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    ACT ON PROTECTION AGAINST DEFAMATION RS

    —This is an unofficial translation, and represents the only English version endorsed by the OSCE Mission to Bosnia and Herzegovina and the OHR—

    October 2001

    ACT ON PROTECTION AGAINST DEFAMATION

    GENERAL PART Article 1

    This Act regulates the acceptable limitations to the freedom of expression with regard to civil liability for harm caused to the reputation of a natural or legal person by the making or disseminating of something false, while acknowledging that:

    a) the right to freedom of expression, as guaranteed by the Constitution of Republika Srpska and the European Convention for the Protection of Human Rights and Fundamental Freedoms, 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 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 media play an essential role in the democratic process as public watchdogs and purveyors of information.

    INTERPRETATION Article 2

    This Act shall be interpreted so as to maximize the principle of freedom of expression.

    DEFINITIONS Article 3

    For the purpose of this Act:

    a) “expression” means any statement, including but not limited to, any oral, written, audio, visual or electronic material regardless of its content, form and manner of making or dissemination; b) public authority” means any legislative, judicial, executive or other administrative body, any body appointed or established by law to carry out a public function, and any legal person that is either owned or controlled by any of the aforementioned public authorities;

    c) “public official” means any person who is employed by a public authority;

    d) “author” is any person who makes or disseminates an expression.

    SCOPE OF THE ACT Article 4

    1. This Act applies to any claim for relief, however characterized, for unlawful harm to reputation caused by the making or disseminating of something false.

    2. Public authorities are barred from bringing defamation claims. Public officials may bring defamation claims only in their personal capacity.

    LIABILITY FOR DEFAMATION Article 5

    1. Any person with legal capacity who causes harm to the reputation of a natural or legal person by making or disseminating an expression of something false identifying that person to a third person, is liable for defamation if he or she is responsible for the harm as the author, editor, or publisher of the expression, as someone who otherwise exercised effective control over its contents, or as the legal person that published the expression.

    2. A person referred to in subsection 1. of this Article, is responsible for the harm caused if he or she acted willfully or negligently in making or disseminating the expression.

    3. Where the expression relates to a matter of political or public concern, a person referred to in subsection 1. of this Article, 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. The same standard of responsibility 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.

    4. Where the expression identifies a deceased person, the first-degree heir of that person may bring a claim under this Act if the expression causes harm to his or her own reputation.

    EXEMPTIONS FROM LIABILITY Article 6

    There shall be no liability for defamation where:

    a) the expression is an opinion, or where the expression is substantially true;

    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.

    In making such a determination, the court shall take into account all of the circumstances of the case including, but not limited to, 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, the likelihood that the harm would have occurred had the expression not been made or disseminated, and whether the expression constitutes a fair and accurate report of the expressions of others, concerns a matter of the allegedly injured person’s private life, or involves a matter of political or public concern.

    STANDARD OF PROOF Article 7

    The necessity of any interference with the right to freedom of expression, through the finding of liability and the awarding of compensation under this Act, must be convincingly established in accordance with Article 10(2) of the European Convention on Human Rights and Fundamental Freedoms and the court practices of the European Court on Human Rights.

    OBLIGATION TO MITIGATE Article 8

    A claimant under this Act shall undertake all necessary measures to mitigate any harm caused by the allegedly defamatory expression including, but not limited to, requesting a correction from the person who allegedly caused the harm.

    AMICABLE SETTLEMENT Article 9

    As soon as it is reasonable to do so, the court shall examine whether the parties can reach an amicable settlement.

    PROTECTION OF CONFIDENTIAL SOURCES Article 10

    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 is not obliged to disclose the identity of that source. This right includes the right not to disclose any material which may reveal the identity of the source including, but not limited to, 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 Act.

    2. The right not to disclose the identity of a confidential source is extended to any other natural person involved in proceedings under this Act who, as a result of his or her professional relationship with a journalist or other person referred to in subsection 1. of this Article, acquires knowledge of the identity of a confidential source of information.

    COMPENSATION Article 11

    1. Compensation shall be awarded solely with the purpose of redressing the harm caused to the reputation of the injured person and shall be proportional to the harm caused. In making a determination of compensation, the court shall have regard to all of the circumstances of the case including, but not limited to, any measures undertaken to mitigate the harm caused such as the issuance of a correction, retraction or 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. The court shall not issue an order prohibiting or limiting the making or dissemination of an expression prior to the publication of that expression.

    3. Preliminary court orders to prohibit the dissemination or further dissemination of an expression may only be issued where the allegedly injured person can establish with complete probability that the expression caused unlawful harm to the allegedly injured person and that he or she would suffer irreparable harm as a result of the dissemination or further dissemination of the expression. Permanent court orders to prohibit the dissemination or further dissemination of an expression may only be applied to the specific expression(s) found to be unlawful and to the specific person(s) found to be responsible for the making or dissemination of the expression.

    LIMITATION PERIODS Article 12

    1. The limitation period for bringing a claim under this Act is 3 months from the date that the allegedly injured person knew or could have known of the expression and the identity of the person who caused the harm, and shall in any event not exceed one year from the date that the expression was made to a third person.

    2. Should the claimant die after the commencement but before the disposal of the claim, his or her first-degree heir may continue the claim on behalf of the deceased if the heir communicates to the court, within 3 months from the date of the death of the claimant, that he or she wishes to continue the proceedings.

    RELATIONSHIP WITH OTHER LAWS Article 13

    This Act is a lex specialis to other laws. For matters that are not regulated herein, the provisions of the Law on Obligations, the Law on Executive Procedure, and the Code of Civil Procedure applicable in the Republika Srpska shall be applied.

    TRANSITIONAL AND FINAL PROVISIONS Article 14

    1. Upon the the entry into force of this Act, any criminal proceeding instated under Articles 174-182 of the Criminal Code of the Republika Srpska that is pending upon the date of the entry into force of this Act shall be dismissed.

    2. Upon the entry into force of this Act, any unfulfilled criminal sanction for verdicts issued pursuant to Articles 174 to 182 of the Criminal Code of the Republika Srpska shall not be executed.

    3. An affected claimant shall have 3 months from the day of the dismissal of the criminal proceeding and/or the day of the dismisal of the unfulfilled criminal sanction to bring a claim under this Act provided that such a claim otherwise satisfies the requirements prescribed herein.

    4. Upon the entry into force of this Act, any pending civil claim within territory of the Republika Srpska that falls within the purview of this Act shall be continued in accordance with the laws under which that claim was instated.

    COMMENCEMENT Article 15

    This Act shall enter into force on the eighth day after its publication in the “Official Gazette of the Republika Srpska”.

    [Number: 01-867/01 Date: 25 July 2001 Banja Luka]

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