Today in the era of globalisation and internet, online journalism has supposedly become a popular platform to hold opinions and impart information without interference regardless national frontiers. Across the countries, social media networks like Facebook, Twitter, or blogs have already shown their strength to mobilise and empower people. At this end, the sense of public's right to information coupled with freedom of the press has now widened the scope of journalism for many countries including Bangladesh. However, the perils online journalism carries with it cannot be overlooked so easily. Recent brutal killings of bloggers and online journalists or creative writers in Bangladesh are some instances which show how and to what extent online journalism is struggling in order to ensure people's right to information and to exercise its own freedom for the purpose of disseminating news and views. At the faces of these challenges, online journalists – be professional journalists or untrained citizens who nevertheless produce journalistic content – are in need of press freedom.
However, as the statistics prevails now, recent years happen to be alarming and challenging for the press and media in Bangladesh. Published on 20 April 2016 by 'Reporters Without Borders', the World Press Freedom Index 2016 shows that the situation of press freedom in Bangladesh is clouded with a climate of fear and tension juxtaposed with increasing control over newspapers by governments and private-sector interests. Being ranked 144 out of 180 countries, Bangladesh possesses an abuses-score of 57.84 which reflects the intensity of violence and harassment to which the journalists and other news and information providers of offline or online spheres were subjected during the year of 2015. More frighteningly, the Country Report on Human Rights Practices for 2015 (released on 13 April 2016 by the US Department of State), reveals that Bangladesh sometimes fails to respect and protect freedom of the press for its citizens.
The Constitution of Bangladesh in its article 39(2) ensures freedom of the press. However, this freedom is not an absolute one, since reasonable restrictions can be imposed on several grounds. In reality, restriction has been brought in section 57 of the Information and Communication Technology (ICT) Act, 2006 (as amended in 2013), under which a punishment of 14 years imprisonment can be given to anyone for deliberately publishing or transmitting false, obscene and derogatory information in a website or in any other electronic form. Among others, prejudicing the image of the State or person, or causing to hurt or about to hurt anyone's religious belief, or instigating against any person or organisation – is a punishable offence. This section embodies uncertainties as to legal interpretation of the restrictions mentioned above. In other words, the section affronts the principle of legality which requires that a law mainly the one which limits fundamental right and freedom must be clear enough to be understood and must be precise enough to cover only the activities connected to the law's objective. Even the threshold for being satisfied to impose restrictions is associated with an apparent risk that might facilitate the government to misuse the law with an option to be arbitrary and unjust against those holding dissenting opinions online.
The severity of punishment under this section is also questionable. The highest punishment for the similar offence is five-year imprisonment under the Pornography Act, 2012 (section 8(3)) and two-year imprisonment under the Penal Code, 1860 (section 500).
Upon the emergence of online activists and bloggers, such a law can be seen to curb freedom of speech and expression for the online journalists, sooner or later even engendering freedom for the open and pluralistic press to emerge. Furthermore, section 46 of the same Act highly empowers the government-appointed controller to block online content based upon his own (subjective) satisfaction. Print media due to their online versions has the possibility to suffer the danger of being harassed by dint of this section.
On 19 April 2016, the High Court in Nairobi has found section 29 of the Kenya's Information and Communication Act, regarding 'improper use of a licensed telecommunications system,' to be in conflict with article 33 of the Kenya Constitution, which guarantees the right to freedom of expression. Since 2015, this section has been allegedly used by the government to criminalise publishing information online. The Kenyan Court has opined that some terms of the law such as 'grossly offensive', 'indecent', 'obscene', etc. are overreaching and broad (see, Geoffrey Andare v Attorney General ).
Similarly in 2015, the Supreme Court of India has struck down section 66A of the Information Technology Act that restricts citizen's constitutional right to express freely their own views. The Supreme Court has viewed that empowering police in India to arrest people for making comments on Facebook and Twitter, directly offends democratic values of India (see, Shreya Singhal v Union of India ).
As the Kenyan and Indian experience suggests, what can never be compromised is people's right to know which is now best be exercised and ensured through a free, vibrant and fearless online journalism. A similar case challenging the constitutionality of section 57 of the ICT Act is now pending in the Supreme Court of Bangladesh. Apart from this one, two other similar challenges on the issue of section 57, non-bailable nature of offence and wide discretionary power of the police under the ICT Act were summarily rejected by the Court on 30 August and 2 September 2015 respectively. While rejecting the petition, the Supreme Court observed that the government was considering taking some steps regarding the law. As we know, the government has been planning to enact a cyber-security law which has already been criticised for being much harsher than the existing ICT Act.
Unusual imposition of restrictions upon freedom of the press and online journalism has become a common scenario in Bangladesh. Indiscriminate abuse of sedition law and section 57 of the ICT Act, and treating defamation as a criminal offence are now threatening the existence of free press. This way of curtailing freedom is nothing but keeping editors and journalists under constant threat, the fact of which are not actually in favour of ensuring the rule of law, human rights and democracy in a country. The sooner we understand this, the better we progress as a nation.
The writer is a Lecturer of Law, University of Asia Pacific.