Comparison of our freedom of expression
BANGLADESH has Defamation Act dates back to1898. Too little has been done to upgrade it. The defamation suits had so far been used as a tool to harass opponent and to ventilate the personal grudge. In absence of a time befitting defamation law, the issues are coming within the purview of contempt of court, Information and Communication Act and more likely to be caught under recently introduced controversial Broadcast policy. The Acts did speak about the utter disregards of democratic value and sentiments.
A time befitting Defamation Act took place in UK by Defamation Act 2013 with the participation of hundreds of organisations, citizens, scientists, writers and online forums. Its aim is to “overhaul and bring them into the 21st century.” Many criticised that it tilted in favour of defendant where the journalist is a prominent party.
Whatever way one looks at, it gives lessons worthy for a country like Bangladesh as far as its process, contents and the way it developed especially when our government shows intolerance with anyone who differs. However, if the defamation law is reformed with the way people and society has been tuned to cyber world and Government's belief of 'Digital Bangladesh' many controversial laws like ICT, Broadcast Policy even Special Power Act would not be required.
As per Defamation Act 2013, there are two forms of defamation: Libel by publishing a defamatory statement in permanent form, while slander in transient forms, such as speech. Defamation against the media can defame someone by publishing materials like newspapers or other printed media, electronics and web/ online forums, social media etc. In explaining the ruling, Lord Judge, LCJ said that as a consequence of modern technology and communication systems, stories can “go viral” more widely and more quickly than ever before and courts cannot treat Twitter and Facebook as if a casual chat in the pub. As the law of UK goes, defamation occurs in the estimation of right-thinking members of the public being shunned or avoided; disparaging in office/ trade or profession and exposes one to hatred ridicule or contempt. Under that new law claimants to show that the publication has caused, or is likely to cause, 'serious harm' to their reputation or for a company 'serious financial loss'.
In the UK, individuals, legal bodies can, whereas, Trade Unions, political parties and unincorporated organisations, elected authorities cannot sue for defamation over their governmental or administrative functions, but they may sue for malicious falsehood. A member of a political party may also sue for libel over defamatory statements about the party concerning personal reputation.
Now, press in Bangladesh, before being measured in the court, cannot be tried arbitrarily. Constitution of People's Republic of Bangladesh in Article 39 upholds the right to freedom of expression. Article 43 provides protection of privacy to the citizen. On the other hand, section 57 of ICT Act given the power to law enforcers to arrest any person without warrant as a non bail able offence. Facebook suspended for a week on 29 May, 2010 for national security issues and recently, 7 years imprisonment by the Cyber Tribunal for “a derogatory song” seems to be the beginning and many more are forthcoming. Introducing broadcasting policy, drafting an online media policy cannot be welcomed by the press already constrained with sedition and criminal libel laws, contempt of court, 1974 Special Powers Act etc.
Section 499 of our Penal Code; and in civil liability, in Bangladesh, any person can file a petition in a civil court. Every citizen to protect his/her reputation can sue for damages for libel and slander. This is inadequate in its definition and explanation. The civil liability for defamation to pay compensation is not governed by any statutory law in Bangladesh; rather by the principles of equity of UK and other countries. If they have changed, why shouldn't we? Instead, going back to 'bygone era' and tighten the rope of freedom of expression is suicidal.
So far few case laws are found on defamation, printing and electronic media increases, so is the use of internet getting deep into the lives of locals, the necessity to bring reform in the law of defamation cannot be left for another day. Time befitting amendment could resolve the necessity to justify the enactment of many laws those are unnecessary, irrational and oppressive. From 1996 till July 2013, a total 124 proposed reports were found on various legal matters. One of such reports was on defamation Law in the year 2007 that recommended for no amendment. In any consideration, this may not sound rational as this is the 21st century, when so many activities of our lives have changed. We can strike out balance between our freedom of expression and right to reputation/privacy. Undoubtedly, Bangladeshi defamation law is deficient, weak to respond the demand of growing society. Defaming should be everybody's business every day not just the headache of Government alone. Freedoms of speech should not be burdened for not agreeing. Tolerance and respect not emotion should control us. If properly looked into, Defamation Act should be able to save publishers, editors from frivolous lawsuits and at the same time root out “stories that are not newsworthy”.
As the new UK Defamation Act started functioning, the UK citizens see their rights are realised. The citizens of Bangladesh having live in a global village, in information dominated age cannot see their rights not protected this or that way be it a journalist or simple facebook users.
The writer is Head of Press & Publication-ICAB.
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