Restrictions on freedom of expression | The Daily Star
12:00 AM, October 06, 2015 / LAST MODIFIED: 12:00 AM, October 06, 2015

Human Rights Analysis

Restrictions on freedom of expression

CONSTITUTIONALLY protected freedom of expression is one of the fundamental rights in Bangladesh. Article 39 of the Constitution of the People's Republic of Bangladesh ensures this right 'subject to reasonable restriction imposed by law'. Freedom of expression reinforces most other rights and allows them to embellish. The right to speak your mind freely on important issues, access information and hold the powers that be to account, together play a vital role in the healthy development process of any society. If people are unable to communicate effectively their ideas, views, worries and needs, they are often excluded from the meaningful participation in the society, and from the opportunity to better their own circumstances.

The right to freedom of opinion is the right to hold opinions without interference, and cannot be subject to any exception or restriction. The right to freedom of expression extends to any medium, including written and oral communications, the media, public protest, broadcasting, artistic works and commercial advertising. However, the right is not absolute. It carries with it special responsibilities, and may be restricted on several grounds. For example, restrictions could relate to filtering access to certain internet sites, the urging of violence or the classification of artistic material.

The right to freedom of opinion and expression is contained in articles 19 and 20 of the International Covenant on Civil and Political Rights (ICCPR). Further, articles 4 and 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), articles 12 and 13 of the Convention on the Rights of the Child (CRC) and article 21 of the Convention on the Rights of Persons with Disabilities (CRPD) guarantees the freedom of expression and opinion.

When working on a measure that restricts freedom of expression, you should ask yourself whether the measure can be justified under the permitted grounds for restriction, whether it will be effective to achieve the desired ends, whether it impinges on freedom of expression to a greater degree than is necessary and whether there are less restrictive means of achieving the desired ends.

The requirement to prohibit advocacy of hatred that constitutes incitement to discrimination contains mandatory limitations on freedom of expression. You will need to consider the requirement if you are working on legislation, a policy or a programme that regulates offensive speech or the publication and/or broadcast of offensive material.

Article 19(1) of the ICCPR states that everyone can hold opinions without interference cannot be subject to any exception or restriction. The right in article 19(2) protects freedom of expression in any medium, for example written and oral communications, mass media, public protest, broadcasting, artistic works and commercial advertising. The right protects not only favourable information or ideas, but also unpopular ideas including those that may offend or shock (subject to limitations). Freedom of expression carries with it special responsibilities, and may be restricted on several grounds, discussed further below.

Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant, including the right to freedom of opinion and expression 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. In addition, under article 19(3) of the same Covenant, freedom of expression may be limited as provided for by law and when necessary to protect the rights or reputations of others, national security, public order, or public health or morals.

The national security limitation would justify prohibitions on transmission of information, including 'official secrets', which would adversely affect the security of the nation. On the other hand, 'public order' is understood to mean the rules which ensure the peaceful and effective functioning of a society. The limitation in article 19(3) would justify prohibitions on speech that may incite crime, violence or mass panic, provided the prohibition is reasonable and effective to protect public order or national security, and restricts freedom of expression no more than is necessary to protect the same.

The Human Rights Committee established under the ICCPR has stated that there is no universally applicable standard for what constitutes public morality. A restriction on certain pornographic material, for example pornographic material depicting minors, would be an example of a limitation on freedom of expression based on public morality.

The right to freedom of opinion and expression may also be relevant to the right to freedom of thought, conscience and religion under article 18 of the ICCPR; the right to peaceful assembly under article 21 of the ICCPR; the right to freedom of association under article 22 of the ICCPR.

 

THE WRITER IS AN ADVOCATE AND SOCIO-LEGAL RESEARCHER.

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