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In the exercise of the powers vested in the High Representative by
Article V of Annex 10 (Agreement on Civilian Implementation of the Peace
Settlement) to the General Framework Agreement for Peace in Bosnia and
Herzegovina, according to which the High Representative is the final authority
in theatre regarding interpretation of the said Agreement on the Civilian
Implementation of the Peace Settlement; and considering in particular Article
II.1.(d) of the last said Agreement, according to the terms of which the High
Representative shall “Facilitate, as the High Representative judges necessary,
the resolution of any difficulties arising in connection with civilian
implementation”;
Recalling paragraph XI.2 of the Conclusions of the Peace
Implementation Conference held in Bonn on 9 and 10 December 1997, in which the
Peace Implementation Council welcomed the High Representative’s intention to use
his final authority in theatre regarding interpretation of the Agreement on the
Civilian Implementation of the Peace Settlement in order to facilitate the
resolution of any difficulties as aforesaid “by making binding decisions, as he
judges necessary” on certain issues including (under sub-paragraph (c) thereof)
“measures to ensure implementation of the Peace Agreement throughout Bosnia and
Herzegovina and its Entities”;
Noting that since its inception, the Peace Implementation Council has
consistently acknowledged that freedom of expression is an essential step in
developing democratic institutions and serves as a cornerstone of democracy;
Recalling that the Peace Implementation Council in the Madrid
Declaration of December 1998 noted the need for coordination in the creation of
a supportive legal framework required to allow journalists to work
professionally, independently and with security and supported the efforts by the
High Representative and the Organisation for Security and Cooperation in Europe
to protect and promote media freedom;
Bearing in mind that consistent with the exhortations of the Peace
Implementation Council and as a result of the failure of both State and Entity
officials to adopt appropriate legislation to protect journalists’ freedom of
expression and movement, the High Representative issued the Decision on Freedom
of Information and Decriminalising of Libel and Defamation (O.G. Bosnia and
Herzegovina No 14/99);
Further bearing in mind that the said Decision suspended, in the
Entities’ criminal codes, the sanction of imprisonment for defamation, libel and
slander and required both Entities to adopt the necessary legislation to create
civil remedies therefor in accordance with the European Convention for the
Protection of Human Rights and Fundamental Freedoms and further required both
Entities to repeal the relevant criminal provisions once the civil legislation
was adopted;
Noting that the Peace Implementation Council in the Annex to its
Declaration of May 2000 demanded that the authorities of Bosnia and Herzegovina
act promptly to adopt legislation that supports the public’s right to access and
impart information, namely, Freedom of Access to Information and Defamation
laws;
Recalling that subsequent to the said Decision, a joint working group
consisting of national and international experts jointly led by the Organisation
for Security and Cooperation in Europe and the Office of the High
Representative, created draft laws for both Entities on protection against
defamation;
Recalling that the resulting draft legislation was discussed and
adopted by the Republika Srpska National Assembly in July 2001 (O.G. Republika
Srpska No 37/01) but that despite having progressed through the Parliament of
the Federation of Bosnia and Herzegovina to the proposed law stage, the draft
legislation was not adopted;
Noting that several meetings over the last ten (10) months between
members of the Government of the Federation of Bosnia and Herzegovina, the
Federation Ombudsman, the Office of the High Representative and the Organisation
for Security and Cooperation in Europe regarding revitalising the legislative
process on the draft law resulted in the Government adopting thesaid Law;
Further noting that the Parliament of the Federation of Bosnia and
Herzegovina failed to adopt the legislation as adopted and forwarded to it by
the Government;
Recalling that both the above referenced Ombudsman and the
Coordination of the Associations of Journalists in Bosnia and Herzegovina
publicly called for the adoption of the draft law in the Federation of Bosnia
and Herzegovina;
Considering the unacceptable legal discrepancy between the Entities
with regard to the criminality of defamation and the resulting discrimination
against residents of the Federation of Bosnia and Herzegovina;
Acknowledging the recent efforts of the Entities to establish equality
through constitutional amendments and noting that it is unacceptable to allow
residents of the Federation of Bosnia and Herzegovina to be disadvantaged in
relation to the residents of Republika Srpska;
Having taken into account and considered the totality of the matters
aforesaid, the High Representative hereby issues the following:
DECISION
Enacting the Law on Protection Against Defamation of the
Federation of Bosnia and Herzegovina.
The Law on Protection Against Defamation of the Federation of Bosnia and
Herzegovina as hereinafter set out and which forms an integral part of the
Decision herein is hereby enacted.
The said Law shall enter into force pursuant to Article 17 thereof but
on an interim basis, until such time as the Parliament of the Federation of
Bosnia and Herzegovina adopts the same in due form, without amendment and with
no conditions attached.
This Decision shall come into force forthwith and shall be published without
delay in the Official Gazette of the Federation of Bosnia and Herzegovina.
Sarajevo, 1 November 2002
Paddy Ashdown
High Representative
LAW ON PROTECTION AGAINST DEFAMATION OF THE FEDERATION
OF BOSNIA AND HERZEGOVINA
page
Article 1: Purpose of
the
Law
2
Article 2: Principles
Ensured by the
Law
2
Article 3:
Interpretation
2
Article 4:
Definitions
2
Article 5: Scope of the
Law
3
Article 6: Liability
for
Defamation
3
Article 7: Exemptions
from
Liability
4
Article 8: Obligation
to Mitigate
Harm
4
Article 9: Protection
of Confidential
Sources
4
Article 10:
Compensation
5
Article 11: Amicable
Settlement
5
Article 12: Limitation
Periods
6
Article 13: Competent
Court
6
Article 14: Efficacy of the Court
Protection
6
Article 15: Relationship of this
Law with other
Laws
6
Article 16: Transitional
Provisions
6
Article 17: Entry Into Force and
Publication
7
Article 1
Purpose of the Law
This Law regulates civil liability for harm caused to the reputation of a
natural or legal person by the making or disseminating of an expression of false
fact identifying that legal or natural person to a third person.
Article 2
Principles Ensured by the Law
The intent of regulating civil liability as provided for in Article 1 of this
Law is to attain:
a) the right to freedom of
expression, as guaranteed by the Constitution of the Federation of Bosnia and
Herzegovina and the European Convention for the Protection of Human Rights and
Fundamental Freedoms (Official Gazette of Bosnia and Herzegovina, number 6/99),
which constitutes one of the essential foundations of a democratic society, in
particular where matters of political and public concern are involved;
b) the right to freedom of expression as it 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 are received as favorable or inoffensive but also to those
that might offend, shock or disturb;
c) the essential role of media in the democratic process as public watchdogs
and transmitters of information to the public.
Article 3
Interpretation
This Law shall be interpreted so as to ensure that the application of its
provisions maximizes the principle of the freedom of expression.
Article 4
Definitions
The terms used in this Law have the following meanings:
a) expression - any statement, especially any oral, written, audio,
visual or electronic material regardless of its content, form or manner of
making or dissemination;
b) public authority – body, or in other words a legal person, in the
Federation of Bosnia and Herzegovina (hereinafter Federation) as follows:
- body of legislative
authority,
- body of executive
authority,
- body of judicial authority,
- administrative body,
- legal body with a
public competency established by law,
- legal person which is owned
or controlled by Federation, canton, municipality or town or whose work is
controlled by a public authority;
c) public official - any person who is employed
by a public authority;
d) defamation – the act of harming the
reputation of a natural or legal person by making or disseminating an expression
of false fact identifying that natural or legal person to a third person.
Article 5
Scope of the Law
1. This Law applies to any request for
compensation of harm for defamation, regardless of how the request is
characterized.
2. Public authorities are barred from
filing a request for compensation of harm for defamation.
3. Public officials may file a request
for compensation of harm for defamation privately and exclusively in their
personal capacity.
Article 6
Liability for Defamation
1. Any person who causes harm to the reputation
of a natural or legal person by making or disseminating an expression of false
fact identifying that legal or natural person to a third person is liable for
defamation.
2. For defamation made through media outlets
the following are jointly responsible: author, editor, or publisher of the
expression or someone who otherwise exercised control over its contents.
3. A person referred to in paragraphs 1 and 2
of this Article (hereinafter: a person who allegedly caused harm) is responsible
for the harm if they willfully or negligently made or disseminated the
expression of false fact.
4. Where the expression of false fact relates
to a matter of political or public concern, a person who allegedly caused harm
is responsible for the harm caused in making or disseminating the expression if
he or she knew that the expression was false or acted in reckless disregard of
its veracity.
5. The standard of responsibility in paragraph
4 of this Article also applies where the injured person is or was a public
official or is a candidate for public office, and exercises or appears to the
public to exercise substantial influence over a matter of political or public
concern.
6. Where the expression of false fact
identifies a deceased person, the first-degree heir of that person may bring a
request under this Law, under the condition that the expression caused harm to
the reputation of the heir.
Article 7
Exemptions from Liability
1. 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;
b) the person who allegedly caused the harm was under a statutory obligation
to make or disseminate the expression, or made or disseminated the expression in
the course of legislative, judicial or administrative proceedings;
c) the making or dissemination of the expression was reasonable.
2. In making such a determination for
reasonableness as determined by paragraph 1(c) of this Article, the court shall
take into account all circumstances of the case particularly:
- the manner, form and time
of the making or dissemination of the expression,
- the nature and degree of
harm caused,
- good faith and adherence to
generally-accepted professional standards by the person who allegedly caused the
harm,
- consent by the allegedly
injured person,
- the likelihood that the
harm would have occurred had the expression not been made or disseminated,
- whether the expression
constitutes a fair and accurate report of the expressions of others, and
- whether the expression
concerns a matter of the allegedly injured person’s private life, or involves a
matter of political or public
concern.
Article 8
Obligation to Mitigate Harm
An allegedly 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 expression from the person who allegedly caused
the harm.
Protection of Confidential Sources
Article 9
1. A journalist, and any other natural
person regularly or professionally engaged in the journalistic activity of
seeking, receiving or imparting information to the public, who has obtained
information from a confidential source has the right not to disclose the
identity of that source. This right includes the right not to disclose any
document or fact which may reveal the identity of the source particularly any
oral, written, audio, visual or electronic material. Under no
circumstances shall the right not to disclose the identity of a confidential
source be limited in proceedings under this Law.
2. The right not to disclose the identity
of a confidential source is extended to any other natural person involved in
proceedings under this Law who, as a result of his or her professional
relationship with a journalist or other person referred to in paragraph 1 of
this Article, acquires knowledge of the identity of a confidential source of
information.
Article 10
Compensation
1. Compensation shall be proportional to the
harm caused and shall be awarded solely with the purpose of redressing the harm.
In making a determination of compensation, the court is obliged to have regard
for all of the circumstances of the case particularly any measures undertaken by
the person who allegedly caused the harm to mitigate the harm, such as:
- the issuance of a
correction and retraction of expression of false fact or issueance of an
apology;
- whether the person who
allegedly caused the harm gained any monetary profit by making or disseminating
the expression; and
- whether the amount of
damages awarded would likely result in severe financial distress or bankruptcy
for the person who allegedly caused the harm.
2. A court order prohibiting or limiting the
making or dissemination of an expression of false fact is not allowed prior to
the publication of that expression.
3. Preliminary court orders to
prohibitdisseminating 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 person will
suffer irreparable harm as a result of further dissemination of the expression.
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.
Article 11
Amicable Settlement
As soon as the court estimates that the conditions have been met,
the court shall examine whether the parties can reach an amicable
settlement.
Limitation Periods
Article 12
1. The limitation period for filing a request
for compensation of harm under this Law is three (3) months from the date that
the allegedly injured person knew or should have known of the expression of
false fact and the identity of the person who allegedly caused the harm, and
shall in any event not exceed one (1) year from the date that the expression was
made to a third person.
2. Should the allegedly injured person
die after the commencement but before the disposal of the proceedings, his or
her first-degree heir may continue the proceedings on behalf of the deceased if
the heir files a request to the court, within three (3) months from the date of
the death of the allegedly injured person, that he or she wishes to continue the
proceedings.
Article 13
Competent Court
For requests for compensation of harm caused by defamation made in media, the
Cantonal Courts shall be competent.
Article 14
Efficacy of the Court Protection
1. Procedures in the disputes for compensation
of damage caused by defamation made in media pursuant to this Law shall be
considered urgent.
2. The competent court shall initiate the
proceedings for the compensation of harm caused by defamation in media within
thirty (30) days from the day the request was received.
Article 15
Relationship of this Law with other Laws
With regard to the issues that are not regulated by this Law, the adequate
provisions of the law that regulates obligations, the Code of Civil Procedure
(“Official Gazette of the Federation of BiH”, number 42/98 and 3/99), and the
law by which the executive procedure is regulated in the Federation of Bosnia
and Herzegovina shall be applied.
Article 16
Transitional Provisions
1. Any criminal proceedings commenced under
Chapter XX, Criminal Offences Against Honour and Reputation (Articles 213
through 220) of the Criminal Code of the Federation of Bosnia and Herzegovina
prior to the entry into force of this Law shall be dismissed.
2. Upon the entry into force of this Law, any
criminal sanction for legally valid verdicts issued pursuant to the above
referenced articles of the Criminal Code of the Federation of Bosnia and
Herzegovina shall not be executed.
3. An allegedly injured person shall have a
right to, within three (3) months from the day of the dismissal of the criminal
proceedings referred to in paragraph 1 of this Article or from the day of the
dismissal of the execution of the sanctions referred to in paragraph 2 of this
Article, file a request for compensation of harm under this Law, if such a
request satisfies the requirements prescribed by this Law.
4. Civil procedure that relates to the matter
regulated by this Law that has been commenced and not disposed in a legally
valid manner upon the date of the entry into force of this Law shall be
continued in accordance with the law that was in force at the time when the
proceeding was commenced if it is not detrimental to defendant.
Article 17
Entry Into Force and Publication
This Law shall enter into force one (1) day after its publication in the
Official Gazette of the Federation of Bosnia and Herzegovina.
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