MEDIA LAW IN BANGLADESH

MEDIA LAW IN BANGLADESH

Prior to the independence, Bangladeshi media history began under the authority of external governments. Another landmark measure took effect in 1965 under the Pakistani Government, the Defiance of Pakistan Ordinance, which restricted the freedom of Press altogether. On September 16^th, the Information Minister said the future legislation will include an Act titled “Television Network( Management and Control) Act, 2002. The law may provide the commercial activities of Cable operators and distributors.

Not all types of media are created the same

The government treats different types of media very differently when it comes to regulations and oversight. Broadcast media has the greatest amount of regulation. By contrast, subscription radio and the internet have far fewer regulations.

A media lawyer who works in film might help their clients with option agreements, distribution contracts and issues with talent. Multimedia lawyers may need to work on software licensing or sale regulations. Attorneys who practice media law need to understand their client’s business in order to provide legal advice that’s pertinent to the type of media involved.

Media law often intersects with other types of law

In addition to laws that directly regulate the use of media, media law involves other types of laws. One of the fields that’s often an issue in the use of media is intellectual property law. With piracy and image reproduction commonplace today, media producers and other organizations struggle to protect their trademarks and copyrights. In addition, media law may involve many other types of law including:

1. Employment issues
2. Contract laws
3. Crime
4. Torts
5. Labor issues
6. Tax laws
7. Bankruptcy
8. Immigration
9. Insurance regulations

Federal Communications Commision regulations and Free Speech

One of the biggest questions in media law is the question of federal regulations and the constitutional limits of free speech. Even though the First Amendment to the U.S. Constitution guarantees an individual’s right to free speech, there are limitations on broadcast speech that the Federal Communications Commission considers obscene. In the 1973 Miller v California case, the U.S. Supreme Court said that there are obscenity limitations to free speech in broadcast media.

The FCC continues to regulate speech in free-to-consumer broadcasting like radio and television. Internet content providers, satellite and cable providers don’t have corresponding limitations. The FCC may issue fines for words they consider obscene. In 1978, the U.S. Supreme Court confirmed the FCC’s power in this regard in the FCC v Pacifica Foundation case.

Regulations in print media

Media law includes regulations in books and newspapers. In 1991, in the Simon and Schuster Inc v. Members of the New York State Crime Victims Board case, the U.S. Supreme Court declared a law invalid that allowed the state to confiscate income from a book written by a person convicted of a crime. The court said that the law singled out income from a convicted person’s behavior. They said that they didn’t want to limit speech that’s helpful to a society.

Developing laws

Media law continues to change and grow. Media lawyers are a part of the developments in the legal niche. One modern media law debate is net neutrality. The issue of net neutrality surrounds whether media outlets like internet providers should be able to give certain types of content priority over other types of content when they operate their networks.

Proponents of the policy say that giving preference based on content is tantamount to censorship. Opponents of net neutrality say that some consumers, like internet-based visual media company Netflix, use a disproportionately large amount of bandwidth that can slow down other users. Media lawyers advocate for their clients on this issue that impacts almost everyone in the United States.

Local practice

While most media lawyers work for larger media outlets, even a local lawyer in a smaller city may encounter media law in their practice. Local television stations employ on-air talent for their local news shows. An on-air talent might rely on a local lawyer for contract negotiations. In addition to on-air talent, local television stations may occasionally have disputes with their network companies. When a network has a dispute with their local affiliate, the local affiliate may turn to a lawyer in the community to help them resolve the issue.

International media issues

In addition to uniquely local media law issues, there are also international issues to be aware of. Other countries may have more or fewer content limitations for media than exist in the United States. There may be different rules and customs regarding piracy and intellectual property rights. Media law may even involve helping a media outlet lawfully send a reporter to another country in order to prepare a report.

Advertising and the legal profession

Media law impacts lawyers too. In Bates v. State Bar of Arizona, the U.S. Supreme Court said that lawyers may advertise including on television.

Opponents of the practice say that legal advertising is distasteful and brings the legal profession into disrepute. They say that advertising may lead to an increase in frivolous litigation. They say that lawyers may pass the costs onto consumers in the form of higher fees. However, advertising proponents say that an increase in the number of lawyers makes advertising necessary for lawyers to find clients.

Today, most law firms advertise their services. Lawyers advertise using websites, online ads, television, radio and even print ads. Laws that apply to defamation and fraud apply to legal advertisements in addition to other media laws that may apply.

Who practices media law?

Media lawyers may work in private practice or for the government with the Federal Communications Commission. Most media lawyers work as in-house counsel or they work for mid-size and large law firms. However, lawyers who represent individual talent may work either as a solo practitioner or directly for a talent agency.

Media lawyers are both transaction lawyers and litigation specialists. Lawyers in media law spend a great deal of time advising their clients about how to comply with the law. They may also negotiate contracts. Lawyers may also work as advocates for their clients as they seek new laws or modifications to existing law.

Serving as an effective media lawyer likely requires a diverse skill set. When a media organization has a dispute that may result in litigation, they’re likely to reach out to the same attorney that helps them negotiate a contract or comply with regulations. In addition, when disputes arise, media lawyers need litigation skills as well as alternative dispute resolution skills.

Why Become a Media Lawyer?

Media law is exciting. Media lawyers can work with the companies or the talent that they see on television. Lawyers who specialize in media law must be great communicators as they advise their clients in the many different types of law that impact the media including trademarks, copyrights, employment law and dispute resolution. Lawyers who are looking for excitement and a challenge may enjoy media law as a legal specialty.

When media law takes a leading role

From complying with government regulations to negotiating agreements, media lawyers perform important and diverse services for their clients.

 Media Laws and Regulations prevalent in Bangladesh:

The media of Bangladesh got their freedom from the Supreme law of the land, namely, the Constitution of Bangladesh. Article 39 of the said Constitution[1] deals with freedom of thought, conscience and of speech.

Various media laws and regulations regulate the media of Bangladesh. Important provisions of these laws are as following:

The Cinematograph Act,1918( Act No.II of 1918):

(a) the rules made under the Act have been substantially complied with; and

(b) adequate precautions have been taken in the place in respect of which the licence is to be given to provided for the safety of persons attending exhibitions therein.

(2) A condition shall be inserted in every licence that the licensee will not exhibit, or permit to be exhibited, in such place any film other than a film which has been certified as suitable for public exhibition by 1[ the authority] constituted under the Censorship of Films Act, 1963, and which, when exhibited, displays the prescribed mark of that authority, and has not been altered or tampered with in any way since such mark was affixed thereto.

(3) Subject to the foregoing provisions of this section, and to the control of the 2[ * * *] Government, the licensing authority may grant licences under this Act to such persons as it thinks fit, and on such terms and conditions, and subject to such restrictions as it may determine.

Section 6. Punishment for contravention of this Act and rules made thereunder

(1) If any person is convicted of an offence punishable under this Act committed by him in respect of any cinematograph, film or cassette, the convicting Court may further direct that the cinematograph, film or cassette shall be forfeited to the Government.

Section 9. Power to exempt:

The Government may, by order in writing, exempt, subject to such conditions and restrictions as it may impose, any cinematograph exhibition or class of cinematograph exhibitions from any of the provisions of this Act or of any rule made thereunder.

The Censorship of Films Act, 1963( Act no. XVIII of 1963):

Section no.3:  Constitution of the Board

Section 4. Certification of films

(1) A person may submit a film to the Board, together with an application in the prescribed form, for granting a certificate that the film is suitable for public exhibition:

Provided that the Board shall not accept any feature film, not being a foreign film, for the purpose of examining its suitability for public exhibition if the total length thereof exceeds fourteen thousand feet, except where, on a request from the film producer, the Government has, for any special reason, previously agreed to relax the said limit.]

(2) If 2[ the Board] after examination considers that a film is suitable for public exhibition, it shall grant a certificate to that effect to the person applying for the same and cause the film to be marked in such manner as may be prescribed.

(3) A certificate granted under sub-section (2) shall, subject to the provisions of this Act, be valid for the whole of Bangladesh, for such period, if any, as may be specified in the certificate.

(4) Where any period is specified under sub-section (3), the Board may, on application in this behalf, extend such period, or the period so extended, or dispense with the period so specified or extended.

(5) If the Board, after examination under section 4A, considers that-

(a) a film is as per Rules framed under this Act for public exhibition in Bangladesh, it shall refuse to grant the certificate of the film for public exhibition and shall inform the decision of refusal to the person applying for the certificate within fifteen days from the date of its decision;

(b) a film is not suitable for such public exhibition but may be suitable-

(i) if made restricted to the members of any profession or any class of persons; or

(ii) only for a specific period; or

(iii) if a specified portion thereof is excised;

it shall inform the person applying for the certificate within fifteen days from the date of its decision.]

(6) [Omitted by section 4 of the Censorship of Films (Amendment) Act, 2006 (Act No. I of 2006).

Section 4B. Appeal:

(1) Any person who is aggrieved by any decision of the Board under this Act may, within thirty days of the date of receipt of such decision, prefer an appeal to the Government.

(2) An appeal preferred under sub-section (1) shall be disposed of in the prescribed manner.

(3) If an appeal is preferred against the decision-

(a) under sub-section (4) of section 4, the Government shall direct, by order in writing, that the certificate granted under sub-section (2) of section 4 shall be valid only for the period specified therein, or for the period extended under sub-section

(4) of section 4, or for such period as may be specified in the order;

(b) under clause (a) of sub-section (5) of section 4, and if the appeal is rejected, the Government shall, by notification in the official Gazette, declare that the film to which the appeal relates shall be deemed to be an uncertified film in respect of the whole of Bangladesh;

(c) under clause (b) of sub-section (5) of section 4, and if the appeal is rejected, the Government shall inform the person applying for the certificate within seven days from the date of its decision.

(4) No appeal under this section shall be disposed of without giving an opportunity to the appellant for representing his views in the matter.

(5) The decision of the Government under this section shall be final.

Section 5: Suspension of Certificate:

(1) Notwithstanding anything contained in sub-section (3) of section 4, 2[ the Chairman may, if he is] of opinion that a certified film should not be publicly exhibited, by order, suspend, pending the orders of the Government under sub-section (4), the certificate in respect of that film.

(5) Omitted by Article 7 of the Censorship of Films (Bangladesh Amendment) Order, 1972 (President’s Order No. 41 of 1972).

Section 6A. Publicity Materials of Certified Films

Section 7A: Seizure of film

Section 8: Penalty:

(1) Whoever-

(a) exhibits or causes or permits to be exhibited in any place, or abets the exhibition of, an uncertified film, or a certified film which does not show the mark of the Board;

(b) without lawful authority alters or tampers with, in any way, any film after it has been certified or since such mark was affixed thereto;

(c) exhibits an unapproved publicity materials;

(d) without lawful authority alters or tampers with, in any way, any publicity materials after it has been approved;

(e) contravenes any other provision of this Act or rules made thereunder;

shall be punishable with imprisonment for a term which may extend to three years, but shall not be less than one year, or with fine which may extend to taka ten thousand, or with both; and in case of continuing offence with a further fine which may extend to taka five thousand for each day during which the offence continues.

Section 9: Procedure:

Section 15. Bar to Legal Proceeding

Section 16.No order of Injunction, etc without hearing the Board:

Notwithstanding anything contained in any other law for the time being in force, no Court shall grant an injunction or make any interim order in respect of any order passed under section 4, 5 or 7 without giving the Board an opportunity of being heard.

Notification of Ministry of Information

Regarding Censorship and public exhibition, there is a notification of Ministry of information dated 16^th November 1985, which is as follows:

Application of general principles.- In the light of the broad principles, a film shall be regarded as unsuitable for public exhibition if it has the feature given below :-

 Security or Law and Order :

(a)       Brings into contempt Bangladesh or its people, its tradition, culture, custom and dress.

(b)       Tends to undermine the integrity or solidarity of Bangladesh as an independent state.

(c)       Violates any instruction issued by the Government from time to time in the interest of preservation of Law and order and, of the security aspects of the country.

(d)       Portrays sedition, anarchy or violence with political motive.

(e)       Reveals military or other official secrets likely to affect security of the state.

(f)        Leads to breach of law and order or creates sympathy for violation of laws.

(g)       Ridicules or brings into contempt the Defense Forces, Police Force or any other Force responsible for maintenance of law and order in the country. Portrayal of any character falling in this category in a manner that might help  to correct any corrupt element therein will be permissible.

(h)       Portrays the Defense Forces or Police Force in derogatory uniforms.

(i)        Gives a general impression of predominance of violence and lawlessness in the country and shows forces of law absent or inactive.

(j)        Has an inadequate story intended to cover-up sequences predominantly consisting of lawlessness, violence , crimes or spying likely to affect adversely the average audience.

N.B.- While invoking sub-clause (a), place and context should be taken into full consideration.

International Relations:

(a)       Contains propaganda in favor of a foreign state having a bearing on any point of dispute between it and Bangladesh or  against a friendly foreign state which is likely to impair good relations between it and Bangladesh.

(b)       Violates the third country principle, that is which adversely affects friendly relations with the other country or countries or wounds the susceptibilities of foreign nations.

(c)       Portrays maliciously incidents or sequences which are prejudicial to the prestige or history of any people, race or nation.

(d)       Distorts historical facts particularly maligning Bangladesh and its ideals and heroes.

Religious Susceptibilities:

(a)       Ridicules, disparages or attacks any religion.

(b)       Causes hatred or strife among religious sects, castes or creeds.

(c)       Exploits religion to denounce or uphold controversial social issues.

(d)       Ridicules religious persuasions so as to offend its believers.

Immorality or Obscenity:

(a)       Condones or extenuates acts of immorality.

(b)       Over emphasizes, glamorizes or glorifies immoral life.

(c)       Enlists sympathy  or admiration for vicious or immoral character.

(d)       Justifies achievement of a noble end through vile means.

(e)       Tends to lower the sanctity of institution of marriage.

(f)        Depicts actual act of sex, rape or passionate love scenes of immoral nature.

(g)       Contains dialogue, songs or speeches of indecent interpretation.

(h)       Exhibits the human form, actually or in shadow graphs-

(i)    in a state of  nudity;

(ii)       indecorously or suggestively clothed;

(iii)    indecorous or sensuous posture.

(j)        Indecently portrays national institutions, traditions, custom or culture.(This covers kissing, hugging and embracing which should not be allowed in films of sub-continental origin. This violates accepted canons of culture of these countries . Kissing may, however, be allowed in case of foreign films only. Hugging and embracing may be allowed in sub-continental films subject to the requirements of the story, provided that the same do not appear to be suggestive or of suggestive nature.)

N.B.- (i)     Deception of attempts or indication to rape may be permissible on when it is intended to condemn it.

(ii)    Bikini or bathing costume scene may be permissible in case of foreign films.

(iii)   Modern dress and suitable bathing costume in local production may be allowed in export quality films, provided these are of modest  presentation.

Bestiality:

(a)       Exhibits wanton cruelty to animals.

(b)    Shows exaggerated horror, torture or cruelty or suffering which creates severe adverse reaction among the spectators.

(c)    Depicts third degree methods unless otherwise it is for the betterment of the society.

Crime :

(a) Condones criminal acts.

(b) Portrays the modus operandi of criminals which may help to introduce new methods of crime.

(c) Makes heroes of criminals or elicits sympathy of audience on their behalf.

(d) Maliciously ridicules or belittles public officers engaged in the prevention or detection of crime or punishment of criminals or entrusted with the dispensation of justice.

(e) Suggests wrong-doings or criminal activities as profitable or as normal incidents of ordinary life.

(f) Overemphasizes criminal activities in such a way as to arouse sympathy.

(g) Familiarizes the adolescents and young people with crime and acts of violence as normal incidents of ordinary life and not to be reprobated.

(h) Shows science as a means of acquiring devilish powers by master criminals and highly equipped and most modern laboratory as his headquarter.

(i) Upholds trafficking women, children, liquor, drugs, and smuggling of any kind.

Plagiarism:

Plagiarism in any form from any old or under production foreign or Bangladeshi film.

N.B.-  (i)       A plagiarized  film is that which comes to near the original as to suggest the original in the mind of every person seeing it.

(ii)      Plagiarism shall not, however, be deemed to prohibit exceptions being made in suitable cases in the local production of well-known classics of folk-tales or where a producer of an old film produces a better version of his film or he is legally authorized to remake or reproduce the original.

The Indecent Advertisements Prohibition Act, 1963( Act no XII of 1963)

Definition of Advertisement:

Section 2(a) “advertisement” includes any notice, circular or other document, displayed on any house, building or wall, or published in any newspaper or periodical, and any announcement made orally or by any means of producing or transmitting light or sound, but does not include trade circulars issued by manufacturers of drugs to medical practitioners.

Definition of Indecent:

Section 2(b) of the Act, indecent includes whatsoever may amount to any incentive to sensuality and excitement of impure thoughts in the mind of an ordinary man of normal temperament, and has the tendency to deprave and corrupt those whose minds are open to such immoral influence.

Section4. Penalty:

Whoever contravenes any of the provisions of this Act shall, on conviction, be punishable-

(a) in the case of a first conviction, with imprisonment which may extend to six months, or with fine, or with both; and

(b) in the case of any subsequent conviction, with imprisonment which may extend to one year, or with fine, or with both.

Section 5. Confiscation of documents, etc, containing indecent advertisements

Section 6. Offences by companies:

(1) If the person contravening any of the provisions of this Act is a company, every person who at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:

Section 7.       Complaint by a police officer

Without prejudice to the right of any other person to make a complaint of an offence under this Act, a Police Officer not below the rank of sub-inspector who receives information that such an offence has been committed, shall, if he is satisfied as to the truth of the information, make a complaint of the offence in writing to the nearest Magistrate having jurisdiction.

Section 10. Indemnity:

No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act.

Private Broadcast Media( Radio and Television) Bill 2004 and Future of Private Broadcast Media

Former Information Secvretary AMM nasiruddin said that” Preparation of uniform guidelines has become urgent as the information ministry continues to receive applicationsfor permission to run private radio and satellite televisioin the Information Ministry said they have so faar received around 30 applications for private satellite television channels and 15 for radio.[2],

At present, ATN Bangla, Channel I and ntv are on air while ITV, UTV and JTV have failed to start telecast within 365 days of getting permission as per rule. ETV’s contract was cancelled in line with a Supreme Court order. Two separate policy guidelines were prepared in 1998 for private radio and Television channels but the Government later decided to formulate a comprehensive policy to encourage competition and ensure professonalism in the electronic media. The Information Secretary said that “ we have already collected the policies and regulations of other SAARC countries and a committee is working on the proposed regulations.” New radio or TV channels may get permission before the passage of the Bill if the Government decides to permit any on urgent basis, he said.

Currently, Bangladesh has no law for private radio and television channels.

The Authority uses some acts including the Wireless Telegraphy Act, 1885, the Telegraph Act, 1933 and Bangladsh Telecommunications Regularotory Commission(BTRC) Act, 2001, to allocate frequency for and oversee technological aspects of the channels. After the ETV scandal, the Information Ministry worked out a draft regulation aiming to give it a legal form.

According to the draft, all private satellite channels would require licence, a provision that does not exist in the existing guidelines. It says the channels  already on air – ATN Bangla, Channel I and ntv would require fresh licences under the new law .The draft also proposes government permission for transfer of shares and licences, strict enforcement of Bangladesh Telecommunications Act 2001, suspension and cancellation of licences, investigation into violation of the ;

law and punishment to the offenders under the criminal laws and fines up to 20 lakhs.

The draft law provides for compulsory licencing, a system for scruinity of applications, issuance of first time licence for five years and renewal of licences. According ton the draft, the government will invite applications from people interested in  up radio and TV channels and a six member committee headded by a Chairman nominated by the government will issue the liccence. bangladesh Betrar and bangladesh Television will nominate one each membeer and the government will nominate two under technically skilled person category.

The committee will consider the financial and technical capability of the applicants. location of the stations and skill of the manpower. It will lso examine whether the applicants have anti-state or anti-people role or attitudes. Foreign nationals, firms not registered under the Companies Act, registered companies with less than Tk. 1 crore paid up capital and people or companies defaulting on loans from government or private financial institutions will not be eligible to apply for the licence.

Each offence after the first  one will carry a fine of Tk 20 lakh and six months imprisonment. In default, failures to pay the outstanding amount for licence, transfer of more than 50% shares without permission and violation of any term will result in cancellation and suspension of licence, says a draft.

The Organisations so faar applied for permission to run prvate satellite channels include Media One, Liberty Television, Dhaka Telefilm, Telebangla, Bishal Multimedia, Bishal Music, Bijoy Broafcasting Univision, Daffodil Multimedia and Movie Tone Media Communication. The entrepenours are from various profession. They include industrialists, former Vice Chancellor, newspaper editor and expatriates. Many of them do not have strong economic background. “ To establish a television channel it needs abot TK. 60 crore,” said marketing manager of an existing satellite television channel.

There is an allegation that some are lobbying with the ministers and influencing persons in the government to get permission on priority basis. But the existing entrepreneurs think more channels may distort alreaady crunched market unless the market itself gets bigger. media experts are, however, optimistic to see more channels taht would create more job opportunituies, more competition , more exposure and expand market as well.

Autonomy of Public broadcasting; Bangladesh Betar and Bangladesh Television:

The Cabinet okayed on 7^th may, 2001 two draft laws seeking to grant autonomy to Bangladesh betar and bangladesh television. It was one of AL’s electoral pledges in 1996 to give autonomy to the electronic media.

Politics of autonomy: Saga of Public Broadcasting:

The government exerts a great deal of control over public broadcasters, using them as a mouthpeace for government rather than as an independent source of information for the public. The governments of illiberal democracies attempt to devise mechanism to retain control over the electronic media directly or indirectly. Bangladsh is not an exception. Since the independence of BD, the electronic media had always been a propaganda machiene.[5]

Until 1991, the issue of ‘autonomy radi-TV’ didnot come to the forefront of thesocietal discourse.

In November, 1990 major political alliances, popularly known as the 5,7and 8 party alliances announced ‘Joint Declaration’ to consolidate the movement against autocracy.

With the restoration of parliamentary democracy in 1991, on the basis of consensus among major political parties, the issue of ‘ public broadcasting autonomy’ gained momentum. The expectation was high in the public regarding the granting of autonomy of electronic media in line with the Joint Declaration. Regrettably the BNP Government didnot uphold its commitment to grant autonomy to electronic media.

Such absolutely unprecedented argument in favor of a ‘ loyal electronic media’ from an elected government put an abrupt end to the hope for an autonomous public broadcasting service. However, the BNP government control over the electronic media.

Afterwards the government maintained absolute secrecy on the content of the report. It didnot even spell out its plan of action to follow up the Commissions costly execise. There had been a little progress in implementation of the report recently when Prime Minister Sheikh Hasina said that her government would deregulate the electronic media before it completes its term.

The Report:

The Commission finalised its report on 30^th June, 1997. The NBC would administer both Bangladesh Betar and Bangladeh Television. NBC would approve the budgets for both of them, which would function and operate from  there own income. In the area of news coverage, protocol value would replace news value.

 The Petition anf the rule nisi:

Odhikar, a leading Bangladeshi Human Rights NGO, filed a writ petition( Writ Petition no. Understandably no one from the relevant government ministry or authority bothered to reply the notice. Against the backdrop, a Division Bench of the High Court Division of bangladesh Supreme Court comprising  Justice K.Munwaruddin and Justice M.M. Hussain issued a rule nisi on 19^th November 2000.

 Proposed Bill:

He, however, said the concept of autonomy did not suit in the era of free flow of information. He hoped that the laws would become to effect before the end of the Awami League’s Government term. Defending governments authority to appoint chairman and members of the bopdies to administer the two media, Prof.

Constitution of NHRC: The President in consultation with Committee consisting of the-A) Prime Minister, B) Speaker of the parliament, C) Leader of the Opposition in the Parliament shall constitute the NHRC. The Commission shall consist of a chairman and four members. At least one member should be a woman.[6]