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Media Laws and Freedom of Expression and Press: An Assessment in the Context of Bangladesh

Last Updated on July 24, 2023 by Administrator

Written By – Tanni Ganguly, Pursuing Master of Laws (LLM) from South Asian University

Abstract:

Freedom of expression is the most important fundamental right for any democratic country. After Bangladesh became independent in 1971, the constitution was constructed 1972. Where the preamble states the government as a democratic government. However, after the death of the first president of Bangladesh, the country has been governed by the military (BD Army) since 1975. Where the fundamental rights were reduced. After nearly one and a half-decade of military governance, the country finally elected an independent government and thought the democracy was established. But after 48 yearsof independence, there is still a lack of application in the freedom of expression. Apart from socio-political issues, the preservation and protection of the freedom of the press and restrictions in Bangladesh mainly depend on its 1972 Constitution and other statutory laws and some international legal instruments relevant to the country.  This paper explores the freedom of the press and its restrictions in Bangladesh under existing national laws and relevant international policy instruments. In the paper, the limitations in applying freedom of speech and expression are discussed. In addition, there are many cases where statutes are hampering democracy and freedom of expression. Laws that are contradictory to the freedom of expression are discussed as they impeded the application of constitutional rights. Moreover, I am also concerned about the media’s role in freedom of speech and how the government is suppressing the media. In addition, how some media misuse the right to freedom of expression in the country.

Introduction: 

One of the inherent natures of the human being is the desire to be free. This sense of freedom makes them distinct from other creatures of the universe. The struggle for freedom of expression is a long-standing struggle of groups and individuals against their political environments. It could be considered one of the most fundamental of all spaces. While it is of hesitant value to rate one freedom over another, freedom of expression is an essential foundation of democracy- it is the core freedom without which democracy could not exist.

After the independence of Bangladesh, the constitution was created for democracy in 1972. Article 39 of fundamental rights is Freedom of thought, conscience, and speech. Here, these are not mere words of fancy writing but a symbol of justice and equality, ensuring democracy.

Although other laws may say otherwise. Absolute Freedom is what we all desire.[1] Similarly, we all want to enjoy absolute Freedom of speech and expression. Therefore, it is not unanticipated that even law has approved Freedom of speech and expression to us. All the democratic countries furnish a similar right for their citizens for a free expression of views and thoughts. This paper is expected to find the laws limiting and hindering the Freedom of thought and speech and how they can affect the people’s democratic process. 

This freedom of expression and speech is essential to developing human personality, and every person should be accessible in their thought and conscience. On the other side, freedom of speech is crucial for the development and functioning of democracy. Without freedom of speech, there nobody can imagine any democracy, and the first thing an autocrat does is curb the freedom of speech.[2] Free press and media act as the vehicle for freedom of speech. If the press and media are restricted, good governance and democracy cannot be entrenched. Media promote and support the right of freedom of thought and speech and ensure the ground for their free operation. Media also provide a suitable environment for free expression of views and feelings of citizens through speech, writing, drawing, picture, recording, acting, literacy, printing, and broadcasting.[3] It is well established that mass media that constitute the backbone of democracy has an influential role in the process of democratic development. 

As a backbone of a democracy, mass media can play a vital role in the political structure of each country through disseminating information, enlightening voters, protecting human rights, creating tolerance among groups, and helping the government be transparent and accountable. In Bangladesh, a country where democracy and state institutions are in their nascence, the mass media’s relatively free operation is the key means of examining governance and demanding accountability from state machinery. Moreover, it also helps an individual judge society and form opinions, which are essential for the well-being of democracy. Mass media took the responsibility of making people think about an issue by offering information. Moreover, it can put a plan in place in some cases. This research focuses on the use of the fundamental right of freedom of speech and expression, the title role of a free press in a country, and how it affects the people and considers them free citizens of a democratic country.

Definition of the freedom of expression

Every individual has their own beliefs, thoughts, ideas, and emotions about different issues. Furthermore, everyone has a right to speak out about what they think of specific topics. And, expressing someone’s views aloud, without any hindrance or fear of censorship from anybody or organization, particularly from a government, is regarded as freedom of expression. United Nations Universal Declaration of Human Rights clearly defines freedom of expression in article 19 as a right to be bestowed upon every human being. Every human being in the universe has the right to freedom of opinion and expression; this right includes holding views without interference and seeking, receiving, and imparting information and ideas through any media and regardless of frontiers [4] Although freedom of expression should always be provided, in some cases, to restrict chaos in society, a government can limit someone’s freedom of expression. Such presentation may bring hatred and eventually violence in society. But, to do that, the government must enact all the restrictions by the book (What Is Freedom of Speech? 2020).

Definition of the freedom of the press

To ensure the continuity of a democratic country, freedom of the press is a fundamental issue to address. Freedom of the press gives the media the freedom of working freely in society while doing the job without any restriction or censorship, either self-regulated or from the government. Any powerful body of society must not control the press.

A free media works as a watchdog, preventing the wrongdoing of those in power (American Civil Liberties Union, n.d). We often see that press freedom is often hindered in the name of national security and counter-terrorism. But, the free media is the precondition of a rightful society. Because it is the press that looks after the underdogs of the community. If the press cannot operate freely, who would voice for those poor people, and eventually, justice shall not prevail.

Freedom of Expression and Press in the Constitution of Bangladesh:

Freedom of speech has been assured and guaranteed in the Constitution of Bangladesh. Article 39 of the People’s Republic of Bangladesh Constitution contains the right of freedom of speech and expression in the title of “Freedom of thought and conscience and speech.”[5] Article 39(2) (a) of the Bangladeshi Constitution says that all citizens have the right to freedom of speech and expression. Freedom of Speech and expression directs the right to express one’s convictions and opinions freely, writing, printing, pictures, or any other mode. Under Article 39(1), the constitution of Bangladesh Recognizes the freedom of thought, conscience, and speech. Recognizing it as a constitutional right, the Article 39(2) says, The right is directed to any reasonable restrictions imposed by law to ensure the security of the State, friendly relations with other states, public order, decency or morality, or concerning contempt of court, defamation or incitement to an offense.[6]

In the constitution, Article 39(2) (b) says it thus includes expressing one’s idea by the medium of communication or visible representation, such as gesture, signs, and the like. This expression also implies publication, and thus, the freedom of the press is included in this category. A free broadcast of ideas is the essential objective, and this may be done on the platform or through the press. This style of broadcast is protected by freedom of circulation. Liberty of circulation is necessary to that freedom as the liberty of publication. No doubt, without circulation, the publication would be of little value.[7] The freedom of expression comprises the liberty to broadcast not one’s views only. It also has the right to disseminate or publish other people’s opinions. Otherwise, this freedom would not comprise the press freedom.

Major Laws regulating Media of Bangladesh:

The legal framework on Media is very frail in Bangladesh, and the implementation of laws is very ineffectual. Most of the laws are more or less copied from the Colonial Laws or Indian laws. In addition, the freedom for media and improvement of media in all sectors are in some way blocked or restricted by government or political influences.[8] The significant laws on media are discussed in the following.

Press Laws in Bangladesh

Old laws that exert influence upon the working of the media in one way or the other are the

Special Powers Act of 1974, Official Secrets Act of 1923, Contempt of Court Act 1926, Copyright Act 2000, and the Code of Criminal Procedure (CrPC). The following section will study the existing press laws of Bangladesh.

Digital Security Act, 2018:

The Digital Security Act 2018 is called the digital security law in Bangladesh. This act was basically passed to prevent the unroll of racism, sectarianism, extremism, terrorist propaganda, and hatred against religious or ethnic minorities via social media, print media, or any other electronic media.[9] 

The Digital Security Act (DSA), 2018, is one of Bangladesh’s most controversial press laws. This law ensures digital security and identification, prevention, suppression, and trial of offenses committed through digital devices. Section 28 of the DSA states that if anybody and any organization publish anything in any electronic format that might hurt someone’s religious values or sentiments, it will be a punishable offense. The punishment contains both jail time and financial penalties.[10]  Similarly, in section 29, the publication of defamatory information on websites or any other electronic format is another offense based on section 499 of the Penal Code. The punishment ends up in jail for three years and pays taka three lac. According to section 32 of this law, breaching the government’s secrecy by utilizing a digital device is another punishable offense under the Official Secrets Act of 1923.[11] The law gives the power to legislative forces to seize, search, and arrest even without a warrant.

Right to Information Act, 2009:

The Right to Information Act is a kind of Act where the people practice power on the state’s authority. The focus of this law is to help ensure the enactment of section 39 of the constitution of the People’s Republic of Bangladesh.

The Act ensures that the people of Bangladesh have access to the information of governmental organizations, as the right to information is regarded as one of the basic rights of the United States. Everything deems to be all right with this Act until the restrictions on specific details come into play.[12]

According to section 7, publications of or providing certain types of information are not mandatory. These include any such information that causes a threat to the country’s security, affects the foreign policy or enforcement of the laws, etc.

What makes the Act more unreliable is its section 32, where some law-enforcement

organizations and institutions are given the freedom of not disclosing information to anybody.[13] These organizations are National Security Intelligence (NSI), Directorate General Forces

Intelligence (DGFI), Defence Intelligence Units, Criminal Investigation Department (CID),

Bangladesh Police, Special Security Force (SSF), Intelligence Cell of the National Board of Revenue, Special Branch, Bangladesh Police, Intelligence Cell of Rapid Action Battalion (RAB).

The Printing Presses & Publication Act, 1973

The act requires licensing for the newspapers and periodicals from the government. According to this act, without a license or registration form, the district magistrates can cancel the right to publish a newspaper. Without registration, a newspaper owner or publisher can be punished, either imprisonment or financial penalty.[14]

Special Powers Act, 1974

The act works to prohibit prejudicial acts, and if a journalist publishes any prejudicial report, that will be considered a punishable offense.15

Other press laws

Several other press laws have been enacted in Bangladesh. They include National Broadcasting

Policy, 2014; Community Radio Policy, 2017; Bangladesh Press Council Act, 1974; National Online Mass Media Policy, 2017, etc. The journalists and editors criticize these laws and acts and the civil society of Bangladesh. Still, these laws keep a barrier upheld to the practice of free media in Bangladesh.

Restrictions on the freedom of Press and Expression: Bangladesh Constitution and Other Statutes   

The majority of the statutory laws on media or press enacted before or after the Bangladesh Constitution have imposed more restrictions on the freedom of the press than on endorsing it. Some rules have their origins in the British colonial period or decolonization, but these laws were retained to control the press. 

The Constitution of the People’s Republic of Bangladesh, 1972, was born with the provision of the freedom of the media and reasonable restrictions. Article 39 entails the spirit of sunshine law over the culture of secrecy, intending to ensure information-oriented participatory governance. The marginal notes of the article engulf the freedom of thought, conscience, and speech. However, article 39(1) guarantees the freedom of thought and conscience, and article 39(2) (a) protects the freedom of expression of every citizen.16 In contrast, Article 39(2) (b), press freedom, is drafted. But in respect of each enjoyment of each right, article 39(2) has fronted seven to eight rational restrictions subject to the law for the purpose of State security, friendly relations with foreign states, contempt of court, public order, decency or morality, defamation and incitement to an offense.

The Digital Security Act (DSA) Act, 2018  

Lastly, the DSA Act, 2018 is the most recent addition to hampering the FOE and the press, hampering the free flow of information by stiff penalties for various cyber interactions (Freedom House, 2018). Most sections, including 17, 18, 21, 25, 28, 29, 31, 32, and 43 of the DSA, 2018, are more severely draconian than the ICT Act, 2006 and its amended provisions in 2013.

  1. Special Powers Act, 1974

http://bdlaws.minlaw.gov.bd/act-462.html

  1. Freedom of thought, conscience and of speech in Bangladesh. https://www.newagebd.net/article/106406/freedom-of-thought-conscience-and-of-speech-in-bangladesh

Offenses under these sections are cognizable and non-bailable, allowing police to arrest anyone without a warrant, while only a few violations under sections 29, 20, 25, and 48 are bailable.  

Section 21 of the DSA provides for sentences of up to 14 years of prison for anyone who uses digital devices to spread negative propaganda against the liberation war or the father of the nation, the national anthem, or the national flag, while section 25 introduces sentences of up to 3 years in prison for deliberately publishing intimidating or distorted information against someone in online media. Section 28 mandates the government to imprison anyone for up to 10 years for hurting someone’s religious values or sentiments. In contrast, section 29 provides up to 3 years in prison for publishing information intended to defame someone. Section 31 provides sentences of up to 7 years in jail for deliberately posting information that can spread hatred among specific communities. Section 32 has been widely criticized by rights groups for potentially stifling investigative journalism. 

It considers the secret recording of any information at any government, semi-government or autonomous institution as espionage, imposing sentences of up to 14 years. It grants law enforcement authorities wide-ranging powers to remove or block online information which harms the unity of the state or any part of the state, defense, religious values, security, or public order or spreads communal hostility and hatred. In the true sense of legislative analysis, it may be stated that the DSA is based on the doctrine of colorable legislation, wherein the government indirectly and secretly has an undue influence on certain sections of society to materialize its plan. It may take Bangladesh back to the analog era with the apprehension of throttling press freedom and dissenting ideas and views. The colonial mindset or attitude in curbing free press in an independent and sovereign State does not make that much sense in the present context of globalization of human rights. 

The National Online Mass Media Policy, 2017

The National Online Mass Media Policy, 2017 emerged, suggesting the constitution of a National Broadcast Commission (NBC) to facilitate the operations of online mass media in an organized manner. Under the policy, every online mass media is required to get registered. Under this policy, every online media is to get approval from the proposed Broadcast Commission. The online media outlets must have an editorial policy, which may hamper the growth and freedom of mass media. Though the government consulted with the stakeholders and took opinions, their recommendations are not adequately reflected in it. To regulate the online mass media, forming an independent, neutral and effective broadcast commission is demanded by the stakeholders concerned, but it is yet to be formulated.[15] However, the draft law of the National Broadcast Act 2018 is now at the forefront of discussion and debate. The proposed rule bears the provision to form a seven-member National Broadcast Commission (NBC) through recommendations from a search committee. NBC will be the sole authority to permit licenses to broadcast media and register online media outlets apart from the Ministry of Information.  

The Public Interest Information Disclosure (PIID) Act, 2011

The PIID Act, 2011 is another epoch-making attempt to provide legal protection to the persons disclosing information relating to issues of public interest. The person who discloses authentic information to competent government authority is a whistleblower. This law prohibits any civil, criminal, or departmental suit for disclosing public interest by a whistleblower but does not protect the whistleblower from disclosing false and baseless information.[16]     

The Information and Communication Technology Act, 2006  

Sections 54, 56, 57, 58 and 66 of the ICT Act, 2006 by its amendment in 2013 created a huge impediment not only for journalists as to free press but also for all free thinkers and social media users as to FOE. Particularly, section 57 through its amendment in 2013 was able to restrict the FOE for all. Though, sections 54, 56, 57, 58 and 66 are repealed now, and the impacts are persistent in the society.[17] 

In the case of India, section 66A, a similar provision to section 57 of Bangladesh, was added in the Indian ICT Act, 2000, by its amendment in 2008. The misuse of section 66A was widespread for years in arresting persons for the critical posting of comments on social media relating to touchy social, religious, and political issues. The SC of India in Shreya Singhal v. Union of India, AIR (2015) SC 1523, scrapped section 66A because of its inconsistency with article 19(1) of the Indian Constitution of 1949. In the same case, the SC opined that liberty and freedom of expression are the two cardinal principles of democracy. [18]The SC also said that section 66A had upset the balance between freedom of speech and reasonable restrictions. The observations of the SC appeared because of the arbitrary, excessive, disproportionate mandate of section 66A invading the free press with a chilling effect. Here, the SC has prioritized the constitutional provision guaranteeing the freedom of expression and the press. 

The challenges:

Bangladesh is 151th in the 2020 World Press Freedom Index, which clearly shows how disappointing the freedom of the press is here in the country. There are several reasons behind this situation, but the press laws curb the freedom of the press for the most part. Nonetheless, is it all because of the media acts, or are there some other causes at play or not. We will discuss it in the next part.

Political polarization:

As Bangladesh is not a country of remarkable democratic status, the political institutions of the country are fragile (Ahmed, 2009, p. 54). Some media organizations are connected to political agendas and thus are biased. The state-owned television channel is the perfect example of this kind of media in the country. Ahmed (2009) finds that the professionalism of the local media is threatened by political instrumentalization.[19] Political analyst Zia Hassan claims that there are three types of media in Bangladesh. The severe types of professional journalists seem to be real threats to the government and are often restricted and tortured by the government under the press laws. The second types are those who are apparently against the government but eventually work for the government. The third type is those who are independent and try to maintain objective journalism. They are the showpiece of the country’s media situation that displays a symbol of functioning democracy (Mahmud, 2021).[20]  The journalists themselves are divided into two major political groups. Political polarization is too much apparent in the country’s media scenario. That’s why media that favor the government get the free pass every time, while the proposition media houses are often taken out under the press laws.

Lack of the knowledge of Media Laws:

It’s not that the media laws don’t curb press freedom, but sometimes we get to see how unprofessional some media houses become in their job. It’s because not all the country’s journalists are well-trained; some media houses don’t have proper knowledge of Media related regulations. They tend to make mistakes that get legal actions under the laws. Misleading information and fake news are often seen in the country’s media, published and taken down later without any explanation or apologies.[21]   

Conclusion: 

Freedom of the press is crucial. It bears massive implications for every individual in acquiring and spreading information in the community to raise their voice against the professional misconduct of the government and other entities. A free press is an essential indicator of a democratic society and sustainable development. If a free press prevails in a country, other democratic rights and freedoms will eventually be ensured. However, the privatized media is more interested in serving its commercial purposes and publishing negative news of doom and gloom rather than positive or success stories of governments necessitating reasonable restrictions occasionally. To a large extent, the shield of appropriate conditions is abused by all the governments, unjustifiably limiting freedom of the press, and speech and targeting journalists, protesters, and other persons with dissenting news and views. Even online and social media blocking or filtering is now an augmented reality. Sometimes, people lose trust in media when it serves politically motivated agendas and dubious propaganda undermining public interest and social benefits. Despite the gradual increase of the number of press in the country, the trend of press freedom is on the wane, worrying the conscious section of people. The successive governments of Bangladesh, especially military-based ones, have treated press freedom as a threat to their ruling regimes. There was a crackdown on media in the past, is at present, and ostensibly will be in the future. The unity of journalists and media personalities can ease the suppression on them, and media houses accelerate the freedom of the press for the greater interest of society. Ultimately, in collaboration with the pluralistic, diverse, and independent media, the government can create a conciliating attitude in balancing the freedom of the press and reasonable restrictions replicating tenets of good governance.   


[1] Celebrating Bangladesh:15th Anniversary Special – The Daily Star.

https://archive.thedailystar.net/suppliments/2006/15thanniv/celebrating_bd/celeb_bd18.htm

[2] Sheikh Hafizur Rahman Karzon, ‘Conflicting coexistence of freedom of press and defamation’

[3] bdlaws.minlaw. (2018, 11 22). Retrieved from bdlaws.minlaw.gov.bd: 

http://bdlaws.minlaw.gov.bd/pdf_part.php?id=367

[4] Kelmor, Kimberli. “Legal Formulations of a Human Right to Information: Defining a Global Consensus.” Journal of

Information Ethics, vol. 25, no. 1, McFarland & Company, Inc., Apr. 2016, p. 101

[5] The Constitution of the People’s Republic of Bangladesh, Part 2: Fundamental Principles of State Policy and  Part 3: Fundamental Rights

[6] bdlaws.minlaw. (2018, 11 22). Retrieved from bdlaws.minlaw.gov.bd: http://bdlaws.minlaw.gov.bd/pdf_part.php?id=367

[7] Ingelhart, L. E. (1987). Press Freedoms: A Descriptive Calendar of Concepts, Interpretations, Events, and Court Actions, from 4000 B.C. to the Present. London: Greenwood Publishing Group.

[8] https://www.lawyersnjurists.com/article/discuss-the-major-laws-regulating-the-media-of-bangladesh/

[9] Digital Security Act, 2018 – Wikipedia. https://en.wikipedia.org/wiki/Digital_Security_Act,_2018

[10] Ibid

[11] Ibid

[12] The provision of ICT Act goes against freedom of expression; vagueness creates scopes for misuse, say legal experts, August 22, 2015, http://www.thedailystar.net/

[13] ICT (Amendment) Act, 2013: Right to Information and Freedom of Expression under Threat, http://www.askbd.org/ask/2013/10/09/ict-amendment-act-2013

[14] The Printing Presses & Publication Act, 1973 http://bdlaws.minlaw.gov.bd/act-details-437.html

[15] Khatun, A., Abir, J. I., Rahman, M. Rahman, M. G. (2017). Press Freedom Dynamics in Bangladesh in Elsebeth Frey, Mofizur Rhaman and Hamida El Bour (eds.). Negotiating Journalism. Core Values and Cultural Diversities. Göteborg: Nordicom. http://www.nordicom.gu.se/sites/default/files/kapitelpdf/07_khatun_et_al.pdf. Accessed 25 December 2018.    

[16] The Public Interest Information Disclosure (PIID) Act, 2011https://www.thedailystar.net/law-ourrights/news/the-legal-protection-whistleblowers-2098373

[17] Effectiveness of the ICT Act 2006 | Print Version – Daily Sun. https://www.dailysun.com/arcprint/details/196195/Effectiveness-of-the-ICT-Act-2006-/2017-01-05

[18] Ibid

[19] Sajen, S. (2015, December 13). Still waiting for a free press. The Daily Star

[20] Ibid

[21] The provision of ICT Act goes against freedom of expression; vagueness creates scopes for misuse, say legal experts, August 22, 2015, http://www.thedailystar.net/

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