defamation laws of Bangladesh: A Threat to Democracy.
Ariza Binte Ahmed[1]
1. Introduction
Since the birth of the nation in 1971, the People’s Republic of Bangladesh has been trying to present itself to the world as a Parliamentary Republic with its roots vested in secularity and democracy. Although a Presidential Government was placed between 1975 and 1990, Bangladesh returned to Parliamentary Democracy in 1991. The legal system of Bangladesh follows that of its previous British colonial occupants and majority of the present laws in Bangladesh were drafted by the lawmakers of the British Indian Empire. These laws include The Penal Code 1860, the Transfer of Property Act 1872, the Code of Civil Procedure 1908, etc., and are in need of dire modernization.
During the presidential era, many laws were enacted by way of Proclamations and Ordinances. However, they were deemed unlawful by the High Court in 2010, and at present, the power to enact legislation rests with the parliament. Notwithstanding, many of Bangladesh’s recent laws are controversial, archaic, or in violation of the country’s own constitution. These contentious laws include the Special Powers Act 1974, Blasphemy law under section 295A of the Penal Code 1860, Criminal defamation laws under section and section 57 of the Information Technology and Communications Act 2006, Sedition laws etc.
1.1 Key Elements of Democracy
Democracy is a Greek word which literally translates into “Rule by the People”. This rule by the people can be in direct, participatory, and representative form. Contemporary Democracy usually refers to a representative form of Government run by elected officials. The key elements of Democracy are the following:
- The rule of law
- Separation of powers
- An electoral system based on the majority rule
- Some degree of equality among citizens
- Individuals’ rights to life, liberty, education, expression and speech, religion, etc.
- Freedom of the press
It is evident from the Constitution of Bangladesh that the supreme law of the land promises to uphold the key elements of Democracy as stated above. It is also evident from the present-day laws and practices of Bangladesh, that the reality is quite inconsistent with what the Constitution promises.
1.2 Freedom of Expression
The importance attached to freedom of expression is not a new idea. In the early days of modern society, intellectuals such as John Milton and John Locke emphasized their opposition to censorship as a part of the development of democratic government. Freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for the progress of such society, and one of the fundamental rights of every member of such society.
Despite that, it was only with the formation of the United Nations and the development of Human Rights Law, founded in international law, that the right to freedom of expression became universally acknowledged.
Article 19 of the 1948 Universal Declaration of Human Rights (UDHR) states:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”[2]
The very first session of the United Nations General Assembly in 1946 put it thus:
“Freedom of information is a fundamental human right and… the touchstone of all of the freedoms to which the United Nations is consecrated.”[3]
Freedom of expression is not an absolute right. It is a general principle of human rights law, that human rights may not be exercised in a manner that violates the rights of others. To summarize freedom of expression may be limited on any of the following grounds:
- To protect the rights or reputations of others
- National security
- Public Order
- Territorial integrity or public safety
- Confidentiality of information received in confidence
- Authority and impartiality of the judiciary.
However, it should be presumed that the limitation of a right is an option of last resort. European laws consider the term “Necessary” as a stronger standard than “reasonable” or “desirable,” although the restriction need not be “indispensable.”[4]
The nature of the restriction proposed is also vital to consider. The US Supreme Court has stated that any limitation on freedom of expression must be the least restrictive possible:
“Even though the Government’s purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.”[5]
The Constitution of Bangladesh provides its citizens with the fundamental right of freedom of thought, conscience and speech in Article 39. According to article 39(2)[6] the freedom of expression, speech, and the press shall be guaranteed subject to any “reasonable” restrictions imposed by law in the interests of the following:
- Security of the state
- Friendly relations with foreign states
- Public order, decency or morality
- In relation to contempt of court
- Defamation
- Incitement to offence
2. Defamation
Defamation is a generic legal term that refers to the unjust undermining of a person’s reputation. In Common Law legal systems, the term defamation is broken down into libel and slander. The former refers to a defamatory statement that is published, whether in written form or through some other form such as broadcasting. Slander, by contrast, refers to defamation that is spoken privately and not preserved in any permanent form. Defamation is tried as a civil wrong under tort law in many developed nations.
Equally, criminal defamation describes the situation where defamation is an offence under the criminal law of the state. In such circumstances, alleged defamation will normally be charged by state prosecutors and tried in the criminal justice system, with the possibility of a sentence of imprisonment being imposed upon conviction.
2.1 Defamation Laws in Developed Nations
The law of defamation dates back to the Roman Empire. The offence of libellis famosis was sometimes punishable by death. In countries with developed and relatively fair legal systems, such as the UK, and the US, the penalties and costs attached to defamation today are not as serious. Conversely, prison sentences or massive compensation awards can be a occupational hazard for journalists in many countries, such as Bangladesh.
The definition of defamation according to the Encyclopedia Britannica is as follows:
“Defamation, in law, means attacking another’s reputation by a false publication (communication to a third party) tending to bring the person into disrepute.”[7]
In the UK and the EU, only individuals can put forth claims of being defamed to the Courts. Since their defamation laws are only intended to protect the individual right to a reputation, only an individual can sue to protect that right. The State, government institutions, departments, offices, religious groups, and members of religious groups (unless they have been individually defamed) cannot sue for defamation.
2.2 International Legal Authorities on Defamation Laws
The United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression is among a number of international legal bodies that have been arguing that “criminal defamation laws should be repealed in favour of civil laws as the latter are able to provide sufficient protection for reputations…”
Criminal defamation laws represent a potentially serious threat to freedom of expression because of the very sanctions that often accompany conviction. The ECHR laid down a number of very strict protections that should apply when a criminal defamation law remains in a statute in Amorim Giestas and Jesus Costa Bordalo v. Portugal[8]. They are:
- If defamation is part of the criminal law, the criminal standard of proof, beyond a reasonable doubt, should be fully satisfied.
- Convictions for criminal defamation should only be secured when the allegedly defamatory statements are false, and when the mental element (mens rea) of the crime is satisfied.
- Penalties should not include imprisonment, nor should they entail other suspensions of the right to freedom of expression or the right to practice journalism.
- Should not resort to criminal law when a civil law alternative is readily available
International jurisprudence also supports the view that Governments and public authorities as such should not be able to bring actions against defamation, or insult. It should also be noted that the Human Rights Committee has also called for the eradication of the offence of “defamation of the State”.
While the European Court of Human Rights (ECtHR) has not entirely ruled out defamation suits by Governments, it appears to have limited such suits to situations which threaten public order, implying that Governments cannot sue in defamation simply to protect their honor. A number of national courts (e.g. in India, South Africa, the United Kingdom, the United States, Zimbabwe) have also refused to allow elected and other public authorities to sue for defamation.[9] In a landmark British case[10], the House of Lords found:
“It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech…. What has been described as “the chilling effect” induced by the threat of civil actions for libel is very important. Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available. This may prevent the publication of matters which it is very desirable to make public.”
So, it is reasonable to accept that “the Government” as an entity should have no standing to bring a case for defamation. The government is an institution, not a person, and as such enjoys no right to a reputation.
2.3 Defamation Laws in Bangladesh
- The Penal Code 1860
Chapter 21 Section 499 of Bangladesh’s penal code provides that[11]:
“whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publish any imputation concerning any person intending to harm, or knowing or having the reason to believe that such imputation will harm, the former person will be liable to the latter.”
The statue also outlines a list of exceptions. Accordingly, it is not defamation:
(1) to impute anything which is true concerning any person, if it be for public good;
(2) to express in good faith any opinion respecting the conduct of a public servant in the discharge of his public functions or respecting his character;
(3) to express in good faith any opinion respecting the conduct of any person touching any public question;
(4) to publish a substantially true report of the proceedings of a Court of Justice;
(5) to express in good faith any opinion respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice;
(6) to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public;
(7) in a person having over another any authority, either conferred by law or arising out of a lawful contract made with the other, to pass in good faith any censure on the conduct of the latter in matters to which such lawful authority relates;
(8) to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation;
(9) to make an imputation on the character of another, provided that the imputation be made in good faith for the protection of the interest of the person making it, or for the public good;
(10) to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed.
The scope of this act only covers publications made by writing, drawing or printing. Imprisonment under this section shall not exceed two years.
- The Information Technology and Communications Act 2006
Section 57 of the ICT Act 2006 provides[12]:
(1) If any person deliberately publishes or transmits or causes to be published or transmitted in the website or in electronic form any material which is fake and obscene or its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, or causes to deteriorate or creates possibility to deteriorate law and order, prejudice the image of the State or person or causes to hurt or may hurt religious belief or instigate against any person or organization, then this activity of his will be regarded as an offence.
(2) Whoever commits offence under sub-section (1) of this section he shall be punishable with imprisonment for a term which may extend to maximum 14 years and minimum 7 years and with the fine which may extend to taka ten crore.
This is the latest law concerning defamation in Bangladesh. It covers any publications made in electronic form.
3. Criticism of current defamation laws
Presently the PC 1860 and the ICT Act 2006 are the only two authorities regarding defamation in Bangladesh. The government can also impose restrictions on the fundamental right of thought, conscience and speech (and media) if the content of such speech or expression is considered to be defamatory to an individual person. However, the worst aspect of the current defamation laws is undoubtedly section 57 of the ICT Act 2006. Since its inception the section has been the cause for much controversy, as it resulted in the filing of hundreds of cases under “defamation”. The section contains vague wordings, allowing its misuse against newsmen and civilians using social media.
3.1 Unconstitutional Aspects of Section 57
- Incorrect inclusion of State as a Party. Section 57 includes the words “prejudice the image of the State”, which is a big inconsistency because the term ‘State’ includes all members of Parliament, including the Speaker, the Deputy Speaker, the President, and all Ministers including the Prime Minister, and all statutory public authorities. It was previously understood legal principles we can infer that inclusion of the state in defamation laws is highly undemocratic, and thus, highly unconstitutional.
- Inconsistency with the contents of Article 39: The section failed to comply with, and remained inconsistent with, the contents of ‘freedom of expression’ as provided in the international instruments. Because, political discourse, discussion of human rights and open rational journalism, being important contents of the freedom, cannot be ousted merely by the fact that such exercise of freedom opposes the Government’s decision or policy in a particular matter. This takes away the right of the Media to criticize the Government on electronic platforms. The scope for imposing “reasonable restrictions” on the freedom of speech and press in light of defamation should only apply to the protection of the fundamental rights of an individual, not for the protection of reputation of an organization or the government.
- Inconsistency with Section 499 of the Penal Code 1860: Section 57 is consistent with section 499 of the Penal Code, 1860, as it does not contain the same exceptions, such as, ‘fair comment’, ‘revealing the truth’, ‘publication of accusation by the Court’ etc. According to section 57, the media channels and websites are publishing or transmitting ‘defamatory’ statements and materials every day. Section 57 is also inconsistent with the provisions of the PC in the context of its ambit and subjects. Section 499 of the PC is concerned with publishing “any imputation concerning any person”, whereas section 57 includes the publication of defamatory statements against the government and religions as well. It was previously shown that the modern democratic “states” cannot sue “individuals” for defamation, and individuals can’t sue each other under defamation for hurting religious sentiments. There may possibly be a reasonable argument for limiting hate speech against religious groups, but this should not be included in defamation laws.
- Direct Negative Impacts on National Media: Bloggers, journalists, newspapers, TV channels, social-media-users are directly affected by the atrocity that is section 57. Journalists are in a constant fear of sanction from the Government. This fear or mindset of deference are slowly pushing the medias towards ‘self-censorship’, which is a process used in authoritarian countries. The role of media as the watchdogs of society is being diminished.
- Harassment of persons accused: The term ‘intention’, being a state of mind, cannot be readily inferred from the very act. The proof of such intention in the procedure of trial may be possible with reference to the circumstances under which such act was done. Therefore, there is a big room to arrest a person and harass him/her through apprehension, search, seizure etc., despite the fact that the alleged intention could be proved or not.
4. Conclusion
The danger with the current criminal defamation laws is that the involvement of the state in prosecuting alleged defamers shifts the matter very quickly into the punishment of any kind opposition. It creates an environment where the government becomes too empowered and that disrupts the balance of democracy. At the least it gives additional and excessive protection to officials and government.
The underlying philosophy behind the section 57 is undemocratic to say the least. The philosophy behind this provision appears to be the creation of loyalty through fear. Armed with this political weapon disguised as a law, the government can restrict the publication of the flaws contained in their policies and quash any opposing foe. Such unjust and authoritarian mindset is an absolute consequence of blindly following colonial administrative mechanisms. This is, unfortunately, a sad reality for many post-colonial countries. A total lack of responsibility and accountability of the autocratic ruling elite, and a complete disregard for democratic values is why a law like this exists in our Country. Petitions for reform will not be heard unless a true democracy can be established.
[1] The writer is a student pursuing her LL. B from University of London via a distance learning programme from London College of Legal Studies (South), Dhaka (Bangladesh)
[2] Universal Declaration of Human Rights, UNGA Res 217 A (10 Dec 1948)
[3] UNGA Res 87 (14 December 1946) UN Doc A/Res/42 (I)
[4] Handyside v UK (1976) 1 EHRR 737
[5] Shelton v Tucker (1960) 364 US 479
[6] The Constitution of the People’s Republic of Bangladesh, Art 39
[7] The Editors (ed), ‘Defamation’ in Encyclopædia Britannica (1998) <https://www.britannica.com/topic/defamation>
[8] Amorim Giestas and Jesus Costa Bordalo v Portugal, app. No. 37840/10 (2014)
[9] Mr. Abid Hussain, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (2000) E/CN.4/2000/63
[10] Derbyshire County Council v. Times Newspapers Ltd, [1992] 3 All ER 65 (CA), affirmed [1993] 2 WLR 449.
[11] The Penal Code 1860
[12] The Information Technology and Communications Act 2006