Amendments to the Criminal Code of Republika Srpska, which have recriminalised defamation in the entity, provide for a fine or prison sentence for publishing or displaying a photo or video without the consent of the person depicted if the publication has or could have had a harmful impact on their personal life.

Lawyer Jovana Kisin Zagajac argued that the legislation is too broad, and the law does not exempt recordings made in a public area from criminal prosecution.

“Filming in a public area is not classified as something that’s excluded from criminal prosecution, so therefore, although according to the standards of the European Court [of Human Rights] in terms of interpretation of the right to freedom of expression, freedom of recording in a public space is implied, under certain criteria, it should be noted that the criteria are not clearly defined in our national laws,” Kisin Zagajac said.

Kisin Zagajac said that this was much better defined in the Law on Public Information and Media in neighbouring Serbia, which clearly defines the situations in which no consent is required to publish personal images. According to Serbian law, no consent is required if the person has attracted public attention for their public statements or their behaviour in their private, family or professional life which led to the publication of the images.

“As Republika Srpska lacks such provisions in its laws, and in order to determine whether elements of the criminal offence of unauthorised publication exist in this specific [Banja Luka] case, we must be guided by the general guidelines and standards of the European Court for Human Rights when it comes to freedom of public expression – to which the constitution of Republika Srpska refers – and above all else, we should determine whether the video that was published is of a personal nature,” Kisin Zagajac said.

Kisin Zagajac suggested that the Law on Protection of Personal Data is also relevant in this case. She explained that there might be grounds for criminal prosecution if it is determined that the original published video footage was a record of a personal nature. If the video is not considered a record of personal nature, there are no grounds for criminal prosecution, she said. The key question, she added, is whether the original video enabled the person who was filmed to be identified or if the person’s identity was revealed subsequently in some other way.

The Banja Luka Police Department did not respond to questions about how the woman’s identity was revealed and whether police officers had a role in this.

Journalists in Banja Luka are concerned that the incident will be misused to further restrict media freedom. Local journalist Dejan Rakita said that no one has asked whether public institutions “which did nothing to prevent the tragedy” bear any responsibility for what happened; instead the maker of the video author will bear the brunt of the blame.

Rakita said some members of the public were hypocritical because the first “gorged themselves” on the video and shared it on social media, but after the suicide, they “all became wise with hindsight”.

He believes that the authorities in Republika Srpska will use the incident to restrict media freedom, in the same way as they misused the suicide of a 22-year-old man in Laktasi in 2022 after he was harassed online over a humiliating video.

“The whole point of the story, it seems to me, is to send another message to journalists that they must not publish recordings of, primarily, politicians if they are not aware that they are being recorded. So if we had the situation in which there were covert recordings [by journalists] in the ‘Potkivanje affair’ [high-level bribery case], the person recording someone taking a bribe, thus proving and unmasking a crime, could have been held criminally responsible, which is absurd,” Rakita said.

Ljiljana Smiljanic of the Banja Luka Club of Journalists said it is important to end the habit of persecution on social media. She said that various videos are shared on social media every day, but it is hard to prove that someone has the intention for the video to go viral.

“In this specific case, we should bear in mind that the video was made in a public place, where recording is not prohibited, and the person did commit an offence, which the police have confirmed. Does that mean that no one should record a violation of the law if that video will go public?” Smiljanic asked.

“Meanwhile, we remain a society in which you ridicule others from an early age or you are ridiculed yourself. In the media, we often read and hear inappropriate comments by politicians and dirt being made public, and see a new moral low in reality shows. We’re always dealing with the consequences, not even noticing the possible causes,” she said.

Psychologist Srdjan Puhalo says that bizarre events have become the top stories on social media.

“In the past, people did not use social media and such information had a limited reach in terms of space, time and impact. Today such information spreads like wildfire on social media and no one can stop it. Traditional media, even their websites, have become powerless,” Puhalo argued.

Puhalo said he is convinced that most people who share other people’s private compromising content on social media don’t do it out of the worst intentions.

“It seems to me the aim is actually the criticism of such behaviour, which very easily turns into the open persecution of an individual. Indeed, the consequences for the person who has been recorded may be different, mostly depending on their ability to resist public pressure. Some succeed, but in others it leads to self-destruction, mental problems and even death,” he noted.

“None of us think much about the consequences that our social media behaviour has on others. In real life, that is something people care a lot about,” he said.