The proposal of the Federal Ministry of Justice to amend the Criminal Code to sanction the publication of personal photos, recordings and other content without consent with fines and imprisonment opens up room for abuse and the imposition of censorship in public spaces.
The Human Rights House Banja Luka supports the harmonization of the Criminal Code of the Federation of BiH with the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence and the EU Directive on Combating Violence against Women and Domestic Violence, however, we warn of the need to delete or amend the new Article 193a, which in the proposed formulation legalizes censorship and introduces restrictive measures contrary to the right to freedom of expression and information.
The disputed article of the Law is even more repressive than the provision contained in the controversial amendments to the Criminal Code in Republic of Srpska, which criminalized defamation in 2023 and created the basis for suppressing public criticism. While in Republic of Srpska, unauthorized publication of another person’s recording is punishable only if it caused harmful consequences to the person depicted or their family members, in the Federation it is proposed that any publication of another person’s recording without consent be a criminal offense, which opens up greater scope for abuse.
Additionally, there are no clear exceptions when it comes to the public interest, or the publication of content that documents, for example, violations of the law, harm to other persons, etc. The Human Rights House Banja Luka points out to also be controversial that this criminal offense is designed so that practically publishing any content of a “personal nature” without the consent of a third party can be punishable, and it is not defined what exactly is meant by content of a personal nature, which creates legal uncertainty, leaves room for arbitrary interpretation, and therefore selective punishment.
The explanatory memorandum to the Proposal for Amendments to the Criminal Code of the FBiH states that this criminal offense is new compared to the Draft, and that it was introduced at the request of the “social community” in order to protect the privacy of personal content.
It is indicative that the new criminal offense was omitted from the Draft Law that underwent public debate and where numerous organizations and individuals had the opportunity to provide comments and suggestions on the content that was available at the time. By subsequently proposing a new criminal offense, the public was denied the opportunity to point out the harmfulness of such a provision in the prescribed procedure, so it remains unclear how the Federal Ministry of Justice determined that this was a request from a “social community”.
