as such either. In one word, all three broadcasters deal with the same topics and they are available in almost entire territory of B-H. At a first glance, such com-petition does not necessarily seem like a bad solution. Still, having in mind the fact that public RTV broadcasters neglect the production of diverse programs because it is simply impossible to include them in the program schedule of one channel, there is the question of whether it is necessary to produce diverse high quality contents or to compete with rather limited resources in the production of same or similar programs. In addition, it should be kept in mind that all three public RTV broadcasters are funded from RTV fees.

OTHER LEGAL PROVISIONS

Laws on service and the System define other important fields. These are the principles of advertising and sponsorship, the issues of frequencies, as well as the relation with the Communications Regulatory Agency.

39 Ibid., Article 29.40 This principle was confirmed by the License of the System which prescribed the same or at least very similar quotas regarding the production of different program genres for all three public broadcasters.

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Regulations related to advertising establish ethical principles of advertising41 and prescribe limitations of duration of advertisements,42 rules for advertising in times of elections (make free program time obligatory for the presentation of political candidates), as well as the prohibition of political advertising outside the time of electoral campaigns.43 Sponsorship provisions also tend to eliminate non-ethical practices that could allow sponsors to influence program content.44

Laws do not explicitly define frequencies as public goods used by public services, but such perspective is supported by legal provisions.45 Namely, the CRA awards frequencies to public broadcasters and also places a series of obligations before public broadcasters. The CRA issues licenses for public broadcasters, that is, the system license that covers all three public broadcasters. In the case of violation of license provisions or of other CRA rules, this Agency can apply every sanction at its disposal except suspending and revoking the license of a certain broadcaster.46

LAW AMENDMENTS

Legislators amended the laws on public RTV broadcasting several times. The Na-tional Assembly of Republika Srpska amended the Law on RTRS twice. The 2008 amendments changed the CRA’s role in the process of election of members of Managing Board of RTRS.47 Then, the 2010 amendments48 took advantage of the fact that the existing laws on System and services were not precise enough and decided that the property of RTRS was to be managed by the entity itself, and the System remained only with the role of a coordinator in this regard.

Namely, the Law on System of B-H defined the Corporation of public services of B-iH as a joint managing structure of the three B-H public broadcasters, in B-H, which referred to BHRT, RTVFB-H and RTRS. The Corporation became in charge of “managing the property and technical resources”49 on behalf of all three pub-lic broadcasters. However, the Corporation’s authorization over property is de-batable because public broadcasters are independent and have an institutional

41 Law on Public Radio-Television System of B-H, Article 30.42 Ibid., Article 31.43 Ibid., Article 32.44 Ibid., Article 34.45 Ibid., Article 9. 46 Law on Public Radio-Television Service of RS, Article 11.47 Supranota 18, (Article 1)48 Ibid.49 Law on Public Radio-Television System of B-H, Article 13, paragraph 2d.

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autonomy with regard to managing and disposing the property.50 At the same time, the laws on public broadcasters contain a provision stating that the Corpo-ration is managing the property of broadcasters.51

The abovementioned amendments changed the role and responsibilities of the Corporation in relation to RTRS. The law precisely states that the Corporation coordinates the usage and management of the property and technical resourc-es.52 Moreover, a new paragraph was added, prescribing that the National As-sembly of RS should initially approve abandoning or transferring managing to a third person that could have at their disposal movable and immovable estate of RTRS.53 The Law on Amendments of RTV System of RS also requires the Manag-ing Board of RTV Service of RS that it reaches consensus of all members when it comes to making decisions on RTRS property.54 These amendments and chang-es of the Law on RTRS gave more authority and more independence to RTRS in relation to the System of Public RTV Broadcasting in B-H.

The Parliamentary Assembly of B-H amended the Law on System of B-H55 and the Law on BHRT56 in order to ensure an equal representation of genders and avoid gender-based discrimination when appointing managing structures as well as when it comes to employment in the Corporation and BHRT.

The Parliament of the Federation of B-H did not amend the Law on RTVFB-H, but it has to be emphasized that the adopted law is not in line with the umbrella Law on System of B-H and especially when it comes to allocating advertising income. RTVFB-H benefits from such provision because advertising income is particularly important for this RTV outlet and RTVFB-H income is much higher than that of the other two broadcasters. Also, this provision rejects the notion prescribed by the Law on System of B-H according to which an advertising company provides advertisements for all three broadcasters within the Corporation.57 Therefore, just as it is the case with RTRS, this provision increased the independence of the broadcaster at the expense of having a united and functioning public broadcasting system.

50 Law on Public Radio-Television System of B-H, Article 4(d); Law on Public Radio-Television Service of RS, Article 8(g).51 Law on Public Radio-Television System of B-H, Article 19(2); Law on Public Radio-Tele-vision Service of FB-H , Article 17 (2); Law on Public Radio-Television Service of RS, Article 23(2).52 Supra note 47, Article 2, paragraph 2.53 Ibid., Article 1.54 Ibid., Article 3. 55 Law on Amendments of the Law on Public Radio-Television System of B-H (Sarajevo, April 2010), Official Gazette of B-H 32/10.56 Law on Amendments of the Law on Public Radio-Television Service of B-H (Sarajevo, April 2010), Official Gazette of B-H 32/10.57 Supra note 1, Article14(3).

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DYSFUNCTIONAL SOLUTIONS

The difficult process of creating the legislative framework on public broad-casting in Bosnia and Herzegovina lasted ten years. The first steps towards the transformation of state broadcasters were taken and initiated by the Office of the High Representative (OHR) in July 1998. Later on, the OHR made several de-cisions (July 1999, October 2001, May 2002) that established the three public broadcasters in Bosnia and Herzegovina. Finally, in 2008, the Parliament of the Federation adopted the Law on RTVFB-H, which formally created the legislative framework for functioning of the entire System of Public Broadcasting. Howev-er, all initiatives for the establishment of a modern European legislative frame-work came from international community representatives while local politicians mainly acted based on the perspective of ethnic exclusiveness with a tendency of making the existing ethnic divisions legitimate or using different strategies of postponing in order to sabotage the entire process. Representatives of Croa-tian political parties were particularly dissatisfied with the legal provisions and started initiatives for the establishment of a special Croatian language channel. These efforts included the appeal made before the Constitutional Court of B-H in order to assess the constitutionality of existing laws. However, the Constitu-tional Court repudiated this appeal as unfounded.

Negotiations between the international community and local political forces resulted in complicated, incomplete and dysfunctional legal provisions. The Sys-tem of Public Broadcasting largely illustrated the dysfunctional organization of Bosnia and Herzegovina. Instead of providing a clear framework which would bring a true transformation of RTV services into public broadcasters serving all citizens, these reforms greatly contributed to putting a mask on entity broad-casters while they remained close to political centers of decision-making and dedicated their efforts to sustaining the ethnic status quo.

Finally, the implementation of law – the sore spot of all legal provisions – illus-trated the entire glory of obstruction. The Corporation of Public Broadcasting System has not been established yet and it is difficult to understand the rea-sons presented to the public in order to explain why this has not been done. The financial situation of broadcasters is bad and the degree of paid RTV fee is dissatisfactory. Movements for the boycott of paying the fee are still going on. Impartiality and completeness program principles of entity broadcasters are mainly interpreted as determined by political parties, and regulations referring to language, letters and programs reflecting the tradition of various peoples and minorities have been mainly neglected. Constant frictions among broadcasters as well as within managing and supervising boards show that broadcasters deal with their own problems and not with a quality enforcement of programs of public interest.

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Chapter 10

CODES OF JOURNALISM

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RULES AND CODES OF PROFESSIONAL E THICS OF JOURNALISMVanja Ibrahimbegović-Tihak

Ethical standards of professional journalism in B-H media are prescribed both by laws described in other chapters of this publication and by a number of codes which various actors of media community in Bosnia and Herzegovina use as a system of norms for establishing professional standards.

Codes are found at the level of regulatory bodies (the Communications Regula-tory Agency – the CRA), self-regulatory bodies (such as the Press Council) as well as at the level of individual associations of journalists.158

This text will be based on a comparative description and analysis of the main professional principles of the existing ethical codes: Code on Broadcasting RTV Program and Press Code and the Code of Honor of ‘BH Journalists.’ The first part gives a comparative overview of the most important provisions of all three codes describing and, to some extent, explaining similarities and differences among the abovementioned codes.

Comparative analysis has a thematic approach and deals with the ways in which certain general professional principles important for the freedom of the media (such as ban of hate speech, protection of privacy and protection of children and minors) are treated in all codes included in the analysis as well as the way in which media in B-H respect them in practice.

The last part of the analysis offers recommendations through which the respect of human rights and freedoms could become more advanced in the media and through the media. This could be done by advancing the understanding of the role of both regulatory and self-regulatory bodies and through the establish-ment of an independent system of monitoring the work of journalists and edi-tors in order to raise the level of respect of ethical codes.

MAIN PRINCIPLES OF CODES OF ETHICS

At the level of the Communications Regulatory Agency, agency that focuses on the content broadcasted on radio and television, the main code of ethics is the Code of Broadcasting RTV Programs created in 2008. At the level of the Press

1 The only code available to Internews team was the Code of Honor of “B-H Journal-ists”. Despite the fact that representatives of other journalists’ associations confirmed that there is a similar document at the level of the association, they did not send it to Internews team, nor did they make it publicly available on their websites or similar.

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Council, the main code of ethics is the Press Code, adopted by all journalistic as-sociations in 1999. This code is the system of norms of professional conduct and was amended and changed in the years that followed.

This code is in line with standards of European practice in journalism, consid-ering the fact that the Press Council of B-H is a member of the Association of Independent Press Councils of Europe (AIPCE). Since 2011, online media have been included in the system of self-regulation. Online media outlet accepted the norms and values that come with the membership in Press Council, includ-ing the acceptance of norms given in Press Code. The Code of Honor of ‘B-H Jour-nalists’ provides norms for standards of ethics at the level of the Association of ‘B-H Journalists’ and was adopted at the association’s meeting in 2004.

The initial provisions defining general professional principles in all codes con-tain the right to information, freedom of expression and ban on discrimination on any basis. Also, all codes invoke the acts of international law and the domes-tic legislation that ensures the abovementioned rights.

When it comes to the right to information and freedom of expression, Article 1, paragraph 2 of the Code on Broadcasting RTV Program states that: “rules that provide the conditions for ensuring the right to freedom of expression as it is stipu-lated by European Convention of Human Rights and Fundamental Freedoms as well as with other instruments given in the Constitution of B-H which at the same time respect generally accepted standards of decency, non-discrimination, fairness, ac-curacy, protection of minors and protection of privacy.”2

59 Contrary to this general approach and a wide interpretation of the purpose of Code on RTV Broadcasting, that is, ensuring freedom of expression, the other two codes provide a more de-tailed insight into the matters of freedom of expression. Therefore, the practice of journalism is the starting point of precisely these two codes.

Article 1 of the Press Code emphasizes general provisions according to which journalists and editors are obligated to follow high norms of ethics in their work, respect the needs of citizens for timely, useful and relevant information, as well as defend freedom of expression and the right to critical journalism. The Code also makes it mandatory to follow generally accepted standards of decency, re-spect cultural and religious differences in Bosnia and Herzegovina and to re-spect the human rights defined in international and domestic documents.

Articles 5 and 6 of the Code of Honor of ‘B-H Journalists’ discuss the right of jour-nalists to access information and the obligation to respect state secrets. On one hand, journalists must have access to information and can inform the public

2 Code on RTV Broadcasting (Sarajevo, 31 January 2008), Official Gazette of B-H No.20/08, entered into force in 2008. Part one – General provisions, Article 1, paragraph 2, https://www.parlament.ba/press/default.aspx?id=19274&langTag=bs-BA (accessed 26 March 2012).

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about this if this is not enabled. Publishing certain information can be sanc-tioned, but if these restrictions are too strict, the authorities must be informed. At this point, journalists have the duty to respect the ethics of public speak-ing and the culture of dialogue when they are in a public debate with other people (Article 7) as well as to treat all suggestions, recommendations, and criticism carefully and to inform the public about it (Article 8). It is a right and a duty of journalists to advocate a free flow of information (Article 9).

Beside all that has been said, all three codes more or less thoroughly deter-mine the issues of truth, objective and impartial, that is, accurate and fair re-porting. The Press Code and the Code of Honor of B-H Journalists more precisely define journalists’ duties and rights (Article 2,5,6,7 and 8 of the Press Code and Articles 2-5 of the Code of Honor of BH journalists).

While Article 2 of the Press Code defines editorial responsibility related to respecting the truth, that is, respecting the right of the public to know the truth, Articles 5-7 define the understanding of truth to a greater detail. Article 5 states that print media shall not publish false and unverified information in the form of photographs, texts and similar, nor shall they hide or keep any type of information. They are also obligated to correct false information that has been published after it is proven inaccurate and possibly to apologize. Ar-ticle 6 emphasizes the importance of making a clear distinction between com-ments, assumptions and facts in order to have professional reporting in print media, while Article 7 prescribes the obligation of providing a chance for a response possibly in the same edition in which false information or accusation was published.

Article 3 of the Code of Honor of B-H journalists states that even though journal-ists, just as all other citizens, have the right to political and other beliefs, when performing their activities, they have to be objective in their reporting of cur-rent affairs, while Article 4 defines the obligation of journalists to provide ob-jective and verified information and to reveal their source. Also, they have the requirement of disclosing the source but in this case journalists have moral, material and criminal liability for published data.

On the other hand, the Code on Broadcasting RTV Program approaches this issue in its second part called General Program Standards (Articles 3-11) and covers a wide scope of ethical norms, including: prohibition of hate speech, protection of decency, fairness and impartiality in reporting, prohibition of publishing false or deceiving content as well as the limitations on broadcast-ing violent and dangerous behavior, nudity, erotica and pornography. Also, this part of the Code prescribes the obligation of warning the audience of cer-tain program content.

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SPECIFICITIES OF THREE CODES

Beside similar points of the three codes that have been mentioned it is also im-portant to point out their differences. These codes differ in a great number of elements: structure of the code’s text, whether they regulate work in journalism based on the type of media (electronic media and print/ online media), whether the documents were passed within professional associations (in this case the nature of media does not have a primary importance – this belongs to the pro-fessional standards in journalism), etc.

Unlike the other two codes, the Code on Broadcasting RTV Program regulates specific program content in its fifth part. Among others, this includes broadcasting program content that includes paranormal abilities, exorcism or occult activities, alternative medicine and quackery. The focus is in fact on a well-balanced approach. Namely, when broadcasting such program content, the code requires comparison and em-phasis of “scientific and non-scientific assumptions related to these phenomena.”3

60 In addition, broadcasting such content as methods for solving health and other prob-lems, and offering advice to the audience is prescribed exclusively within the limit-ing period of broadcasting.461 This period is defined as “period of broadcasting certain content which should not be available to the widest scope of audience due to their na-ture, and this period of time is between 00.00 and 05.00.“5

62

The sixth part of the Code on RTV Broadcasting defines European audiovisual work as well as their share and conditions of radio and TV broadcasting in Bosnia and Herzegovina which equals 51% of programs. On the other hand, the seventh part similarly defines what audiovisual works of B-H are, as well as their share in the program (25% of the program). Generally, the purpose of such provisions is to en-sure the diversity of program content in order to put limitations on monopoliza-tion of program by content of one type and cheaper production (such as soap operas) which have a very questionable educational, artistic, etc. value. Also, the purpose of these provisions is to establish minimum quota of content that pro-motes both the values and the identity of Europe and of Bosnia and Herzegovina.

In addition, one of the most important differences between this and the other codes is the fact that the CRA has the authority of taking certain legal measures. This means that, in line with the Communication Law of B-H, the CRA can sanction by sending oral and written warnings, fines, or even by revoking broadcasting license of electronic media for violation of provisions of the Code for RTV Broadcasting.

Contrary to this, violations of the Press Code do not have legally stipulated sanctions, nor is there an institution that would determine these sanctions. Unlike the content

3 Ibid., Part five-special program standards, Article 21.4 Ibid., Part five-special program standards, Article 21.5 Ibid., Part one-general provisions, Article 1, paragraph 12.

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of electronic media in B-H regulated by the CRA in line with the Communication Law, the content of print media is the subject of self-regulation, through the actions of Press Council. In line with this code and other acts, the Complaints Commission of the Press Council decides on controversial media content and determines whether it violated the principles of the Press Code of B-H. In case the Complaints Commission confirms that there was a violation, the media in question is obligated to publish a correction. However, it is an editorial decision whether this will happen or not.

Article 16 of the Press Code states that print media are to provide a space for complaints and publishing an official denial for published contents. Although the number of official denials increases every year since the Press Council was established, the practice showed that this is still not at a satisfactory level.

The self-regulation tradition of print media in B-H is about 11 years long. It started with the establishment of the Press Council in 2000. Since 2011, online media have become included in the self-regulation system. They accepted the obligation of respecting the Press Code and they have become involved in the work of Press Council. According to O. Zlatev, self-regulation protects the rights of journalists to be independent and impartial and to be judged for their professional mistakes by their colleagues and not the authorities.61 The goal of self-regulation is setting minimum standards for accuracy, professional ethics, protection of privacy and other rights, preserving editorial free-dom and freedom of expression, and maintaining the pluralism of ideas and opinions.

Although the Press Council cherishes these values, in addition to constant financial difficulties it also faces other problems common to self-regulatory institutions in en-tire South-East Europe: weak institutional capacities of professional media organiza-tions, a low level of acceptance by certain interest groups, especially publishers, a low level of public awareness on the existence of self-regulation mechanisms, low credibility and functionality, and a small influence they have had on media so far.

PERCEPTION OF REGULATION AND SELF-REGULATION

In this case, the explanation for such problems in implementation in practice can be found in the lack of democratic tradition. Monroe E. Price questions the efficiency of the very concept of self-regulation in societies where democratic tradition was not developed: ‘’The ideas involved in self-regulation allow a society that is comfortable about its commitment to rule of law to find and develop space where private institutions or associations are charged with the formation, implementation and enforcement of norms. In societies where the tradition has been one of arbitrariness, a gulf exists between articulation of norms and their meaning and 6 Ognian Zlatev, Media accountability systems (MAS) and their application in South East Europe and Turkey, in Professional Journalism and Self- regulation – New Media, Old Di-lemma in SEE and Turkey, Paris: UNESCO, 2011, pp.17-39.

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impact. Where corruption and nepotism have been a hallmark and where tools for testing and enforcing compliance are lacking, the very idea of self-regulation may be premature.“7

2

The public of Bosnia and Herzegovina has various perceptions of the regulation and self-regulation of media just as of the role of regulatory and self-regulatory bodies. Among all journalism workers, as well as among those who work in civil society organizations, there are different understandings of the role of regulato-ry and self-regulatory bodies as shown by the survey ‘Media situation estimate,’ —the first analytic report within the Project of strengthening independent media in B-H conducted by Internews.. Accordingly, the grades of efficiency of these bodies in carrying out their tasks also vary. Among these opinions, there is a consensus on the need for a regulator (CRA) and for a self-regulatory body (the Press Council), as well as that their activities do not bring expected results regarding advancing ethical and professional standards in media of B-H.

As it was mentioned before, after the Press Council made the decision to include online media in the system of self-regulation of media in the Press Code of B-H of 2011, also nominally norms the journalists’ work in online media. It is important to emphasize that this process is still at the very beginning. There are specified conditions under which a certain web portal is considered a medium that meets the standards of being a member of the Press Council. While the writing of this text was still in process, there were only a few web portals (not more than five) that met these criteria. Ethical questions related to internet media are the subject of a debate at global level, thus it is logical that such debate also exists in B-H, just as it is logical to expect that this debate will become more intensive in the future.

Similarly to the Press Code, final provisions of the Code of Honor of Association ‘’B-H Journalists’’ point out that journalists who work in line with the Code enjoy the support of their professional and union organization, whereas there are sanc-tions for violations of the Code prescribed by the Statute and the Rulebook. The Association ‘’B-H Journalists’’ is in charge of protecting and applying this Code.

Beside everything that has been said, Article 15 of the Press Code of B-H should also be mentioned as it states that the print media in B-H should represent public inter-est, defined in this article as ‘’action and information intended to assist the public in making their own judgments and decisions about issues and events, including ef-forts to detect or expose crimes or serious misdemeanors, and to prevent the public from being misled by some statement or action of an individual or organization.“8

3

7 Monroe E. Price, Media and Sovereignty: The Global Information Revolution and its Chal-lenge to State Power, Cambridge: MIT Press, 2002, p.101. 8 Press Code of B-H (Sarajevo, 29 April 1999), Article 15 – public interest, http://www.vzs.ba/index.php?option=com_content&view=article&id=218&Itemid=9&lang=bs (accessed 26 March 2012), the Code was amended in February 2005, in August 2006 and in December 2006 by the Press Council in Bosnia and Herzegovina and by all other

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Although the fact that this Article can be found in the Code points at a generally positive way in which the profession of journalism is defined – advocating the public interest – we should have in mind that such understanding of journalism is possible only in theory and that in practice journalism is often subordinated to influences of different interest groups, among which media owners and political parties are the most important ones. This Code (Article 12) regulates advertising and sponsorship and states that such content should be separated from editorial content. However, the Code on RTV Broadcasting does not regulate this field at all. Issues such as adver-tising and sponsorship in electronic media are regulated by the Code on Advertising and Sponsorship for Radio and Television, which in fact regulates the principles of ad-vertising, telemarketing and sponsorship of radio and television stations.

COMPARING THE MOST SIGNIFICANT STANDARDS OF THE CODE

As previously mentioned, this analysis is based on the comparison of treatment of certain categories important for freedom of expression found in three codes and it examines the application of these provisions in practice. This part of the text deals with hate speech and the protection of privacy in general, as well as the protection of children’s privacy taking into account the way in which these fields are regulated by codes and how these provisions are respected in practice.

Ban on hate speech

The ban on hate speech94 is explicitly emphasized only in the Code on Broad-

casting RTV program, which defines it as a type of speech intending to humili-ate, scare or encourage violence or prejudice against a person or a group based on their gender, race, age, nation, sexual orientation, sex/gender orientation, handicap, moral or political beliefs, socio-economic status or profession.10

5 On the other hand, the Press Code states that ‘’the press shall do its utmost not to incite or inflame hatred or inequality on any grounds (…) The press shall under no circumstances incite people to criminal acts or violence.“11

6

However, especially in the past few years, the interpretations of these provisions have differed between representatives of the profession, organizations of civil society, the public in general and the institutions in charge of the implementation of the Code.

Namely, the report of the Communications Regulatory Agency (organization in charge of the implementation of the Code on Broadcasting RTV Program) showed

associations of journalists in Bosnia and Herzegovina. 9 Supra note 2, Part two, Article 2.10 Ibid., Part one, Article 2.11 Press Code of B-H, Article 3.

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that, in 2010, there were no cases of violation of this article of the Code.127 On the

other hand, in 2010, the public often stated that the CRA was responsible for not sanctioning contents that, according to some interpretations, had characteris-tics of hate speech. Most often, such accusations were made by media represen-tatives in Republika Srpska who asked for sanctioning the content broadcasted in program of Federal Television ‘’60 minuta.” Moreover, some politicians openly accused the CRA if ‘’justifying inciting rhetoric.”13

8

However, Dunje Mijatović, the OSCE representative for freedom of media stated that if we take into account the definition of this concept14

9 and the practice of the European Court, we can hardly speak about the rise of hate speech in B-H. But what can be found is manipulation of this term in order to achieve some po-litical interests. ‘’What certainly can be found in our political and generally social discourse is a bitter struggle for power and positions using every possible tool, hence every criticism is instantly stated to be hate speech, attack on national treasure and similar. Every criticism of an individual is seen as an attack on the entire people – therefore, hate speech is not rising, it is the intentional manipu-lation which gives an impression of us being surrounded by hatred and not by crime, corruption, unemployment and poverty.”15

10

The Complaint Commission of the Press Council that decides on complaints submitted to this institution, found violations of Article 3 of the Press Code (in-citing journalism) on several occasions in 2010. Although there were several complaints, two cases drew the attention of the public. As the Complaints Com-mission later established, violations of the Code repeated as new information about these cases were repeatedly published. The first case is the one of jour-nalist Duška Jurišić, who complained four times to the Press Council because of the inciting content in a series of articles published by Dnevni avaz between December 23, 2009 and February 12, 2010.16

11 Each complaint stated that there 12 Communications Regulatory Agency, Report on violations of rules in 2010, http://www.rak.ba/bih/results.php?searchinput=Izvje%C5%A1taj+o+slu%C4%8Dajevima+kr%C5%A1enja+pravila+u+2010&submit=Tra%C5%BEi (accessed 27 March 2012).13 Nezavisne novine, RAK pravda huškačku retoriku (The CRA justifies a stiring-up rheto-ric), 17 March 2011, No. 4516, p. 5, quote of Aleksandar Džombić.14 According to the definition of the Council of Europe, hate speech is speech which en-courages discrimination and/or violence towards another person or a group based on any type of difference. This definition is confirmed in the practice of the European Court by requiring that along with proving hate speech is should also be proved that there is a direct danger of the violence which could be caused by such speech (op.a. V.I.T.).15 Mijatović, Dunja ‘’Nije u porastu govor mržnje, već manipulacije: intervju sa Dunjom Mijatović“ (Hate speech is not increasing, it is manipulations: interview with Dunja Mijatović), Duška Jurišić, Dani No. 743, (9 September 2011).16 Meetings of the Complaints Commission of the Press Council in B-H regarding all four texts in Dnevni avaz, held in 2010, and the decision on the text published on 23 Decem-ber 2009, all belong to statistical data of 2010 (op.a. V.I.T.).

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was hate speech and the violation of Article 3 of the Press Code.

However, according to the decisions of the Complaints Commission,1712 the pro-

cedure was not complete since the complainant did not contact the editorial of-fice and did not ask for correction before submitting the complaint to the Press Council. Still, the decisions emphasize that procedural omissions did not change the fact that these texts severely violated Article 3 of the Code.18

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The second case refers to a public debate between journalist and publicist Fat-mir Alispahić and writer Marko Vešović, published in weekly newspaper ‘’Dani“ in column ‘’Reactions’’ between May 7 and 21, 2010. Fatmir Alispahić filed a com-plaint. According to the decisions of the Complaints Commission of the Press Council in all cases solved by self-regulation, that is, by publishing a retraction, both people in this case severely violated the Code (Article 1 - General Provi-sions, Article 3 – Incitement and Article 4 – Discrimination).19

14

Article 19 of the Code of Honor of “B-H Journalists” stipulates refraining from pub-lishing “pejorative qualifications related to race, skin color, religion, gender or sexual orientation, and every physical or mental shortcoming...”20

15 This article does not explicitly treat hatred or encouraging hatred or actions in which they could di-rectly result. Activities of this Association that are the response to Code violations in these and other cases are limited to public statements detecting and evaluating

17 Decisions on complaints made by Duška Jurišić related to texts published in Dnevni avaz on 23 December 2009, text ‘’Tiraž ‘Avaza’ nije pao, pala je struka na FTV-u“ (Cir-culation of Avaz is not getting lower, it is the expertese on FTV), complaint 383/10; 20 January 2010, text ‘’Duška Jurišić smijenjena, antibošnjačka politika ostaje“ (Duška Jurišić removed from her position, anti-Bosniak policy remains), complaint 384/10; 1 February 2010, text ‘’Duška Jurišić i dalje bjelkinja“ (Duška Jurišić is still white), com-plaint 385/10; 12 February 2010, text “Duška Jurišić ukljanjala je nepodobne Bošnjake” (Duška Jurišić removed unsuitable Bosniaks), complaint 386/10. All complaints available at: http://www.vzs.ba/index.php?option=com_content&view=category&id=22:kratak-pregled-albi-po-godinama&Itemid=23 (accessed 27 March 2012). 18 Ibid.19 Decisions on complaints of Fatmir Alispahić regarding texts published in B-H Dani magazine, 7 May 2010, text ‘’Dvije sablasti“ (Two ghosts), complaint 419/10; 14 May 2010, text ‘’Prorok iz Jagomira“ (A prophet from Jagomir), complaint 420/10; 21 May 2010, text ‘’Nisam imbecil“ (I’m not an imbecile), complaint 421/10; ‘’Parts of Mr. Alispahić’s texts quoted in articles written by Mr. Vešović are clearly hate speech and a drastic violation of the Code in its Article 1 – General provisions, Article 3 – Incitement and Article 4 – Discrimination. Also, the vocabulary used by Mr. Vešović as a reac-tion on the hate speech is entirely inappropriate and also violates the Press Code of B-H, Article 1 – General provisions and Article 4 – Discrimination.“ http://www.vzs.ba/index.php?option=com_content&view=category&id=22:kratak-pregled-albi-po-godinama&Itemid=23 (accessed 27 March 2012).20 The Code of Honor of B-H Journalists (10 December 2004), Article 19, http://www.bhnovinari.ba/index.php?option=com_content&view=article&id=362&Itemid=223&lang=bs (accessed 27 March 2012).

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these occurrences and calling for the respect of norms and standards of the pro-fession. Stipulated sanctions vary from warnings, public warnings to exclusions from the association, but so far no member of the Association has been excluded.

In 2010, the Managing Board of ‘’B-H Journalists“ has not reacted publicly at all when it comes to violations of Article 19 of the Code. Moreover, most reactions during this year referred to public protests against violations of rights and free-doms of journalists in different concrete cases, most often against their employers or public figures and politicians who inappropriately spoke about journalists.21

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Although analyzed reports did not formally find or found very little hate speech in media, in the past year there have been many public debates about its pres-ence in the media and in public in general.22

17 The fact that there is public dis-cussion on hate speech contributes to the statement of Dunja Mijatović that hate speech has become a weapon of politicians who use media to express hate speech and manipulate the public. This way, media have become instruments serving political elites in order to achieve their political goals.

Even though there have been few cases of hate speech in print media, the cases that have been registered show that the media were used as an instrument for dealing with opponents and in the sphere of public life outside politics.

Protection of privacy and minors

Protection of privacy is extremely important in professional journalism work and, as such, it is discussed in all codes. All codes ensure the protection of privacy and explicitly determine that every violation of privacy must be justified by public inter-est.23

18 However, as the meaning of public interest is not precise, it leaves space for dif-ferent interpretations. According to the Press Code, reporting on court proceedings requires a particularly delicate approach especially when it comes to cases dealing with war crimes. Article 10 of the Code prohibits calling someone a criminal before the judgment is issued, as well as not publishing information about the repudiation of a judgment or releasing the judgment of the person in this context.

In 2010, the Communications Regulatory Agency found only one violation of Article

21 B-H Journalists, Press releases, http://www.bhnovinari.ba/index.php?option=com_content&view=category&id=62&Itemid=240&lang=bs (accessed 27 March 2012).22 This was also confirmed at a series of round tables held in Sarajevo, Mostar and Banja-luka in June 2011, organized by Internews Network. The participants came from media community, NGO sector as well as from academic community and the practice in media law. One of the conclusions was that hate speech occurred in the media in past period, because this was the way of communication of politicians in B-H, which was a regular subject of reporting and disseminating in the media. Video records from round tables is available at: www.internews.ba (accessed 27 March 2012). 23 The Code on Broadcasting RTV Program, Part four, Article 16; the Press Code, Article 9; the Code of Honor of B-H Journalists, Article 16.

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16 (Protection of privacy, general principles paragraphs (4) and (6) of the Code on Broad-casting RTV Program)24

19. Even though the report did not specify which case this was, it emphasized that the challenged statements were published on March 30, 2010 on RT-VFB-H and that the sanction for violation was a written warning for this media outlet.

When it comes to violations of the principle of protection of privacy in print media, the Press Council’s statistics show eight complaints in 2010, three of which were accepted, one was not and the rest was solved through media-tion, that is, by publishing a reaction. Out of these eight complaints, five were published in the ‘Express’ magazine and three in Dnevni avaz on Febru-ary 24, 2010. One of the accepted complaints referred to drastic violations of the right to privacy when Dnevni avaz reported on a suicide and published a photograph of the victim.25

20 The other two accepted complaints referred to the violation of Article 10 of the Press Code (inappropriate reporting about persons charged with criminal offences) found in texts published in ‘Ex-press’26

21 and Dnevni avaz.2722 In 2010, there was no case where the Association

of B-H Journalists reacted to privacy violations.

The question of protection of privacy and identity of children and minors, a special segment of protection of privacy, is also discussed in all codes for professional reporting. In all circumstances, and especially in cases of reporting on criminal of-fenses where children are committers, participants, or victims, this issue has a spe-cial place and enjoys special attention when defining professional reporting. The protection of privacy and identity is the only ethical approach to cases where chil-dren appear. However, based on the abovementioned reports of monitoring of violations of the Code for Professional Reporting in B-H, in 2010, B-H media violated the principles of protection of identity of minors and children in numerous cases.

According to the data of the Communications Regulatory Agency, there were eleven violations of these principles in 2010. In eight of these cases, the violation

24 Supra note 12.25 Press Council, Cases in 2010, an overview: Dnevni avaz in text “Srednjoškolka i njen mladić raznijeli se bombom” (A highschool girl and her boyfriend kill themselves with a bomb), 24 February 2010, complaint 387/10, http://www.vzs.ba/index.php?option=com_content&view=article&id=192:2010-349-kb&catid=22:kratak-pregled-albi-po-godinama&Itemid=23 (accessed 27 March 2012).26 Press Council, Cases in 2010, an overview: magazine Express, in text: “Nedžad Ajnadžić mora krivično odgovarati za smrt 126 patriota” (Criminal charges must be pressed against Nedžad Ajnadžić for the death of 126 patriots), 13 May 2010, complaint 422/10, http://www.vzs.ba/index.php?option=com_content&view=article&id=192:2010-349-kb&catid=22:kratak-pregled-albi-po-godinama&Itemid=23 (accessed 27 March 2012).27 Press Council, Cases in 2010, an overview: Dnevni avaz in text: ‘’Zašto smeta osnivač SBB-a?“ (Why is the founder of SBB bothering anyone?), 4 February 2010, complaint 390/10, http://www.vzs.ba/index.php?option=com_content&view=article&id=192:2010-349-kb&catid=22:kratak-pregled-albi-po-godinama&Itemid=23 (accessed 27 March 2012).

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of Article 14 of the Code on Broadcasting RTV Program (Reporting on criminal of-fences involving minors) occurred, whereas in three cases there was a violation of Article 12 of the Code (General Principles, the third part which deals with pro-tection of children and minors).28

23 It is important to note that all these violations happened on the same day – September 2, 2010. Media outlets that broadcast-ed the content violating the principles of protection of privacy of children and minors were: Alternativna TV, RTV FB-H, BHRT, Hayat, OBN, RTRS, RTVBN and Pink B-H. These violations were sanctioned by issuing written warnings to all outlets except TVSA, which received an oral warning.

When it comes to violations of the Press Code in the field of privacy protec-tion for children and minors, the Press Council received thirteen complaints regarding the violation of this principle in print media and, in these cases, the Complaints Commission found a violation of Article 11 (Protection of children and minors as victims of sexual abuse). At the same time, the Commission also found violations of Article 4a (Gender equality), Article 9 (Privacy), etc. Sev-en complaints referred to same case. Almost all daily newspapers published a story stating that the Minister of Security of B-H was accused of sexually abusing of a girl whose identity was revealed (as published in Nezavisne no-vine, Dnevni avaz, Glas Srpske and ‘SAN’).29

24 The other six cases also referred to instances where the identity of minor victims who suffered sexual abuse was revealed (mainly indirectly, publishing the names of caregivers or parents who

28 Supra note 12.29 “Nezavisne novine”, complaint of Organization ‘’Zdravo da ste“, regarding text ‘’Ahmetović pod istragom zbog pedofilije“ (Ahmetović under investigation because of pedophyila), 16 March 2010, complaint 398/10.“Dnevni avaz”, complaint of Organization ‘’Zdravo da ste“, regarding text ‘’Seks afera: Ahmetoviću pakuje autor lažnog spiska terorista“ (Sex affair: Ahmetović is a victim of the author of a phony list of terrorists), 17 March 2010, complaint 399/10.‘Glas Srpske’, complaint of Organization ‘’Zdravo da ste“, regarding text ‘’Ministar Sadik Ahmetović i još 16 lica bludničili nad djevojčicom“ (Minister Sadik Ahmetović and 16 other people harrass a girl), 16 March 2010, complaint 397/10.“SAN”, complaint of Organization ‘’Zdravo da ste“, regarding text ‘’Ministar Ahmetović: Ovo su mi podmetnuli“ (Minister Ahmetović: I was framed), 17 March 2010, complaint 402/10.Nezavisne novine, complaint of Association ‘’Udružene žene Banja Luka“, regarding text ‘’Dolazili po djevojčicu muškarci u modernim autima“ (Men in modern cars came to pick up a girl), 17 March 2010, complaint 405/10.‘Glas Srpske’, complaint of Association ‘’Udružene žene Banja Luka“, regarding text ‘’Mini-star Sadik Ahmetović i još 16 lica bludničili nad djevojčicom“ (Minister Sadik Ahmetović and 16 other people harrassed a girl), 17 March 2010, complaint 404/10.“SAN”, complaint of Association ‘’Udružene žene Banja Luka“, regarding text ‘’Mini-star Ahmetović: Ovo su mi podmetnuli“ (Minister Ahmetović: I was framed), 17 March 2010, complaint 403/10. All complaints are available at: http://www.vzs.ba/index.php?option=com_content&view=category&id=22:kratak-pregled-albi-pogodinama&Itemid=23 (accessed 27 March 2012).

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were also the abusers in some cases).3025

When it comes to violations of the privacy principle regarding minors and children in the Code of Honor of B-H Journalists in 2010 the Association reacted only once, in the abovementioned case of publishing the identity of the sexually abused girl, when reporting about the arrest of the rapists. The Association made a public statement and reacted against all media that published this story and revealed the identity of the victim, urging regulatory (the CRA) and self-regulatory bodies (the Press Council) to sanction these violations in line with the law.31

26

As it was shown, reports of regulatory and self-regulatory bodies do not show worrying results in the case of violation of privacy but this number increases significantly when it comes to the lack of protection of identity of children and minors. The analysis showed that the media are prepared to reveal the identity of a minor who was a victim of a sexual violence in order to discredit a certain political figure or to sell more copies.

Also, when it comes to unprofessional reporting in electronic media on criminal offenses involving minors, most sanctions of the Communications Regulatory Agency were written warnings except one case in which the sanction was an oral warning. Considering the fact that the violations infringed upon rights of children and minors who are protected by international legal documents also used by domestic legislation, the sanctions for these violations were

30 Oslobođenje, complaint of Organization ‘’Zdravo da ste“, regarding text ‘’Akcija MUP-a RS na području Bratunca i Srebrenice: Uhapšeno 17 osoba zbog veze sa prostitucijom“ (Actions of the Police of RS in the area of Bratunac and Srebrenica: 17 people arrested because of their connections with prostitution), 16 March 2010, complaint 401/10.“Nezavisne novine”, complaint of Association ‘’Udružene žene Banja Luka“, regarding text ‘’Pušteni Duraković, Huseinović, Raknić i Jokić“ (Duraković, Huseinović, Raknić and Jokić released), 18 march 2010, complaint 407/10.Press RS, complaint of Association ‘’Udružene žene Banja Luka“, regarding text ‘’Uhapšeni hodža, tri policajca i pet profesora“ (One imam, three policemen and five professors ar-rested), 17 March 2010, complaint 408/10. “Nezavisne novine”, complaint of Gender Center of the Government of RS, director Spomenka Krunić, regarding text ‘’I za rođendan bez drugara“ (No friends even on birth-day), 11 April 2010, complaint 413/10.“Nezavisne novine”, complaint of Gender Center of the Government of RS, director Spomenka Krunić, regarding text ‘’Djevojčici stiže pomoć“ (Girl will get help), 16 April 2010, complaint 414/10.“Dnevni avaz”, complaint of Jovan Divjak, executive director of association ‘’Obrazovanje gradi BiH“, regarding text ‘’Djevojčica, žrtva brojnih silovanja, ostavila tek rođenu bebu“ (Victim of numerous rapes, a girl, leaves her newborn baby), 17 December 2010, 479/10.31 B-H Journalists, Mediji prekršili kodeks objavivši identitet maloljetne žrtve lanca prosti-tucije (Media violated the Code by revealing the identity of a victim of prostitution, a minor), 17 March 2010, www.bhnovinari.ba/index.php?option=com_content&view=article&id=330%3Amediji-prekrili-kodeks-objavivi-identitet-maloljetnertve-lanca-prostitucije-&catid=62%3Asaopenja&Itemid=240&lang=bs (accessed 27 March 2012).

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inappropriately low. It is more than justified to ask whether the message sent by such actions to editors is that a sensationalist approach at the expense of protection of rights of children is allowed or justified. Although it is quite clear that this way of reporting is in directly opposition to Articles 12 and 14 of the Code on Broadcasting RTV Program, the very reaction of the Association B-H Journalists, urging regulatory and self-regulatory bodies to react on the case of publishing the identity of minors, confirms the need of having such issues be open to public debate.

The problem of violations of ethical codes is even more evident when we take into account that analyzes reports are conditional. Specifically, although these reports are created by relevant institutions, the monitoring of violations of pro-fessional codes is not an activity systematically conducted by the CRA or the Association of B-H Journalists.

This means that the CRA (in 80% of cases) and the Press Council (in 99% of cases) process the violations of professional codes on the basis of citizen complaints regarding content published in media; citizens will bring issues to the attention of these bodies mainly when they defend their own interests and rights, or when they represent interests and rights of a certain group. As for the Association of B-H Journalists, their activities are mostly based on monitoring the numerous violations of the journalists’ rights in B-H. This association reacts by defending ethical principles of the profession only sporadically, when it comes to flagrant violations of the Code of Honor. Therefore, it can be concluded that the true num-ber of violations of professional journalistic codes is certainly higher than the number of cases processed in the system of regulation and self-regulation. This is another fact we should keep in mind when reading this analysis. Moreover, the long procedure of treating complaints submitted to the CRA (procedure that takes about six months) renders the process of regulation more inefficient.

From the perspective of regulatory or self-regulatory bodies, these procedures are in place in order to protect freedom of expression. Namely, both institutions are reluctant to monitor media content because this can be considered a form of censorship. This precisely emphasizes the need to establish an institution that could serve as a watchdog for media content in B-H.

RECOMMENDATIONS TO ADVANCE PROFESSIONAL STANDARDS OF JOURNALISM

The goal of this analysis was to identify current problems in the sphere of ethics and professional journalism, as well as issues with respecting freedom of expression, through the lens of regulatory and self-regulatory systems. Considering the given facts, it seems that there are two recommended directions for implementing ethical standards in B-H journalism. One direction is initiating

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and developing a watchdog for monitoring media content and the second would be increasing media literacy.

Strengthening the watchdog function

It is necessary to establish, support and develop a system of continuously moni-toring media content and registering ethics violations, as well as publishing them regularly in order to bring them to the public’s attention. The most logical solution seems to be the organization of a monitoring body by independent, non-governmental, expert and/or academic groups. As there are no institutions in B-H specialized in monitoring activities, their establishment and development is another part of the domain of institutional development. There are numer-ous possibilities regarding the way in which media watchdog can be developed. The start and the basis for this is the standardization of criteria for quality me-dia content (in line with existing codes and other norms). Regular publishing of monitoring results could have an influence on both media professionals, who would avoid ethics violations, as well as on the activities of regulatory and self-regulatory bodies, which could base to some extent their reactions to code vio-lations on monitoring results. The latter would enable registering and possibly sanctioning a greater number of violations. This approach could have a direct influence on the perceptions that citizens and representatives of civil society organizations and associations of journalists have on the efficiency of these in-stitutions.

Support to media literacy

This support should actually be a support of educational activities with the ultimate goal of enabling the public to approach media content analytically in order to recognize the content which is not in accordance with professional ethics and, hence, to articulate its requests towards the media. The expected result is an increase in the quality of media content that would mainly be led by the interests of the general public and not the interests of certain narrow interest groups.

There are many different models of advancing media literacy, starting from de-veloping and introducing media literacy in educational curricula at all levels to different forms of advocacy. Along with both directions of recommended ac-tions, it is necessary to advocate the encouragement of existing systems of self-regulation and regulation of media:

• Self-regulation – implies the popularization of the Press Council’s role and encouraging the readership to react more often to Press Code violations. This activity is complementary to the process of media literacy and can be

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an additional activity in these processes.

• Regulation of electronic media – includes a constant advance of transpar-ency, independence, efficiency and expertise of the Communications Regu-latory Agency in order for the trust of public, governmental structures and media industry to reach a level that would enable this regulator to work undisturbed.

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Chapter 11

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MEDIA OWNERSHIP AND CONCENTR ATION: CONCEPTUAL AND LEGAL FR AME WORK

Šejla Jusufović

The media are the information arm of an industrialised order, the mass production of messages directed towards opinion formation or the provision of entertainment which itself contains a host of implicit values.1

27

As communication is at the heart of human interaction, the media forms one of the most vital mediums for dissemination of information, and, in order to provide credible and transparent information, different sources have to exist in order to sustain pluralism and diversity as a form of democratic communica-tion. In addition to diversity in the media, freedom and independence of mass media is also an essential component and a precondition of a democratic and open society. This notion, which in itself is an implicit value of media, is used as a reference point by the European Court of Human Rights (ECHR) when delivering judgments. According to relevant judgments of the ECHR:

Freedom of the Media (…) implies that the public has a right to a free media system, which provides overall balanced, full and varied information. The underlying idea is that a free system of this kind is an essential prerequisite for a functioning democ-racy.2

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Due to the fast-paced market environment as a result of the technological ad-vances after the 1990s, and the increased competition in the so-called digital revolution, the media industry had to cope for survival. The media sector has been transformed by converging it to the telecommunications and IT sectors, and at the same time by giving way to new interactive broadcasting services through the use of different technologies, encouraging greater diversity across the media sector. Entry barriers have been reduced in order to stimulate the free market economy and allow media corporations to compete with ease like never before. As a result, the number of broadcast channels in Europe has rap-idly increased, welcoming an array of new and diverse content producers into the media market. However, despite the explosion of media and communica-tions technology, the new competitive media landscape has shown a tendency towards greater concentration of ownership of the media in fewer and fewer hands. As Gillian Doyle states:1 O’Brien Cruise Rita, Mass Media Ownership: An Analytical Summary of Transnational and National Trends, p. 1, http://unesdoc.unesco.org/images/0003/000342/034216eb.pdf (Accessed 8 December 2011).2 Cited in OSCE Representative on Freedom of the Media, The Impact of Media Concentra-The Impact of Media Concentra-tion on Professional Journalism, Vienna: OSCE, 2003, p.15 (Bruck, A. Peter, Media Diversity in Europe: Report to the Council of Europe (Strasbourg, December 2002).

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Digitization and converging technologies have encouraged strategies of expansion, diversification and ever-increasing concentration of ownership amongst leading players in the media and communications industries.3

29

In the midst of these changes, a law on competition has been applied in order to accommodate these trends that aims not only to safeguard “a competitive mar-ket process (i.e., the efficient production of commoditized media), but also to ensure a democratic communications order.”4

30 However, this has presented Eu-ropean regulators and policy-makers with complex and difficult challenges as they are caught in a dilemma between these two principles. On the one hand, they strive to keep the competitive media market thriving, and on the other hand, they need to ensure that pluralism and diversity are not hindered by this process. Hence, the issue of regulation cannot be ignored as it is affected by the changes discussed in this paper.

The paper will first introduce the notions of pluralism and diversity and see how these terms relate to media ownership and concentration. Then, the paper will explain why it is important to care about these issues. Furthermore, the paper will examine the EU framework, its competition policy actors and instruments used when dealing with media concentration issues. The paper will continue by assessing the legal framework in Bosnia and Herzegovina by providing an overview of the rules and regulations in place. Finally, the reader will gain a com-prehensive overview of the major media ownership concentration issues, which can serve for further research and analysis on the topic.

OVERVIEW OF THE ROLE OF THE MEDIA IN A DEMOCRATIC SOCIETY

The availability of information is vital for better decision-making in a democratic and open society where individual citizens have the opportunity to be part in this process. Nevertheless, the media primarily serves as a watchdog, responsible for informing its citizens and consumers on the actions of private and public actors, by providing alternative opinions and political choices through diverse and plural-istic media outlets. Hence, the media holds an important “democracy enhancing” role in the society - that of an informant and communications facilitator.

Considering the aforementioned technological developments that contribut-ed to the growth of new, wider multimedia corporations, and the democracy-enhancing role of the media, many questions arise. How do the media cope with the digital revolution and convergence? What is the main concern when it 3 Doyle, Gillian, Media Ownership: The Economics and Politics of Convergence and Concen-tration in the UK and European Media, Glasgow: Sage Publications Ltd., 2002, p.1. 4 Ariño, Mónica, Competition Law and Pluralism in European Digital Broadcasting: Address-ing the Gaps, Communications and Strategies, no.54, 2nd quarter, (2004): p. 97.

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comes to media ownership, and to what extent? Is it in line with the principles of a democratic society that supports pluralism and diversity of viewpoints? How are these principles preserved and encouraged in a given media market?

MEDIA CONCENTRATION CONCERNS

Even though there has been some contention over the definitions of pluralism and diversity - often viewed to possess a multi-dimensional conception, plural-ism is generally used to “justify measures in support of freedom of expression or diversity of information sources.”5

31

In their research on European approaches to media ownership, Alison Harcourt and Stefan Verhulst give a comprehensive definition of a pluralistic media:

A pluralistic media is seen to meet the demands of democracy by providing citizens with a broad range of information and opinions; to represent minorities giving them the opportunity to maintain their separate existence in a larger society; to reduce the event of social conflict by increasing understanding between conflicting groups or interests; to contribute to overall cultural variety; to facilitate social and cultural change, particularly when it provides access to weak or marginal social groups.6

32

The above definition demonstrates that pluralism is indeed a broad issue, and can be viewed from different perspectives. However, the central purpose of up-holding such a term in reference to this paper is that it is a vital contributor to an open and free media system. The European Union (EU) as well as many EU states have been an ardent supporter of plurality in the media sphere.733

5 In this respect democratic communications order refers to the availability of pluralism and diversity in the media. European Commission, Pluralism and Media Concentration in the Internal Market – An Assessment of the Need for Community Action , Green Paper (Brussels, 23 December 1992), COM(92) 480final, p.14. See also Iosifides, Petros, Pluralism and Media Concentration policy in the European Union, The Public, Vol.4, 1997, p.86.6 Harcourt, Alison and Stefan Verhulst, Support for Regulation and Transparency of Media Ownership and Concentration – Russia, Study of European Approaches to Media Ownership, http://www.medialaw.ru/e_pages/publications/e-conc.htm (accessed 8 December 2011).7 For more information see: Commission Staff Working Document, Media Pluralism in the Member States in the European Union, Brussels, SEC (2007) 32, 16 January 2007, p.5 ; United Kingdom Department of Trade and Industry and Department of Culture, Media and Sport, Media Ownership Consultation Paper 2001, London, 2001, paragraph 1.3;The Green Paper was formulated to assess Community’s (EU) actions concerning concentration in the media, namely television, radio and the press. Such actions concern possible regulatory measures used to restrict consentartion in the media and safeguard pluralism.

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In order to sustain plurality of opinions and encourage diversity of content in the media market, the government imposed a framework for media ownership with set rules and regulations that protects these principles. However, aside from sus-taining these values, the framework must at the same time promote the most competitive market in order to cope with the increasing competition for media businesses and attract new investment for economical advancement.

The outcome of technological advancement and the rise in competitive market structures is evident in the increased trend towards concentrated media owner-ship as a result of market convergence.834 This trend gave rise to integrated con-glomerates across the media sector. One of the most influential and known con-glomerates in the European Union are the German Bertelsmann, Vivendi and Sky, whose activities span over various levels of industry and over several sectors.

Media concentration can occur in a number of ways and for different purposes through mergers, acquisitions, take-overs, and cross-ownership.935 In the follow-ing section the most common merger typologies will be explained.

Merger typologies

Two types of integration and mergers are often noted - horizontal and vertical. However, in his book on Media Ownership, Gillian Doyle explains one more typol-ogy, typical of media concentration, namely, the Diagonal or ‘lateral’ expansion.

Doyle points out that vertical mergers expand “either ‘forward’ into succeed-ing stages or ‘backward’ into preceding stages in the supply chain.”10

36 Hence, this kind of concentration deals with joint ownership of different stages of the production and distribution chain. The rationale behind this strategy is to reduce transaction costs by engaging in activities across various indus-tries such as the creation of media output through distribution of networks or retail of output. As Doyle states, such integration allows media players to hold control over their operating environment and can also help them avoid losing market access in important ‘upstream’ or ‘downstream’ phases.11

37 8 Market convergence occurs when broadcasting, print media and radio combine ser-vices either through mergers, acquisitions and alliances. 9 The Commission has issued the Notice on the concept of concentration under Council Regulation on the control of concentration between undertakings (1989 EC Merger Regu-lation) . This Notice serves as a guideline as to how the Commission interprets the term ‘concentration’ under the EC Merger Regulation. See: Commission Notice on the concept of concentration under Council Regulation (EEC) No 4064/89 on the control of concentra-tion between undertakings, Official Journal C 66/5, entered into force 2 March 1998 (98/C 66/02), http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:1998:066:0005:0013:EN:PDF (accessed 16 February 2012).10 Ibid., p.4.11 Supra note 3, pp.4-5.

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This can occur in the case of a television company setting up a film produc-tion company whose broadcasting rights are all transmitted by the televi-sion parent company. The vertical integrated firm holds complete control over the concurring stages of production and distribution, and thus enjoys complete flexibility to make decisions concerning investment, production and distribution.12

38 Therefore, allowing ownership of broadcast channels and services, as well as control of the means of distributing them to the audience.

Another type of vertical integration can occur in the case of a book publisher that con-trols a printing company where it publishes its books along with other clients’ books.13

39 An example in the case of vertical broadcast integration is evident in the acquisition of DirectTV (an American direct broadcast satellite service provider and broadcaster) by News Corporation (News Corp.) - the multinational media conglomerate headquar-tered in the USA. Through this integration, DirectTV is able to distribute more of its media content such as news, movies and television shows to a wider audience.

A horizontal merger occurs “when two firms at the same stage in the supply chain or who are engaged in the same activity combine forces.”14

7440 This strategy allows firms to expand their market share in order to rationalize resources and gain economies of scale. Moreover, firms that do business in the same field can benefit from joining forces by applying their skills and labor, once again making use of economies of scale. An example of horizontal integration can be seen between News Corp and the dominant Italian Telepiù pay-TV that started oper-ating via analogue-terrestrial means in 1991 and went satellite in 1996.15

41

The above typologies of media concentration can occur beyond national frontiers as well. Globalization has shifted the economy from local to global without sur-passing the media sector. As a result, media firms have become transnational own-ing corporations in various parts of the globe. Such integration has been referred to as “cross-border media concentration.” A vivid example of such concentration is evident in Rupert Murdoch’s press and pay television empire, the News Corpo-ration - the second world largest media conglomerate. As illustrated earlier, this media conglomerate owns various broadcasting service providers. In Europe, the most notorious pay TV companies such as the Italian Sky Italia, is wholly owned 12 Gambaro Marco, Vertical Integration in Media Industries, http://userpage.fu-berlin.de/~jmueller/its/conf/porto05/papers/Gambaro.pdf (accessed 14 February 2012), pp.2-3.13 Ibid., p.3.14 Doyle, Media Ownership: The Economics and Politics of Convergence and Concentration in the UK and European Media, p.4. 15 Miguel Mendes Pereira, Vertical and Horizontal Integration in the Media Sector and EU Competition Law: The ICT and Media Sectors within the EU Policy Framework, Brussels, April 7, 2003, http://ec.europa.eu/competition/speeches/text/sp2003_009_en.pdf (accessed 15 February 2012), pp.9-10.

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by News Corp., with more than 4 million subscribers. This media conglomerate also holds considerable ownership of British Sky Broadcasting (BSkyB), U.K.’s larg-est digital pay TV platform, and Germany’s leading Sky Deutschland,16

42a leading broadcaster of sports, movies, entertainment and news in Germany.

Implications of media ownership concentration

The general pluralistic perspective on media concentration is that concentration pro-vides a risk for media bias that can curtail the representation of a wide range of groups – a detrimental impact upon democratic representation. Hence, from this perspective, it is important to consider the number of media owners or controllers when stressing the importance ‘plurality in the choice of information.” Concentration can also give way to market monopoly or oligopoly. In this scenario, a large market player can tarnish the media market either by preventing new entrants into the market place, or by driving out weaker competitors. In addition, mergers and integration often mean cost cut-ting or closing down media outlets – all of which are negative consequences of me-dia ownership concentration. Alison Harcourt notes that cost cutting often leads to a “standardisation in media content, rather than diversification,”17

43 which also leads to a decrease in the variation and quantity of information sources.

Pluralism is neither a basic right nor a human right. However, according to EU prin-ciples enshrined in the Green Paper, “it is possible in the name of pluralism to refuse a broadcasting license or permission for the takeover of a newspaper, a monolithic cor-porate structure, a holding in a media company.” 18

44 Having more owners in the media market, hence reducing media concentration, “constitutes a minimum of the diversity of choice offered to the public.”19

45 In order to avoid the influence or abuse of one domi-nant opinion forming power, governments have drafted many legislative and policy documents for the purpose of guaranteeing diversity of information for the public.

THE EU APPROACH TO MEDIA OWNERSHIP CONCENTRATION

Ever since the adoption of the Single European Act in 1985201946, the European

Union has played a significant role in the regulation of European media markets

16 The News Corp. also has significant holdings in Asian’s TATA Sky and FOXTEL in Aus-tralia and New Zealand, News Corporation, http://www.newscorp.com/operations/publishing.html (accessed 15 February 2012).17 Harcourt, Support for Regulation and Transparency of Media Ownership and Concentra-tion – Russia. 18 EC Green Paper, 1992, p.15. 19 Ibid., p.19. 20 The Single European Act launched the single market programme in the European Community (European Union).

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through the European Commission (hereafter: Commission) statutory and com-petition laws.21

47 The peculiarity of the EU competition policy governing media ownership concentration is that it is situated within a multi-level political and legal system, which encompasses both the different EU institutions and the 27 EU Member States.

Overview of the main actors in the application and enforcement of EU competition policy

The area of competition policy in the EU is vested within the Commission, which plays a central role in the enforcement of the competition rules with the power to act on its own initiative or after a complaint has been filed by a Member State or a private actor. With the power of keeping checks and balance, the Commis-sion fulfills the role of “executer, judge and even legislator, and can take decisions without interference by the European Parliament or the Council of Ministers.”22

48 Nevertheless, the responsibility for the control of media concentration rests pri-marily with the national competition authorities of Member States, which retain the right to issue national laws on media ownership as recognized by Article 21 (3) of the European Community Merger Regulation (ECMR)23

49 in order to protect na-tional interest.24

50 In this case, EU Directives are produced by the Commission and implemented by Member States25

51 while the Commission oversees its implemen-tation. Even though the Commission has the power to enforce competition rules if Member States do not follow EC Treaty provisions, each Member State is given the right to make its own rules according to its media market needs as long as it does not derogate from the principles of an open and competitive market.

Apart from the Commission, Community Courts also act as important actors in the enforcement and application of EU competition policy since all decisions concerning competition are subject to judicial review. The competence to

21 Four basic types of Commission statutory laws exist: Directives, Recommendations, Resolutions and Decisions. Each law is produced by the Commission and ratified by the Council of Ministers and the European Parliament. See Harcourt, Support for Regulation and Transparency of Media Ownership and Concentration – Russia.22 Pauwels, Caroline, EU Competition Policy and Concentrations in the Media Sector, http://www.cem.ulaval.ca/pdf/UnionEuropeenne.pdf , p.2, (accessed 7 December 2011).23 Council Regulation on Control of Concentrations between Undertakings – The 1989 Merger Regulation, Official Journal L 395, entered into force 21 September 1990 (EC) No 4064/89, (Brussels, 21 December, 1989).24 One of these national interests referred to as ‘legitimate interests’ in the 1989 EC Merger Regulation is media pluralism. See: Ibid., Article 21 (4). 25 It is important to distinguish among the different types of laws available in the EU: among Directives, Regulations are laws which are immediately incorporated into na-tional law, while recommendations and resolutions are policy suggestions without any legal obligation towards Member States.

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review the legality of Commission’s competition decisions has been given to the Court of First Instance since its establishment in 1989. The primary role of this court is to provide a point of reference for ensuring correct interpretation of Treaties and Community legislation.26

52

Policy instruments for media ownership concentration

Control mechanisms for media concentration vary between Member States. However, the EU has set up particular provisions as policy instruments in order to deal with media concentrations which have shaped national policy-making. Such instruments include:

• EC antitrust provisions contained in the EC Treaty; Article 81 on restrictive practices, Article 82 on monopoly or abuse of a dominant position, Article 86 on public service, and Article 295 on competence of ownership.

• The 1989 Merger Regulation (revised in 1997 and 2004).

EC Antitrust provisions

Several of the EC Treaty articles deal with competition and aim to safeguard a competitive single market, but are also of vital importance for highlighting is-sues concerning media concentration.

Article 81 of the EC Treaty is the first provision under ”Rules on Competition” prohibiting agreements and joint practices among undertakings that prevent or distort competition in the market:

all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market.27

53

On the other hand, Article 82 of the EC Treaty makes it clear that the abuse of a dominant position by one or more undertakings is incompatible with the com-mon market, as it can negatively affect trade relations among Member States.28

54 There is a fear that this can lead to a monopoly of a dominant company, and that, once a dominant company gets hold of this power, it could engage in abusive practices such as unfair pricing, limits to production or allowing competitive dis-

26 Pauwels, Caroline, EU Competition Policy and Concentrations in the Media Sector, http://www.cem.ulaval.ca/pdf/UnionEuropeenne.pdf p.2 (accessed 8 January 2011).27 European Union Consolidated Version of the EC Treaty (Brussels, 29 December 2006), Article 81, p.73. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2006:321E:0001:0331:EN:PDF (accessed 8 January 2011).28 Ibid., Article 82, p.74.

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advantage. This provision clearly reflects EU’s commitment and concern towards media concentration issues that, if exploited, could be a detriment to competition itself. Thus, the EU legal system directs its Member States to take into account me-dia concentration issues when it comes to formulating national laws.29

55

Moreover, Article 86 of the EC Treaty states that undertakings that perform “ser-vices of general economic interest” are only subject to the rules contained in the Treaty, in so far as this does not obstruct the performance of these services.30

56 However, the meaning of general terms included in this article, such as “general economic interest” is unclear and leaves room to interpretation.31

57

Lastly, Article 195 of the EC Treaty clearly declares that ownership rules fall within the competence of Member States: “shall in no way prejudice the rules in Member States governing the system of property ownership.” As mentioned earlier, even though the Commission retains the power of checks and balance when enforc-ing competition rules, each Member State has the liberty to formulate its own rules according to its internal open market needs.

The Merger Regulation (adopted in 1989 and revised in 1997 and 2004)

The EC Merger Regulation (ECMR) lays down the conditions under which the Commission or the National Competition Authorities (NCAs) have jurisdiction over concentration issues. It was produced out of a need for a specific media concentration-regulation since the EC Treaty did not provide a specific provision for controlling mergers and its competition provisions proved insufficient to control concentration.32

58 Consequently, the Commission could only act a poste-riori against certain cases of concentration and cases on the basis of Articles 81 and 82 of the EC Treaty.33

59 “As this obviously undermined its capability to ensure free competition in the common market, the Commission has striven to obtain a priori control over concentrations since 1972.”34

60 However, those mergers without a Community dimension fall within NCAs’ jurisdiction in accordance with their

29 The Council of Europe: Control of Concentration between Undertakings – the Merger Regulation (Brussels, 21 December 1989), Official Journal L 395, entered into force 21 September 1990 (EU) No. 4064/89.30 Ibid., Article 86, clause 1, p.76. 31 Koenig, Christaian, Bartosch Andreas and Braun Jens, Daniel (eds.), EC Competition and Telecommunications Law. The Hague: Kluwer Law International, 2002, p.202. 32 See: EC Merger Regulation, 2004, point 7: “Articles 81 and 82, while applicable, accord-ing to the case-law of the Court of Justice, to certain concentrations, are not sufficient to control all operations which may prove to be incompatible with the system of undis-torted competition envisaged in the Treaty.”33 Pauwels, Caroline, EU Competition Policy and Concentrations in the Media Sector, p.2.34 Cited in Pauwels, Caroline, EU Competition Policy and Concentrations in the Media Sec-tor, p.4, footnote 3.

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domestic merger control rules.3561 A priori control means that the Commission or

NCAs have exclusive prerogative over deciding on proposed mergers by pro-nouncing on mergers beforehand.

For this reason, this regulation is regarded as the only instrument ap-plicable to media ownership monopolies that may significantly impede effective competition, particularly through the creation or strengthening of dominant positions,36

62 that is deemed incompatible with the common market.

B-H LEGAL MEDIA OWNERSHIP FRAMEWORK

As an aspiring EU Member, Bosnia and Herzegovina has adopted a market ori-entation based on the principles of free enterprise and has been active in incor-porating EU laws regarding the issue of concentration by establishing new laws and building new instruments capable of dealing with concentration issues that sustain an open and competitive market economy.

As is often the case in countries in transition, B-H‘s media market is also in its developing stage from a socialist closed-model market economy to a priva-tized market that introduced lower barriers to trade and free competition. Moreover, the transformation in the B-H market economy is coupled with complex political and administrative structures, which resulted in limited me-dia legislation. This is reflected in the weak, not to say insufficient, legal and self-regulatory framework and institutions.37

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Actors and policy instruments for B-H ownership concentration policy

The area of competition policy in B-H is vested within the B-H Council of Competition (hereafter: Council of Competition). The Council of Competition was established in 2004 as an independent public body entrusted with the responsibility of ensuring the consistent implementation of the 2001 Act on Competition. Its exclusive competence rests in deciding on the presence of

35 Summary of national rules of Member States can be found at the following link: http://www.slaughterandmay.com/media/64572/the_ec_merger_regulation.pdf (ac-cessed on 15 February, 2012). 36 Council Regulation on Control of Concentration between Undertakings – The EC Merger Regulation, Official Journal L 24, entered into force 29 January 2004 (EC) No 139/2004, (Brussels, 20 January, 2004), points 6 and 24, p.1 and p.3. 37 Jusić, Tarik, Bosnia and Herzegovina, in Media Ownership and its Impact on Media Independence and Pluralism, http://www2.cji.ro/userfiles/file/documente/04_Owner-ship_BIH.pdf, p.62 (ac cessed on 15 February, 2012).

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prohibited competition activities in the market of B-H.3864 Furthermore, the

independent Communications Regulatory Agency (CRA), established by the Communication Law of B-H, deals with the regulation of media concentration issues in B-H.39

65 The CRA enforces rules and regulations within the media mar-ket - namely, broadcasting and telecommunications sectors.

B-H Act on Competition and Council of Competition

For the first time, the Act on Competition (hereafter: Act) established a com-petition policy as one of the most important instruments and pillars in the creation and strengthening of the single free market in B-H that was appli-cable on the whole territory of B-H. The Act on Competition passed in 2001 and contained basic rules of the EC Antitrust provisions - namely, Article 81 and 82 of the EC Treaty. However, the Act did not apply to practices and resolutions of the modern European legislation, the acquis in this field.40

66 In response to this, a new Act on Competition was passed and has been in effect since July 27, 2005.41

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The new Act accommodates stipulations and regulations of EU legislation in the field of market competition (i.e. EC Merger Regulations). The Act discuss-es important issues, such as the abuse of dominant position,42

68 the definition of concentration,43

69 and naming the responsible body for promoting and pro-tecting a competitive market in B-H, the Council of Competition.

This Act regulates the rules, measures and procedures for the protection of market competition, as well as the power and duties of the Council of Competition en-trusted with the protection and promotion of market competition in Bosnia and Herzegovina.44

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In sum, the Act “ensures the effective and transparent application of the proceedings and in general, reduced level of the state intervention in this field.”45

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38 See: BiH Council of Competition, http://www.bihkonk.gov.ba/en/index.html (accessed 13 February 2012). 39 Decision of the High Representative to establish the CRA, http://www.rak.ba/eng/index.php?uid=1272017637 (accessed 15 December 2011). 40 BiH Council of Competition, http://www.bihkonk.gov.ba/en/index.html (accessed 13 February 2012). 41 Act on Competition (Sarajevo, 29 June, 2005), Official Gazette BiH No. 48/05, entered into force 27 July 2005.42 See: Ibid., Article 10 and 11.43 For further details on the allowed mergers/acquisitions among undertakings see Act on Competition, 2005, Article 12.44 Supra note 53, Article 1. 45 Supra note 52.

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Hence, B-H follows an EU legal framework in this field. According to the rules within the competition policy, the Council of Competition has the authority to enforce the Act and holds exclusive jurisdiction in determining the presence of anti-competitive activities in the market, similar to the role of the European Commission. The Council’s decisions are binding on the entire territory of B-H.46

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The Communications Regulatory Agency (CRA) and its instruments

The CRA is the primary actor for regulating concentration issues in the broad-casting and telecommunications sectors and, at the same time, is committed to “the protection of freedom of expression and diversity of opinion while respecting generally accepted standards of decency, non-discrimination, fairness, accuracy, and impartiality.”47

73 From the following rules and policies, it can be noted that the EU principles of media pluralism, freedom of expression and free competi-tion are incorporated into B-H law as primary regulatory principles.

It is important to discuss the policies regarding the B-H broadcasting sector4874

and its objectives. One of the guiding principles of the broadcasting sector is the control of media concentration and the protection of pluralism as a result of a boom in media communications.49

75 At the same time, it strives to ensure a free and open competitive market environment by promoting minimum regulation of the broadcasting sector50

76 in order to allow the sector to deliver the best qual-ity services at low prices. In the case of electronic communications, the sector policy granted the CRA the a task of eliminating “any kind of monopoly and regu-lation and to promote competition in the use of electronic communications and net-works and the provision of electronic communication services.“51

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A specific rule on media concentration and cross-ownership5278 was formulated

in late 2003 by the CRA for electronic and print media. The rule formed an inte-gral part of the B-H Communication Law, offering clear criteria for the prevention

46 See Supra note 53, Article 40 (2). As some items and matters on competition are defined in gen-eral by the Act on Competition, the Council of Competition has drafted several by-law acts (deci-sions) which closely define certain matters separately. For more information see BiH Competition Council Laws, http://www.bihkonk.gov.ba/en/index.html (accessed 13 February, 2012). 47 Ibid., Article 4, point 1(a). 48 Translated title: Broadcasting sector policy of BiH, http://rak.ba/bih/index.php?uid=1269441148 (accessed 5 December 2011). 49 Ibid., Article 1, clause 2, p.2.50 Ibid., p.3.51 Ibid., p.7. 52 Translated title: Rule No. 21/2003 Concentration and Cross-ownership Over Electronic and Print Media, http://www.rak.ba/bih/download.php?name=pravilo_21/2003_o_medijskoj_koncentraciji_i_vlasnistvu_nad_elektronskim_i_stampanim_medijima_&file=1270642082.pdf&folder (accessed 5 December 2011).

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of ownership concentration in the media market. Furthermore, the need to en-sure pluralism in the media is also asserted in the Preamble of this rule, stating that the rule supports “the efforts of society that is constantly seeking increased pluralism of content, where the plurality of ownership is the first requirement for pluralism.”53

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As such, this rule stipulates that media part-owners are only allowed a limited share of 10 per cent of ownership; surpassing that limit would be considered as an impermissible concentration. The rule also states that private persons or legal entities cannot be an owner of two or more radio or TV stations that reach the same audience.54

80 However, the rule for print and electronic ownership is re-versed, allowing one or more private person or legal entity that already holds ownership of print media to take ownership of an electronic media.55

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The rule came into force on April 1, 2004; however, its validity was short-lived because a new rule was not developed within the eighteen-month validity time-frame. Up until now, the CRA did not provide any legal regulations defining me-dia ownership and concentration, illustrating the weak regulatory framework on concentration issues.

GROWTH OF CONCENTRATION AND DIVERSITY OF OPINIONS

The information and opinions in a given media market must reflect a range of different voices and views, hence, provide a plurality of information and opin-ion, in order for the public to understand an issue that is presented through the media. Through plurality, consumers and citizens are given an opportunity to choose among different views – a necessary condition for a free and open dem-ocratic society. Ensuring plurality in the media also keeps competition thriving, as it encourages the media to provide the most diverse opinions and quality content, a common goal both for the EU and B-H as it can be observed through their competition policy instruments.

Competition laws have been applied to ensure plurality in the media due to a fear that a media market with fewer owners may result in less variety of opinion and content. While it is self-evident that media mergers reduce the number of owners ultimately controlling that media, having more media firms does not necessarily result in an increased variety of content or opinion, but rather in more of the same. The EU media market has witnessed the increase in major me-dia conglomerates, fewer, but larger companies that comprise of many smaller

53 Ibid., p.1.54 Ibid., Articles 1 and 2. 55 Ibid., Article 3.

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firms operating within a conglomerate across national borders. The speed and spread of integration has allowed access to more information and diversity of sources more than ever before.

As for policy instruments, B-H had made progress towards harmonizing its laws with EU standards and principles on media ownership concentration by formu-lating the Competition Act and a body that has clear authority over its imple-mentation. However, the most recent findings put in the CRA Report from 2006 on the Review of the Communications Sector in B-H and Harmonization of EU Standards on the issue, notes that the media market in B-H, “does not look too concentrated, but rather, as a result of post-war situation, it is fragmented by the presence of numerous small and medium-sized operators.”56

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Even though the media market in B-H is not too concentrated, B-H regulatory authorities need to ensure greater commitment in creating a more concrete and responsive legal framework regarding to concentration issues. If this issue is ne-glected, they could cause negative consequences to its media market that is developing in a post-war environment, where the media plays a very important role in everyday life of ordinary consumers and citizens who depend on credible and transparent information.

56 Overview of the Communications Sector in Bosnia and Herzegovina: Harmonization with the EU standards and the role of the Communications Regulatory Agency, CARDS Project of cooperation, 2006, p.71.

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AUTHORS

Mladen SRDIĆ attended the Second High School in Sarajevo and graduated from the Faculty of Law in Sarajevo in 1985. From 1990 to 2003, he served as a judge in the city’s Municipal Court, where he worked on civil procedures and un-contested procedures. In 2004, he became a judge in the city’s Cantonal Court dealing with civil procedures of second instance until February 2007, when he became a judge of the Supreme Court of Federation of B-H at the Department of Administration. He gave many lectures organized by institutions in Bosnia and Herzegovina and abroad, speaking about civil law and the application of the European Convention of Human Rights and Fundamental Freedoms. He also authored numerous articles on the protection of freedom of expression.

Sevima SALI-TERZIĆ graduated from the Faculty of Law in Sarajevo in 1983 and passed the bar exam in 1988. She is currently a senior legal advisor at the Consti-tutional Court of B-H. She has worked as a lawyer and director in the organization Global Rights-Partners for Justice – B-H program; as a legal adviser in International Human Rights Law Group and ABA CEELI; as a judge in the Municipal Court of Sara-jevo; as a consultant for projects by the Council of Europe, UNDP, USAID; and is cur-rently serving as an external consultant for the Foundation Center for Public Law. Between 1998 and 2000, she was a member of the FOD Legal Center in Sarajevo and a member of Managing Board in Human Rights & Governance Grants Programs in Budapest. She has also lectured at Mediacenter Sarajevo’s “School of Strategic Communication” and on seminars about the application of the European Conven-tion before domestic courts. She co-authored the book “International documents on human rights – instruments of the Constitution of the Federation of B-H” (Center of Law in Sarajevo, 1996), and wrote the studies “Strengthening the integrity of leg-islature through advancement of the approach to justice” (UNDP, 2011) and “Much wrangling about Bosnia and Herzegovina’s next constitution but little real debate” (Europe’s World, 2007). Sevima has also co-authored numerous studies, notably: “International policies of support to countries of South-East Europe – lessons (non-)learned in B-H” (FOD B-H, 2002), “Women and the media” (B.a.B.e., Zagreb, 2005), “As-sessment of democracy in B-H” (FOD B-H, 2005), “Study of compatibility of laws and practices of B-H with the requirements of convention of human rights” (Council of Europe, 2006), and “Strategies of exclusion: hate speech in B-H public” (Mediacentar Sarajevo, 2010).

Mirjana NADAŽDIN-DEFTERDAREVIĆ has been working as an associate pro-fessor at the Law Faculty of University Džemal Bijedić in Mostar since 2006. She

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teaches introduction to the study of state and law, theory of law, human rights law, media law and rhetoric. Her academic work focuses on the theory of law and human rights. She has written four books: the monography “Right to information in societies in transition with a special reflection on countries of former Yugoslavia” (2004), and the textbooks “Media law: necessity of limited freedom” (2006), “Eu-ropean Convention according to practice of the European Court of Human Rights” (2007), and the “Introduction to rhetoric” (currently printed). She co-authored the publication “Promotion of reform of the system of child protection at central and local level in B-H” (2006) and the practicum “Human rights” (2009). She has also published more than 20 scientific and professional papers and she participated in several research projects. Along with her academic work, she is actively in-volved in projects of international and local non-governmental organizations which promote civil society, human rights and democracy.

Libby MORGAN she received an MA in International Relations, with a concen-tration in Media and Communications, from Columbia University’s School of In-ternational and Public Affairs in 2006. Libby worked as the Associate Director at the Annenberg School of Communications until March 2012. At Annenberg, she supported the development, planning and administration of all CGCS activities, including research efforts, policy work, conferences, and training programs. She still works on the Center’s publication initiatives, including the publication of Measuring Press Freedom; Broadcasting, Voice and Accountability; and Owning the Olympics: Narratives of the New China.

Helena MANDIĆ started her career in media law as a deputy of the Head of the Legal Department of Independent Media Commission, later called the Commu-nications Regulatory Agency, in 1998. Over the years, Helena held different posi-tions in the Agency, becoming the Assistant Director of the Broadcasting Sector in 2010. She was involved in the creation of all regulatory acts at the Agency in the field of broadcasting. Helena was also a member of the team representing Bosnia and Herzegovina before the Home of Human Rights in cases involving the Agency, at that time still the Independent Media Commission. Her experi-ence in media law also includes participating in the creation of the Press Code and working in mixed working groups (OSCE, OHR, IMC) to draft the Law on Protection against Defamation and to write the Freedom of Access to Information Act. Helena was also a member of a team of experts in negotiations about the Stabilization and Accession Agreement and on the B-H team on the Sub-Com-mittee for Innovations, IT Society, Social Policy and Public Health. Helena regu-larly represents the Agency on meetings of European Platform of Regulatory Bodies, Mediterranean Network of Regulatory Bodies, Standing Committee for

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Transfrontier Television, European Audiovisual Observatory and other interna-tional forums. She participates in the annual international competition for law students, “Monroe E. Price Media law Moot Court Programme,” organized by the Program for Comparative Media Law and Policy at the University of Oxford.

Vanja IBRAHIMBEGOVIĆ-TIHAK holds an MA in Human Rights and Democracy in South East Europe, a joint program between Sarajevo and Bologna universi-ties. Vanja is the Institutional Development Expert in Internews B-H. Before com-is the Institutional Development Expert in Internews B-H. Before com-Before com-ing to Internews, Vanja worked as a news reporter for BHTV and has been active in the non-governmental sector in B-H in the fields of human rights, education and media for the past seven years. Vanja was also the Editor-in-Chief of New Perspectives, a quarterly magazine issued by ACIPS, a think-tank in B-H promot-ing human rights and the development of democracy.

Šejla JUSUFOVIĆ attended the International School in Libya and studied at Eastern Mediterranean University in Northern Cyprus, where she graduated with high honor in International Relations. In 2006, she began studying for a masters at the University of Bologna, where she majored in International Relations and Politics and graduated in Interdisciplinary Studies on South-East Europe. Dur-ing her MA studies, she spent eight months at the University of Marmara in Is-tanbul, where she conducted research for her thesis on “Turkish army and the path towards European Union.” Šejla worked for the OSCE in B-H in the Depart-ment for Security Cooperation. She also served as an assistant for political and military issues in ACIPS working as an elections observer. During this time, she also worked as a freelance analyst and a member of the Internews SIM team. As part of the SIM team, she did research and provided support in monitoring and evaluating the SIM project. She speaks fluent English, French, Turkish, and Arabic, and has working knowledge of Italian.

Mehmed HALILOVIĆ is the Legal Advisor in Internews B-H. For over three decades, he has contributed to the development of the B-H media sector as a journalist and as an ombudsman for media in the Federation of Bosnia and Herzegovina for over ten years. From 1978 to 1983, Mr. Halilović was a full-time Middle East correspondent based in Cairo. After his work abroad, Mr. Halilović worked as a commentator for the Bosnian daily Oslobođenje from 1986 to 1994, and served as the paper’s editor of international news from 1983 to 1988. In 1994, he was appointed Editor-in-Chief and worked as such until 1999. In addi-tion to his work at Oslobođenje, Mr. Halilović has published articles in leading in-ternational newspapers from Switzerland, Sweden, Germany, Saudi Arabia and

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the UAE. As an ombudsman, he used his rich experience in journalism and law (he graduated from the Law Faculty in Sarajevo in 1996) to amend old laws on public information and to promote and monitor new laws on freedom of expres-sion, protection against defamation, and free access to information. Mr. Halilović was the first president of the Independent Union of Professional Journalists es-tablished in 1994 and was Chairman of the Board of the Soros Foundation in Sarajevo from 1996-1998. He has won many professional awards in Bosnia and Herzegovina and in former Yugoslavia, including Oslobođenje’s “August 30th” award for life achievements in 2000, the Bob Baker of International Federation of Journalists Award for successfully running Oslobođenje during the war, and the Independent Union of Professional Journalists of B-H Award in 1997. Mr. Halilović has been a trainer in numerous courses and workshops for journalists and public officials in B-H and the region. He is also an active participant in many local and international conferences on media, ethics in journalism, and profes-sional education.

Amer DŽIHANA holds a BA and MA degrees in journalism and communication from the University of Sarajevo, an MA in Public Policy from Central European University (CEU) with a specialization in Media, Information and Communica-tions Policy Stream, and is a PhD candidate at the University of Sarajevo. He is Director for Research and Advocacy for Internews B-H. Before coming to In-ternews, he served as the manager at the Center for Media Policy at Mediacen-tar Sarajevo. Together with Zala Volčič, he edited the book “Media and national ideologies: analysis of reporting on trials for war crimes in former Yugoslavia.” He has published several works, including: “Spinning out of control: Media coverage in the Bosnian conflict” with Michal Sladeček, “Public RTV system in B-H” with Tarik Jusić, and a policy study called “RTV system in B-H between ethnic exclusivity and long-term stability.” As a research fellow from B-H, he participated in several in-ternational projects including “Mapping Digital Media,” a study conducted in 60 countries, and INDIREG, a study on independence and the efficiency of regula-tory bodies in charge of implementing AVMS Directive.

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Annex 1 OVERVIEW OF THE CRA DECISIONS REGARDING

COMPLAINTS ON CONTENT

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Table 1: Decisions related to the complaints on program content 1998-2001

Date Station Case description Decision

4/2/99 RTV Sveti Georgije

Violating IMC Code on Editing Radio-Televi-sion Program, Article 1.1. 1000 KM fine

4/2/99 HRP Mostar Violating IMC Code on Editing Radio-Televi-sion Program, Article 1.2. 600 KM fine

4/2/99 NRTV 99 Violating IMC Code on Editing Radio-Televi-sion Program, Article 1.4.

Decision of Imple-mentation Board

4/2/99 Radio Srpsko Sarajevo

Violating IMC Code on Editing Radio-Televi-sion Program, Article 1.4.

Decision of Imple-mentation Board

14/4/99 Kanal S Violating IMC Code on Editing Radio-Televi-sion Program, Article 1.1.(2).

Broadcasting suspension

13/5/99 Erotel Violating IMC Code on Editing Radio-Televi-sion Program, Article 1.2. 2000 KM fine

13/5/99 RTV Srebrenica Violating IMC Code on Editing Radio-Televi-sion Program, Article 1.2. 800 KM fine

13/5/99 RTV Sveti Georgije

Violating IMC Code on Editing Radio-Televi-sion Program, Article 1.1. 1000 KM fine

13/5/99 Radio Srpsko Sarajevo

Violating IMC Code on Editing Radio-Televi-sion Program, Article 1.1(1) and (2) 2000 KM fine

13/5/99 RTV B-H Violating IMC Code on Editing Radio-Televi-sion Program, Article 1.2. Warning

13/5/99 NRTV 99 Violating IMC Code on Editing Radio-Televi-sion Program, Article 1.4. 1000 KM fine

13/5/99 RTV Mostar Violating IMC Code on Editing Radio-Televi-sion Program, Article 1.2. Warning

14/6/99 SRT Violating IMC Code on Editing Radio-Televi-sion Program, Article 1.1(2) 12000 KM fine

8/7/99 Radiopostaja Drvar

Violating IMC Code on Editing Radio-Televi-sion Program, Article 1.1. 800 KM fine

8/7/99 Kanal S Violating IMC Code on Editing Radio-Televi-sion Program, Article 1.6. 500 KM fine

8/7/99 TV 101 Violating IMC Code on Editing Radio-Televi-sion Program, Article 1.2. Warning

12/7/99 SRT/

DG order to read the statement

13/8/99 Erotel/

DG order to read the statement

30/9/99 Radiopostaja Drvar

Violating IMC Code on Editing Radio-Televi-sion Program, Article 1.1.

Broadcasting suspension

15/10/99 Hrvatska radio-postaja Mostar

Violating IMC Code on Editing Radio-Televi-sion Program, Article 1.1.

Broadcasting suspension

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22/10/99 Radiopostaja Drvar /

DG order to read the statement

27/10/99 Hrvatska radio-postaja Mostar /

DG order to read the statement

10/11/99 Radio Doboj Violating IMC Code on Editing Radio-Television Program, Article 4.1.

Warning

24/11/99 Hrvatska RTV Herceg Bosna

Violation of IMC of the Code o editing radio and television program Article 1.

5000 KM fine

13/12/99 NRTV Banja Luka

Violating IMC Code on Editing Radio-Television Program, Article 1.2.

1000 KM fine

11/5/00 NTV Hayat Violating IMC Code on Editing Radio-Television Program, Article 1.4.

400 KM fine

11/5/00 RTV USK Violating IMC Code on Editing Radio-Television Program, Article 1.2.

900 KM

9/6/00 Radio Fern Violating IMC Code on Editing Radio-Television Program, Article 1.2.

500 KM fine

19/6/00 RTV B-H Violating IMC Code on Editing Radio-Television Program, Article 1.4.

1000 KM fine

19/6/00 OBN Violating IMC Code on Editing Radio-Television Program, Article 1.4.

300 KM fine

6/7/00 NTVD AD Doboj

Violating IMC Code on Editing Radio-Television Program, Article 1.4.

300 KM fine

7/9/00 Kanal S Violating IMC Code on Editing Radio-Television Program, Article 1.1. (1)

5000 KM fine

7/9/00 RTV Srebrenica Violating IMC Code on Editing Radio-Television Program, Article 1.4.

1000 KM fine

16/10/00 Kanal S Violating IMC Code on Editing Radio-Television Program, Article 1.1. (1)

Broadcasting suspension

25/10/00 NTV Studio Arena

Violating IMC Code on Editing Radio-Television Program, Article 4.1.

Warning

25/10/00 Radio Zvono Violating IMC Code on Editing Radio-Television Program, Article 4.1.

Warning

25/10/00 TV Žepče Violating IMC Code on Editing Radio-Television Program, Article 4.1.

Warning

7/11/00 HRTV Herceg Bosna

Violating IMC Code on Editing Radio-Television Program, Article 1.4.

1000 KM fine

7/11/00 Hrvatska radio-postaja Mostar

Violating IMC Code on Editing Radio-Television Program, Article 1.4.

1000 KM fine

7/11/00 HTV Mostar Violating IMC Code on Editing Radio-Television Program, Article 1.4.

1000 KM fine

8/11/00 Radio Kalman Violating IMC Code on Editing Radio-Television Program, Article 1.1.

Warning

8/11/00 Radio Studio 88

Violating IMC Code on Editing Radio-Television Program, Article 1.2.

Warning

8/11/00 RTV B-H Violating IMC Code on Editing Radio-Television Program, Article 1.4.

1000 KM fine

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8/2/01 RTV Step Violating IMC Code on Editing Radio-Television Program, Article 4.1.

400 KM fine

17/5/01 TV Simić Violating IMC Code on Editing Radio-Television Program, Article 4.1.

1000 KM fine

17/5/01 TV Gvozden Violating IMC Code on Editing Radio-Television Program, Article 1.2.

400 KM fine

17/5/01 RTV Tomislavgrad

Violating IMC Code on Editing Radio-Television Program, Article 1.1. (1)

1000 KM fine

17/5/01 Hrvatska radiopostaja Žepče

Violating IMC Code on Editing Radio-Television Program, Article 1.1. (1)

600 KM fine

17/5/01 RTV Sveti Georgije

Violating IMC Code on Editing Radio-Television Program, Article 1.1.

Broadcasting suspension

17/5/01 HTV Mostar Violating IMC Code on Editing Radio-Television Program, Article 1.1. (1)

Broadcasting suspension

17/5/01 Radio Best-Grude

Violating IMC Code on Editing Radio-Television Program, Article 1.1. (1)

800 KM fine

27/7/01 RTV Sveti Georgije

Violation of EP order regarding the suspension of broadcasting

Revocation of the license

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Table 2: Overview of violations of the Code 2002-2010

Date Station Case description Decision

07.02.’02.NRTV Banja Luka

Code on Editing Radio-Television Program, Article 1.2. 1000 KM

07.02.’02. Radio Naba Code on Editing Radio-Television Program, Article 1.1, 1.2., 1.4 1000 KM

07.02.’02. RTRSCode on Editing Radio-Television Program, Article 1.4 ;CRA Rule 02/1999 – Respecting the copyright

5000 KM

07.02.’02. TV BelCode on Editing Radio-Television Program, Article 1.2.CRA Rule 02/1999 – Respecting the copyright

1000 KM

07.02.’02. TV Vikom CRA Rule 02/1999 – Respecting the copyright 400 KM

16.05.’02.NRTV Banja Luka

Code on Editing Radio-Television Program, Article 1.2. 1000 KM

16.05.’02. TV BelCode on Editing Radio-Television Program, Article 1.2.CRA Rule 02/1999 – Respecting the copyright

1000 KM

17.06.’02. RTV FBiH Code on Editing Radio-Television Program, Article 1.2., 1.6, 1000 KM

05.09.’02. RTV FBiH Code on Editing Radio-Television Program, Article 1.4 1000 KM

22.11.’02. RTRS Code on Editing Radio-Television Program, Article 1.2 5000 KM

22.11.’02. RTV FBiHCode on Editing Radio-Television Program, Article 1.4., 2 3000 KM

22.11.’02. RTV HIT CRA Rule 02/1999 – Respecting the copyright 200 KM

22.11.’02. TV BELCRA Rule 02/1999 – Respecting the copyright;Code on Editing Radio-Television Program, Article 4.1

License suspen-sion for 30 days

06.02.’03. TV Kanal 3 Violation of provisions related to copyright 200 KM

22.05.’02.Radio Kalman

Article 4.1 «Videos of programs» of the Code and Articles 8.2.1, 8.2.2 and 15 of Conditions for License Warning

22.05.’02. TMK RadioArticle 4.1 «Videos of programs» of the Code and Articles 8.2.1, 8.2.2, 15 and 17.1 of Conditions for License

200 KM

22.05.’02. RTV FBiH Article 1.4. «Fair and impartial editing of programs» of the Code 5 000 KM

18.11.’03. PBS Article 1.2. “Decency and civility” of the CodeWarning

25.09.’03. Radio eFM Article 4.1. «Videos of programs» of the Code i Articles 8.2.1, 8.2. of Conditions for License

Warning

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25.09.’03. RTRS Violation of provisions related to copyright 5 000 KM

08.03.’04.Pink BH Company

Violation of conditions for license, Code on broadcasting RTV program in the sense of relevant provisions on copyright and 02/1999 – Respecting the copyright

500 KM

08.03.’04. RTV Alfa

Violation of the Code on broadcasting RTV pro-gram, Article 4.1 «Videos of programs», and the conditions of a long-term License for broadcasting (Articles 8.2.1, 8.2.2).

400 KM

27.05.’04. MTV Igman

Violation of Rule 02/1999 «Respecting the copy-right», Article 6 of General license conditions and the Code on broadcasting RTV program, paragraph 5 of Preamble.

500 KM

27.05.’04. MTV Igman Violation of Article 1.1 General, of the Code on Edit-ing Radio-Television Program 1000KM

27.05.’04. RTV Alfa

Violation of Article 1.2 Decency and civility of the Code on Editing Radio-Television Program, Article 4.1 Program videos of the Code on Editing Radio-Television Program and 1.1 General, as well as the License conditions (Articles 8.2.1 and 8.2.2).

6000KM

27.05.’04.RTV Vogošća

Violation of Article 1.1. “General”, of the Code on broadcasting RTV program. – disputable program «Sacrifice»

1000KM

16.09.’04.NRTV Studio 99

Violation of Article 1.2 «Decency and civility» of the Code on broadcasting RTV program – program with offensive content on RTV Alfa

1000KM

16.09.’04.Pink BH Company

Violation of the Code on broadcasting RTV pro-gram Article 1.2 Decency and civility 1.3 Limitations related to broadcasting time

5000KM

16.09.’04. RTRS Violation of Articles 1.5 «Fair and impartial editing of programs» and 1.7 «False and deceiving material», of the Code on broadcasting RTV program

6000KM

16.09.’04. TV Bel

Violation of License conditions, Article 1.2 «Decen-cy and civility» and Article 1.3 «Limitations related to broadcasting time» of the Code on broadcasting RTV program. – broadcasting a movie with inap-propriate content at inappropriate time

1000 KM

11.11.’04. Radio Gacko

Violation of Article 1.1 General, Article 1.2. Decency and civility, as well as the provisions of the Rule-book on media representation of political subjects in time of elections (Rulebook), Article 1.General provisions

2000KM

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11.11.’04. TV Simić

Violation of Articles 1.1 General, 1.2 Decency and civility of the Code on broadcasting RTV program; Article 1. General provisions; Article 3. Fair and equal representation, Article 5. Paid political advertising; Article 4 Direct addressing of the Rulebook on media representation of political subjects in time of elections.

10,000KM

22.12.’04.NRTV Studio 99

Violation of Article 1.2 Decency and civility, of the Code on broadcasting RTV program. – broadcast-ing program about Fahrudin Radončić and «Avaz», published by daily newspaper San.

2000KM

22.12.’04. RTV Alfa

Violation of Articles 4.1 Videos of programs, 1.1 General and 1.4 Religion of the Code on broadcast-ing RTV program, and Articles 8.2.1 and 8.2.2 of General license conditions – disputable program, failure to submit videos of programs.

50,000KM

22.12.’04. RTV FBiH

Violation of Article 1.5. Fair and impartial editing of programs and Article 2.1. Right to response of the Code on broadcasting RTV program –Vakufska Bank case

5000KM

30.03.’05. Radio 202 Violation of provision of Article 1.2 of the Code on broadcasting RTV program. 2000 KM

30.03.’05. RTV FBiH Violation of provision of Article 1.5 of the Code on broadcasting RTV program. Warning

24.05.’05. Radio Naba Violation of Article 1.1 General and Article 1.4 Reli-gion of the Code on broadcasting RTV program. 20,000 KM

24.05.’05. RTRSViolation of provision of Article 1.5 of the Code on broadcasting RTV program, due to broadcasting TV program

20,000

24.05.’05. TV OBN Violation of provision of Articles 1.2. and 1.3. of the Code on broadcasting RTV program 5000 KM

24.05.’05. RTV OSM

Violation of provisions of Articles 8.2.1. and 8.2.2. of General license conditions, provision of Article 4.1. Videos of programs, Article 1.5 Fair and impartial editing of programs, and Article 1.3 Limitations related to broadcasting time of the Code on broad-casting RTV program

5000 KM

20.10.’05. RTV FBiHViolation of provision of the Code on broadcasting RTV program, Article 1.5 Fair and impartial report-ing and Article 1.2 Decency and civility.

6000 KM

20.10.’05. RTV FBiHViolation of provision of the Code on broadcasting RTV program, Article 2.1 Right to response, broad-casting the program on 13 June 2005.

1000 KM

20.10.05. RTV BN

Violation of provision of Articles 1.5. Fair and impartial editing of programs, and Article 1.7. False and deceiving material of the Code on broadcast-ing RTV program

5000 KM

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20.10.’05.Radio Istočno Sarajevo

Violation of provision of Article 1.5 Fair and impar-tial editing of programs, of the Code on broadcast-ing RTV program.

2000 KM

20.10.’05.NRTV Studio 99

Violation of provisions 8.2.1. and 8.2.2. of General license conditions and provision 4.1. Videos of pro-grams of the Code on broadcasting RTV program

2000 KM

09.01.’06. RTV BNViolation of provision of the CRA Rule 02/1999 – Respecting the copyright, Chapter II, Section A.

Fine in the amount of 1000 KM

09.01.’06.HRTV Kiseljak- KISS TV

Violation of provisions of Articles 8.2.1. and 8.2.2. of General License conditions and provision of Article 4.1. Videos of programs of the Code on broadcast-ing RTV program.

Warning

09.01.’06. TV OBN

Violation of General license conditions of Article 5, as well as of the CRA Rule 02/1999 Respecting the copyright.

Fine in the amount of 6000 KM

09.01.’06. RTV FBiHViolation of the Code on broadcasting RTV pro-gram, Article 1.2 Decency and civility.

Fine in the amount of 5000 KM

08.02.’06. TV OBNViolation of the Code on broadcasting RTV pro-gram, Article 1.2 Decency and civility and Article 1.3 Limitations related to broadcasting time

Fine in the amount of 30,000 KM

08.02.’06. RTV Hit Violation of the Code on broadcasting RTV pro-gram, Article 2.1 Right to response Written warning

08.02.’06.TV Kantona Sarajevo

Violation of the Code on broadcasting RTV pro-gram, Article 1.3 Limitations related to program broadcasting

Oral warning

26.05.’06. TV OBN Violation of the CRA Rule 02/1999 – Respecting the copyright, Section II, point A

Fine in the amount of 3000KM

26.05.’06. RTV TK Violation of the Code on broadcasting RTV pro-gram, Article 1.2 Decency and civility Written warning

26.05.’06. RTV BN Violation of the Code on broadcasting RTV pro-gram, Article 1.2 Decency and civility Written warning

20.09.’06. RTV FBiH Violation of the Code on broadcasting RTV pro-gram, Article 1.2 Decency and civility

Fine in the amount of 2000 KM

20.09.’06.NRTV Studio 99

Violation of Article 1.2. Decency and civility of the Code on broadcasting RTV program

Fine in the amount of 2000 KM

20.09.’06.Radio Kalman

Violation of Article 1.1. General of the Code on broadcasting RTV program

Fine in the amount of 1000 KM

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20.09.’06. Radio Soli Violation of Article 1.7 False and deceiving material of the Code on broadcasting RTV program

Fine in the amount of 1000 KM

20.09.’06. RTV BNViolations of the Code on broadcasting RTV program, Article 1.5 Fair and impartial editing of programs

Written warning

20.09.’06. BHT 1 Violation of the Code on broadcasting RTV pro-gram, Article 1.2 Decency and civility Oral warning

20.09.’06. RTV Mostar Violation of the Code on broadcasting RTV pro-gram, Article 1.2 Decency and civility Oral warning

13.02.’07. Radio 202Violation of the Code on broadcasting RTV pro-gram, Article 1.2 Decency and civility, and Article 1.3. Limitations related to broadcasting time

Fine 10,000 KM

13.02.’07. RTV Vikom Violation of the Code on broadcasting RTV pro-gram, 4.1 Videos of programs Written warning

23.05.’07. TV Hit Violation of the Code on broadcasting RTV pro-gram, Article 1.1. General

Fine 2000 KM

23.05.’07.Radio Istočno Sarajevo

Violation of the Code on broadcasting RTV pro-gram, Article 1.2 Decency and civility, and Article 1.3. Limitations related to broadcasting time.

Oral warning

23.05.’07. TV Alfa Violation of the Code on broadcasting RTV pro-gram, Article 2. Right to response Oral warning

23.05.’07. TV OBN Violation of the Code on broadcasting RTV pro-gram, Article 1.2 Decency and civility Written warning

23.05.’07. RTV FBiHViolation of the Code on broadcasting RTV pro-gram, Article 1.3. Limitations related to broadcasting time.

Written warning

23.05.’07.Alternativna televizija

Violation of the Code on broadcasting RTV pro-gram, Article 1.3. Limitations related to broadcasting time.

Written warning

23.05.’07. NTV HayatViolation of the Code on broadcasting RTV pro-gram, Article 1.3. Limitations related to broadcasting time.

Written warning

23.05.’07. RTV MostarViolation of the Code on broadcasting RTV pro-gram, Article 1.3. Limitations related to broadcasting time.

Written warning

23.05.’07. HTV Oscar CViolation of the Code on broadcasting RTV pro-gram, Article 1.3. Limitations related to broadcasting time.

Written warning

23.05.’07.Tuzlanska televizija

Violation of the Code on broadcasting RTV pro-gram, Article 1.3. Limitations related to broadcasting time.

Written warning

24.05.’07.Tuzlanska televizija

Violation of the Code on advertising and sponsor-ship Article 14. Schedule of advertising on television. Written warning

24.05.’07.Alternativna televizija

Violation of the Code on advertising and sponsor-ship Article 14. Schedule of advertising on television. Written warning

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24.05.’07. NTV Hayat Violation of the Code on advertising and sponsor-ship Article 14. Schedule of advertising on television. Written warning

24.05.’07. HTV Oscar C Violation of the Code on advertising and sponsor-ship Article 14. Schedule of advertising on television. Written warning

24.05.’07. RTV Mostar Violation of the Code on advertising and sponsor-ship Article 14. Schedule of advertising on television. Written warning

24.05.’07. TV OBN Violation of the Code on advertising and sponsor-ship Article 14. Schedule of advertising on television. Oral warning

24.05.’07. TV BN Violation of the Code on advertising and sponsor-ship Article 11. Parapsychology, exorcism, occultism and similar.

Oral warning

28.05.’07. TV Simić Violation of the Code on advertising and sponsor-ship Article 5. Pornography and violence. Written warning

15.06.’07. TV Kanal 3 Violation of provision of the CRA Rule 02/1999 – Respecting the copyright, Chapter II, Section A Fine 1000 KM

23.07.’07. TVAlfa

Violation of the Code on advertising and sponsor-ship Article 8., Advertising and telemarketing of certain products. Article 3. General principles of ad-vertising, telemarketing and sponsorship, and Article 14. Schedule of advertising on television.

Written warning

23.07.’07.Alternativna televizija

Violation of the Code on advertising and spon-sorship Article 8., Advertising and telemarketing of certain products. Article 3. General principles of advertising, telemarketing and sponsorship paragraph 2

Written warning

23.07.’07. BHT1

Violation of the Code on advertising and spon-sorship Article 8., Advertising and telemarketing of certain products. Article 3. General principles of advertising, telemarketing and sponsorship paragraph 2

Written warning

23.07.’07 HTV Oscar C

Violation of the Code on advertising and spon-sorship Article 8., Advertising and telemarketing of certain products. Article 3. General principles of advertising, telemarketing and sponsorship paragraph 2

Written warning

23.07.’07. NTV Hayat

Violation of the Code on advertising and spon-sorship Article 8., Advertising and telemarketing of certain products. Article 3. General principles of advertising, telemarketing and sponsorship paragraph 2

Written warning

23.07.’07. TV OSM

Violation of the Code on advertising and sponsor-ship Article 3, General principles of advertising, telemarketing and sponsorship, Article 5. Pornog-raphy and violence, Article 11. Parapsychology, exorcism, occultism and similar, Article 14. Schedule of advertising on television and Article 16. Dura-tion of advertising and telemarketing on private RTV stations.

Oral warning

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23.07.’07. RTRS

Violation of the Code on advertising and sponsor-ship Article 8. Advertising and telemarketing of certain products. and Article 3. General principles of advertising, telemarketing and sponsorship para-graph 2.

Written warning

23.07.’07. RTV FBiH

Violation of the Code on advertising and sponsor-ship Article 8. Advertising and telemarketing of certain products and Article 3. General principles of advertising, telemarketing and sponsorship para-graph 2.

Written warning

23.07.’07. RTV Mostar

Violation of the Code on advertising and sponsor-ship Article 8. Advertising and telemarketing of certain products. and Article 3. General principles of advertising, telemarketing and sponsorship para-graph 2.

Written warning

23.07.’07.NRTV Studio 99

Violation of the Code on advertising and sponsor-ship Article 14. Schedule of advertising on televi-sion and Article 3. General principles of advertising, telemarketing and sponsorship

Oral warning

23.07.’07.Tuzlanska televizija

Violation of the Code on advertising and sponsor-ship Article 8. Advertising and telemarketing of certain products. and Article 3. General principles of advertising, telemarketing and sponsorship para-graph 2.

Written warning

23.07.’07.Pink BH Company

Violation of the Code on advertising and spon-sorship Article 8. Advertising and telemarketing of certain products and Article 3. General principles of advertising, telemarketing and sponsorship paragraph 2.

Written warning

13.08.’07. TV OBN

Violation of the Code on advertising and sponsor-ship Article 8. Advertising and telemarketing of certain products and Article 3. General principles of advertising, telemarketing and sponsorship para-graph 2., Article 20. Prohibited sponsorship

Written warning

16.08.’07 Radio Foča

Violation of General conditions of license for ter-restrial broadcasting of radio program, Article 7.3 ‘Health and security measures and technical activi-ties’ and Article 14.1. ‘Respecting rules and regula-tions of the Agency’

Written warning

19.11.’07. Radio Big

Violation of Article 1.1. General and Article 1.2. Decency and civility of the Code on broadcasting RTV program. Written warning

01.02.’08. TV Alfa Violation of Articles 3. and 14. of the Code on advertising and sponsorship

Written warning

01.02.’08.Alternativna televizija

Violation of Article 1.1 General, Article 1.2 Decency and civility of the Code on broadcasting RTV program.

Written warning

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01.02.’08. TV Pink BH Violation of Article 1.2 Decency and civility Article 1.3. Limitations related to broadcasting time.

Fine in the amount of 1000 KM

01.02.’08 RTRSViolation of Article 1.1 General, Article 1.2 Decency and civility of the Code on broadcasting RTV program..

Written warning

14.10.’08 RTV Vikom

Violation of Article 4. Hate speech, of the Code on broadcasting RTV program, Articles 16.1, 16.2, 16.3 Chapter 16. Media during elections campaign of Elections Law of B-H

Fine in the amount of 20,000 KM

15.10.’08. TV OBN Violation of Article 4. Hate speech, of the Code on broadcasting RTV program.

Fine in the amount of 30,000 KM

15.10.’08.Radiopostaja Mostar

Violation of Article 5. Decency, and Article 6. Fair-ness and impartiality of the Code on broadcasting RTV program.

Fine in the amount of 2000 KM

15.10.’08. Radio Naba

Violation of Article 18 Religious program and representation of religion in programs, and Article 13. Involvement of children and minors in programs of RTV stations, of the Code on broadcasting RTV program.

Fine in the amount of 10,000 KM

19.12.’08. TV OBN Violation of Article 7. False or deceiving material of the Code on broadcasting RTV program. Written warning

21.01.’09 NTV IC Kakanj

Violation of Article 6. (Fairness and impartiality) and Article 19. (Right to response) of the Code on broadcasting RTV program.

Written warning

21.01.’09. RTRS

Violation of Article 5. (Decency) and Article 12. (Basic principles, part three – protection of children and minors) of the Code on broadcasting RTV program.

Written warning

21.01.’09. TV SA

Violation of Article 3. (General principles), Article 6. (Fairness and impartiality), and Article 13. (Involve-ment of children and minors in programs), of the Code on broadcasting RTV program.

Fine in the amount of 1000 KM

21.01.’09.RTV Vogošća

Violation of Article 12. (Basic principles) and Article 13. (Involvement of children and minors in programs, part three – protection of children and minors), of the Code on broadcasting RTV program.

Written warning

10.04.’09 NTV 101 Violation of Article 11. (Warning for the audience), of the Code on broadcasting RTV program. Written warning

10.04.’09. BHT 1 Violation of Article 6. (Fairness and impartiality), of the Code on broadcasting RTV program. Written warning

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10.04.’09. TV OBN

Violation of Article 3. paragraph 6 (General principles) and Article 21. (Paranormal abilities, exor-cism, occult activities), of the Code on broadcasting RTV programs, and Article 11. (Parapsychology, exorcism, occultism and similar), of the Code on advertising and sponsorship

Fine in the amount of 10,000 KM

10.04.’09. TV Pink BH Violation of Article 12. (Basic principles), of the Code on broadcasting RTV program. Written warning

10.04.’09. Radiopostaja Mostar

Violation of Article 19. (Right to response) of the Code on broadcasting RTV program. Written warning

10.04.’09. RTV Vogošća

Violation of Article 8. (Violence and dangerous behavior) and Article 12. (Basic principles, part three – protection of children and minors), of the Code on broadcasting RTV program.

Written warning

10.04.’09. TV OSM

Violation of Article 12. (Basic principles) and Article 13. (Involvement of children and minors in program, part three – protection of children and minors), of the Code on broadcasting RTV program.

Written warning

12.05.’09. Radio Sarajevo

Violation of Article 11. (Warning for the audience) and Article 12. (Basic principles), of the Code on broadcasting RTV program.

Oral warning

22.05.’09. TV OBNViolation of Article 7. (False and deceiving material) and Article 29. (Videos of programs), of the Code on broadcasting RTV program

Fine in the amount of 8000 KM

22.06.’09. ATV Violation of Article 11. (Parapsychology, exorcism, occultism and similar), of the Code on advertising and sponsorship

Oral warning

22.06.’09. RTV FBiH

Violation of Article 3. (General principles of advertis-ing, telemarketing and sponsorship), Article 14. (Schedule of advertising on television), Article 19. (General rules related to sponsorship) and Article 18. (Special public broadcasting services), of the Code on advertising and sponsorship

Written warning

21.07.’09. TV Bel kanalViolation of Article 4.1, 4.2. and 4.3. of General con-ditions of the license for broadcasting television programs, and Articles 5, 14 and 16 of the Code on advertising and sponsorship, and Article 10 of the Code on broadcasting RTV program.

Fine in the amount of 10.000 KM and the additional measure of license suspen-sion for 90 days

12.10.’09. ATV

Violation of Article 3. (General principles of advertis-ing, telemarketing and sponsorship) and Article 5. (Pornography and violence), of the Code on adver-tising and sponsorship.

Written warning

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12.10.’09. TV Kanal 3

Violation of Article 3. paragraph 6 and 7 (General principles), Article 8. paragraph 4 (Violence and dangerous behavior), Article 21. paragraph 1 (Paranormal abilities, exorcism, occult activities), and Article 23. (Quackery), of the Code on broadcasting RTV programs.

Written warning

12.10.’09. TV OSM

Violation of Article 10. (Erotic and pornography), of the Code on broadcasting RTV programs, and Article 5. (Pornography and violence), Article 14. (Schedule of advertising on television) and Article 16. (Duration of advertising and telemarketing on private RTV stations), of the Code on advertising and sponsorship

Written warning

12.10.’09. TV OBN Violation of Article 11. (Warning for the audience), of the Code on broadcasting RTV programs Written warning

12.10.’09. TV Pink BH

Violation of Article 3. (General principles of advertis-ing, telemarketing and sponsorship) and (Duration of advertising and telemarketing on private RTV sta-tions), of the Code on advertising and sponsorship

Written warning

09.12.’09. NTV 101Violation of Article 3. (General principles) and Article 5. (Decency), of the Code on broadcasting RTV programs

Oral warning

09.12.’09. TV OBNViolation of Article 12. (Basic principles, part three – protection of children and minors),of the Code on broadcasting RTV programs

Written warning

30.12.’09. TV VikomViolation of Article 3. (General principles) and Article 5. (Decency), of the Code on broadcasting RTV programs

Fine in the amount of 5000 KM

30.12.’09.Radiopostaja Široki Brijeg

Violation of Article 3. paragraph 2. (General prin-ciples) and Article 4. (Hate speech), of the Code on broadcasting RTV programs

Fine in the amount of 1000 KM

30.12.’09. RTRSViolation of Article 14. (Reporting on criminal acts involving the minors), of the Code on broadcasting RTV programs

Written warning

30.12.’09. RTV FBiH Violation of Article 16. (Protection of privacy, General principles), of the Code on broadcasting RTV programs

Written warning

30.03.’10. BHRT

Violation of Article 3 paragraph 6 General principles advertising, telemarketing and sponsorship, Article 8 paragraph 1 Advertising and telemarketing of certain products, and Article 20. Prohibited sponsorship, of the Code on advertising and sponsorship (Official Gazette of B-H, No.81/07).

Written warning

30.03.’10. RTV FBiH

Violation of Article 16. Protection of privacy, General principles paragraph (4) and (6) of the Code on broadcasting RTV programs (Official Gazette of B-H No. 20/08).

Written warning

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30.03.’10. TV Alfa

Violation of Article 29. Videos of programs of the Code on broadcasting RTV programs (Official Gazette of 20/08), Article 5. Pornography and violence and Article 8. Advertising and telemarketing of certain products of the Code on advertising and sponsorship, (Official Gazette of B-H 81/07).

Written warning

02.09.’10.Alternativna televizija

Violation of Article 14. Reporting on criminal acts involving the minors of the Code on broadcasting RTV programs (Official Gazette of B-H No. 20/08).

Written warning

02.09.’10. BHRTViolation of Article 14. Reporting on criminal acts involving the minors of the Code on broadcasting RTV programs (Official Gazette of B-H, No. 20/08).

Written warning

02.09.’10. RTV FBiHViolation of Article 14. Reporting on criminal acts involving the minors of the Code on broadcasting RTV programs (Official Gazette of B-H, No. 20/08).

Written warning

02.09.’10. HayatViolation of Article 14. Reporting on criminal acts involving the minors of the Code on broadcasting RTV programs (Official Gazette of B-H, No. 20/08).

Written warning

02.09.’10. OBNViolation of Article 14. Reporting on criminal acts involving the minors of the Code on broadcasting RTV programs (Official Gazette of B-H, No. 20/08).

Written warning

02.09.’10. RTRSViolation of Article 14. Reporting on criminal acts involving the minors of the Code on broadcasting RTV programs (Official Gazette of B-H, No. 20/08).

Written warning

02.09.’10. RTV BNViolation of Article 14. Reporting on criminal acts involving the minors of the Code on broadcasting RTV programs (Official Gazette of B-H, No. 20/08).

Written warning

02.09.’10. TV SAViolation of Article 14. Reporting on criminal acts involving the minors of the Code on broadcasting RTV programs (Official Gazette of B-H, No. 20/08).

Oral warning

02.09.’10. BHRT

Violation of Article 8 paragraph 1 Advertising and telemarketing of certain products, of the Code on advertising and sponsorship (Official Gazette of B-H, No. 81/07).

Written warning

02.09.’10. RTV BN

Violation of Article 12. Basic principles, in the chap-ter regarding the protection of children and minors of the Code on broadcasting RTV programs (Official Gazette of B-H 20/08).

Written warning

02.09.’10. OBN

Violation of Article 12. Basic principles (part three – protection of children and minors) of the Code on broadcasting RTV programs (Official Gazette of B-H 20/08).

Written warning

02.09.’10. Pink BH

Violation of Article 5. Decency and Article 12. Basic principles, in the chapter regarding the protection of children and minors of the Code on broadcasting RTV programs (Official Gazette of B-H 20/08).

Written warning

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17.12.’10.Tuzlanska televizija

Violation of Article 11 of the Code on advertis-ing and sponsorship in programs of RTV stations (‘Official Gazette of B-H’ No. 81/07), and Article 16.12 within chapter 16. Media during elections campaign, of Elections Law of B-H.

Oral warning

17.12.’10.

Televizija Prijedor- IPC Kozarski Vjesnik

Violation of Article 3. General principles advertising, telemarketing and sponsorship, Article 14. Schedule of advertising on television and Article 17. Duration of advertising and telemarketing on public RTV sta-tions of the Code on advertising and sponsorship in programs of RTV stations (Official Gazette of B-H, No. 81/07).

Written warning

17.12.’10. OBN

Violation of Article 14. Schedule of advertising on television of the Code on advertising and sponsor-ship in programs of RTV stations (Official Gazette of B-H, No. 81/07).

Written warning

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Decision on appeal: Applicant: ‘Slobodna Dalmacija’ d.d Split. Constitutional Court of B-H (AP 1067/06), 13 September 2007.

Decision on appeal, applicant: ‘Slobodna Dalmacija’ d.d Split. Constitutional Court of B-H, AP 1288/06, 18 October 2007.

Decision on merits and permission, applicant: Krešimir Bevanda (AP 427/06), Con- -stitutional Court of Bosnia and Herzegovina, 5 June 2007.

Decision on merits and permission, applicant: Mustafa Cerić (AP 24/09), Constitu--tional Court of Bosnia and Herzegovina, 23 September 2011.

Decision on statement of claim, applicant: Deputy of Dr. Nikola Špirić, the Chair-person of the House of Representatives of the Parliament of Bosnia and Herze-govina, the Constitutional Court of B-H 42/03, 17 December 2004.

Decision on appeal, applicants: Amarildo Gutić et al. Constitutional Court of Bos--nia and Herzegovina (AP 1881/05), 20 October 2006.

Decision on appeal, applicants: Mladen and Milan Dunđerović, the Constitutional Court of Bosnia and Herzegovina (AP 427/06), 5 June 2007.

Decision on merits, applicant: Šahin Oprašić (AP 3932/11), Constitutional Court of B-H, 9 November 2011.

Decision on merits, applicants: Senad Avdić, Danka Savić and Adnan Buturović, Constitutional Court of Bosnia and Herzegovina (No. AP 787/04), 20 December 2005.

Decision on merits, applicant: “Press-sing” d.o.o. Sarajevo and Senad Avdić (AP 1064/05), 14 March 2006.

Decision on merits, applicant: Sarajevska Pivara (Constitutional Court of Bosnia and Herzegovina: AP 1454/06), 17 November 2008.

Decision on merits, applicants: Senad Avdić, Danka Savić and Adnan Buturović, Constitutional Court of Bosnia and Herzegovina (No. AP 787/04), 20 December 2005.

Decision on merits, applicants: Radio-Television of the Federation of Bosnia and Herzegovina, Damir Kaletović, Bakir Hadžiomerović and Marija Topić-Crnoja (AP 1005/04), Constitutional Court of Bosnia and Herzegovina, 2 December 2005.

Decision on merits, applicants: Radio-Television of the Federation of Bosnia and Herzegovina and Bakir Hadžiomerović (the Supreme Court of the Federation of

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NEWSPAPER ARTICLES

BH Dani, “Dvije sablasti“ 7 May 2010.

BH Dani, “Nije u porastu govor mržnje, već manipulacije: Intervju sa Dunjom Mijatović“, 9 September 2011.

BH Dani, “Nisam imbecil“, 7 May 2010.

BH Dani, “Prorok iz Jagomira“, 7 May 2010.

Dnevni avaz, “Djevojčica, žrtva brojnih silovanja, ostavila tek rođenu bebu“, 17 December 2010.

Dnevni avaz, “Duška Jurišić i dalje bjelkinja“, 1 February 2010.

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D Dnevni avaz, “Duška Jurišić smijenjena, antibošnjačka politika ostaje“, 20 Janu-ary 2010.

Dnevni avaz, “Duška Jurišić uklanjala je nepodobne Bošnjake”, 1 February 2010.

Dnevni avaz, “Seks afera: Ahmetoviću pakuje autor lažnog spiska terorista“, 17 March 2010.

Dnevni avaz, “Srednjoškolka i njen mladić raznijeli se bombom”, 24 February 2010.

Dnevni avaz, “Tiraž ‘Avaza’ nije pao, pala je struka na FTV-u“, 23 December 2009.

Dnevni avaz, “Zašto smeta osnivač SBB-a?“, 4 February 2010.

Glas Srpske, “Ministar Sadik Ahmetović i još 16 lica bludničili nad djevojčicom“, 16 March 2010.

Glas Srpske, “Ministar Sadik Ahmetović i još 16 lica bludničili nad djevojčicom“, 17 March 2010.

Magazin Express, “Nedžad Ajnadžić mora krivično odgovarati za smrt 126 patri-ota”, 13 May 2010.

Nezavisne novine, “ RAK pravda huškačku retoriku“, 17 March 2011.

Nezavisne novine, “Ahmetović pod istragom zbog pedofilije“, 16 March 2010.

Nezavisne novine, “Djevojčici stiže pomoć“, 16 April 2010.

Nezavisne novine, “Dolazili po djevojčicu muškarci u modernim autima.“ 17 April 2010.

Nezavisne novine, “I za rođendan bez drugara“, 11 April 2010.

Nezavisne novine, “Pušteni Duraković, Huseinović, Raknić i Jokić“, 18 March 2010.

Oslobođenje, “Uhapšeno 17 osoba zbog veze sa prostitucijom“, 16 March 2010.

Press RS, “Uhapšeni hodža, tri policajca i pet profesora“, 17 March 2010.

SAN, “Ministar Ahmetović: Ovo su mi podmetnuli“, 17 March 2010.

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