“Discuss the Legal framework of free press”
1. Introduction:
In Bangladesh, we live in a democratic society. According to the very concept of democracy[1], people of Bangladesh have the freedom to express their opinions, share thoughts and convey messages without any fear. Such structure of the society allows its inhabitants to have the Freedom of Press
Freedom of Press is one of the fundamental rights to maintain the sovereignty of Bangladesh. Press expresses opinions, thoughts, and conditions of the people as well as the government. It works like a middleman between the government and the public which keeps the level of information between the two parties balanced.
According to Noah Webster, PRESS is-
“A gathering or publishing or broadcasting of news which is primarily done by the news reporters, publishers and broadcasters in newspapers and periodicals or any other printed form.”
Therefore, the Press can be defined as the collective view of journalists and reporters that is expressed in a printed form. Whenever a material and significant event takes place, the journalists’ report on it and the public avails a Press’s Coverage on daily arising issues.
According to the United Nations Universal Declaration of Human Rights, 1948- “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference, and impart information and ideas through any media regardless of frontier.
According to the law,
The definition of Freedom of Press is implied in both of the constitutions of Bangladesh and India. Neither of them contains a precise definition. However, if we refer to Clause 19 of the Constitution of India” Freedom of the Press/Free Press refers to communication and expression of opinion through various types of media, be it a published medium such as news paper or electronic medium such as television, internet etc. Such freedom implicitly means that the press it free from interference from the government. Constitutional and other legal protections can be availed to ensure the freedom of press
In the Constitution of Bangladesh, a synonymous word-NEWS PRESS has been used to mean the PRESS. Everyone from a journalist, a newspaper, a printing press and their overall relationship is referred by the term NEWS PRESS.
So basically it means-trying to gather news from our surroundings and delivering them to the general public in order to create awareness or just to inform others what is happening around them, is the collective act of press.
2. Explanation and Illustration:
a.” Freedom of press” according to the constitution of Bangladesh:
According to the UNESCO, freedom of press and freedom of speech are counted as a basic human right and that defines the independence of the media itself. In the constitution of Bangladesh, act 39 defines the freedom related to speech and press. The phrase of 39(1) clearly states that our constitution clearly guarantees the freedom of one’s conscious and thought process. But according to act 39(2) many restrictions can be imposed if the state thinks that the sovereignty of the state is in danger. It is clearly mentioned in act 39(2) that-
“39(2) Subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence-
(a) the right of every citizen of freedom of speech and expression; and freedom of the press, are guaranteed.”
B.”Freedom of the press” according to the Indian constitution:
The laws of Bangladesh have a deep root in the Indian laws. The constitution of India does not specifically mention the freedom of press. Freedom of press is implied from the Article 19(1) (a) of the constitution. Thus the press is subject to the restrictions that are provided under the Article 19(2) of the Constitution. Before Independence, there was no constitutional or statutory provision to protect the freedom of press. As observed by the Privy Council in Channing Arnold v. King Emperor , “The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length, the subject may go, so also may the journalist, but apart from statute law his privilege is no other and no higher. ” the constitution ensures to all its citizens the liberty of expression.
c. Why is Freedom of press important:
For any sovereign country-Freedom of the Press is very important for various reasons. Some of them are-
· Ensures the democracy in the society<href=”#_ftn14″ name=”_ftnref14″ title=””>[14]
· Ensures information equilibrium in the country
· Makes people aware of their rights
· Makes people more ethical as no one wants to be convicted and punished<href=”#_ftn15″ name=”_ftnref15″ title=””>[15]
· Makes the authorizes more accountable for their deeds
· Works as a channel between the government and the public
· Spreads ideas
· Lets everyone what is happening around them
These are some of the reasons why it is important to ensure the freedom of press in any society. If they are not free from any influence of any sorts, they may have a huge impact on their objectivity towards disseminating fair information.
d. Areas of laws which are affected by the press itself:
It is said that-“A pen is mightier than the sword. It basically means sometimes, the written words have more impact than the act of violent deeds itself. In this sense the press holds a mighty power as their words can defile any sorts of act with sometimes only the hint of suspicion. So, it’s very important to maintain a well balance between what is actually happening around us and how much we should actually know.
During the period of governor general Lord Wellesley in 1799, press laws were established for the first time in this subcontinent. It made sure that all newspaper must contain the name of the editor, publisher and owner of the printing press. Licensing for the newspapers was started by Governor General Adams according to the ordinance of 1823. This was made void in 1835. In 1857 this was reintroduced in. Then finally in 1860, the penal code was enacted which included areas like defamation and obscenity. Areas such as sedition and the act of creating inter-class enmity were introduced in this law in 1870 and 1898 respectively.
Many areas of laws are related to the press itself. Some of them are-
i. The Press and Registration of Books Act of 1867: convention of registration and preservation of all books and newspapers was introduced by this law.
ii. Vernacular Press Act of 1878: This act enabled the government to press charges against any seditious writing in any media. Newspaper activities were also included in a number of provisions in the code of criminal procedure of 1898.
iii. The Newspapers Incitement to Offences Act of 1908: If a newspaper publishes anything malicious, the magistrate could seize it under this law.
iv. The Press Act of 1910: If a newspaper published material instigated crimes such as sedition and murder or homicide, it could be penalized by the government under this law.
v. The Press and Registration of Books Act, Customs Act and Post Office Act: were amended in 1922 and at the same time the Acts of 1908 and 1910 were annulled.
vi. The Newspaper Employees (Condition of Service) Act of 1974: This rule established the basic groundwork of the rights and privileges of the journalists and newspaper employees. This rule resulted in the establishment of Bangladesh Press Council. The council has been working for the freedom of press and betterments of news quality since 1979.
vii. The Printing Presses And Publications (Declaration And Registration) Act, 1973 (Act No. Xxiii Of 1973): specifies the responsibilities of the newspapers. Clause 3 of this act lays down that the names and places of the presses and publishers should be printed clearly on all printed newspapers. Clause 4 lays down that the declaration of the press must be submitted to the magistrate. Clause 6 lays down that each copy of the newspaper must bear the name of the publisher. Clause 7 specifics that the printer and publisher of the newspaper must submit a declaration to the district magistrate and the newspaper must be published within three months of that declaration. A new declaration was required in case a daily newspaper has been banned for three months and other newspapers for six months. Clause 10 stipulates that the declaration specifying the place, duration and language of the newspaper will be cancelled if the newspaper is published from a different place, for a different duration and in a different language.
This section, however, will not apply if the changes are made on temporary basis for a period not exceeding 30 days and are communicated to the district magistrate within 72 hours. Clause 11 lays down that if the printer or the publisher of the newspaper lives outside Bangladesh for a period exceeding six months, the name and consent of the person who would perform the responsibility in their absence should be submitted in writing to the district magistrate before he leaves the country. Otherwise the declaration for the newspaper will be cancelled. Clause 12 gives the magistrate the power to refuse certification.
In order to certify the declaration, the magistrate will have to be satisfied to the effect that:
• The owner of the printing press and the publisher of the newspaper are citizens of Bangladesh
• No other newspaper bears the proposed name
• Neither the owner of the press nor the publisher of the newspaper has been convicted on the ground of moral turpitude within last five years
• They are not insane
• They have the required financial solvency
• The editor has the requisite qualification as well.
Clause 20 provides the magistrate with the power to cancel the certificate. Clause 20(a) states that the government can ban a newspaper if anything morally unacceptable is published in it. This also empowers the government to seize any uncertified newspaper. According to clause 26, all newspapers must provide the government four complimentary copies of each.
· CHILDREN ACT 1974: anybody below 16 years is regarded as a ‘child’. This Act prohibits a newspaper from publishing name, address or school by which a child can be identified, without prior permission.
· The Official Secrets Act, 1923 : Under clause 3 of this act any person can be convicted of criminal offence if:
o That person goes to a restricted place or
o Proceeds toward that place and makes a map or sketch of that place or
o Collects confidential information about that place or
o Does all the above and publishes that information.
Under clause 4 collection of news or information in collaboration with any foreign agent is not permissible. Under clause 5, information collected secretly cannot be published. If a newspaper publishes secret news, the reporter, editor, printer and publisher will be guilty of committing an offence. Any connivance in this matter will be treated as a criminal offence. This law is no longer in action in Bangladesh. The Right to Information Act, 2009 is now prevailing in Bangladesh. Some of the other laws related to press are-
a) PRESS COUNCIL LAW 1874
b) BANGLADESH SHONGBAAD SHONGSHTHA ADDHADESH,1979
c) PENAL CODE
d) SPECIAL POWER ACT,1974
e) OFFICIAL SECRECY ACT, 1923
f) COPYRIGHT LAW,1962
g) FOREIGN RELATIONSHIP ACT, 1932. Etc.
The constitution of Bangladesh protects the fundamental rights of its people. The law acknowledges that the freedom of press is a type of basic right of the citizen and Constitution’s act 26 voids all acts that conflict with the fundamental or basic right of the citizens. To further protect peoples’ basic right, 102(1) act states that if anyone feels that an act is not applicable for any event, he/she can apply to the High Court for making amendments to the act.
e. restrictions: In article 39(2), some boundaries are implied such as-
i. Nothing can go against the interest of the state and its security: in any time, the press should not be responsible for anything which may be harmful for the state`s sovereignty or the security of the nation
ii. Nothing should have a direct impact regarding the friendly relationship with a foreign state: Any speech of any party can be under restriction if that speech is against the friendly foreign affiliation.
iii. Nothing violating the public order, morality or decency: the supreme authority can put a ban on certain content which may be a direct threat to the public order, morality or decency
iv. Anything related to the contempt of court: No party can make an offensive statement which is related to the contempt of court.
v. Any offensive defamation or incitement<href=”#_ftn24″ name=”_ftnref24″ title=””>[24]: abusing power to defame someone is strictly prohibited under the constitution.
f. Exempt of provisions: The constitution’s 141 (B) article talks about exempt for the freedom related provisions of some of the article when there is emergency situation going on in the country<href=”#_ftn25″ name=”_ftnref25″ title=””>[25]. For protecting the nation’s peace and securing it some rights can be stopped for a temporary period of time. The article basically says that,” While a Proclamation of Emergency is in operation, nothing in articles 36, 37, 38, 39, 40 and 42 shall restrict the power of the provisions contained in Part III of this Constitution, be competent to make or to take, but any law so made shall, to the extent of the incompetence, cease to have effects as soon as the Proclamation ceases to have effect.”<href=”#_ftn26″ name=”_ftnref26″ title=””>[26]
So, we can understand that though in Bangladesh, Freedom of thought and conscience is unlimited, the freedom of press is not unlimited. The article 39 has limited what can be shared publicly and what can’t be shared but the same constitution has given rights to its citizens in article 43 to share anything they want privately.
g. Penalties regarding freedom of press: Constitution does not allow anyone to breach the laws to jeopardize national security or national peace. So, it restricts anyone from making any statement which may induce such disasters. The law has some severe penalties regarding breaches of the freedom of press agreements<href=”#_ftn28″ name=”_ftnref28″ title=””>[28].
Some act which may jeopardize the national security or peace is punishable by law by the penal code of 1860. According to the code`s 123 (1) and 124 (1) article, the misdeeds are punished by the special tribunal which was formed in 1974. These two articles are related to the breach of national security or peace.
Act 153 (1) and 154 (1) says that-creating chaos or writing something which may create chaos among the mass is punishable by the law.
Act 195 (1) says that-making any statement which defames any religion`s belief is a crime and thus severely punishable.
Any information regarding the election process is legally punishable by the Act 171(7)
According to the articles 292 and 292, anything vulgar or unethical will be punished by the supreme authority of the government.
Also, according to the acts 499, 501, and 502 defamation and libel is legally prohibited[29].
3. Conclusion:
Freedom is like a privilege. Not everyone has this privilege to speak up their minds. We are lucky to be in a sovereign land where our opinions are valued as importantly as our entities. It is one of our basic, fundamental rights. What we choose to do with our rights or what we may become, depends on us. Our constitution has given us the liberty to be anyone. But for the sake of the safeguard of the land and its masses, it’s the duty of the respective authorities to make sure everything is in order, as it should have been.
In our democratic country, we have the freedom to express ourselves, but these expressions should be carefully monitored to avoid any chaos in the society. The society will remain peaceful if the proper laws are just and equal for everyone to follow them.
1. Bangladesh er Gonomaddhom Ayin o Bidhimala [Book] / auth. Hoque Abu Nosor MD Gaziul. – Dhaka : University Press Limited, 1996.
2. Broadcast, Voice and Accountibility [Book] / auth. Buckley Steve [et al.]. – Washinton, DC : The World Bank Group, 2008.
3. Shongbaad Bishoyok Ayin [Book] / auth. Rahman Gazi Samsur. – Dhaka : Bangla Academy, 1984.
4.http:// www.ippf.org/en/Resources/Statements/The+Rights+to+Freedom+of+Thought.htm
5. http://www.parliament.gov.bd/Constitution_English/part3.htm
6. http://www.legalserviceindia.com/articles/rel_rel/htm
7. http://www.thedailystar.net/newDesign/news-details.php?nid=152087
8. Mirriam Webster Dictionary of Law, Freedom of Press,
http://dictionary.reference.com/browse/freedom+of+speech
9. http:// www.lawyersnjurists.com
10. www.wikipedia.com/Freedom+of+the+press
11. www.wikipedia.com/Freedom+of+the+speech
12. Bangladesh Constitution, available at www1.umn.edu/humanrts/research/Bangladesh-constitution.pdf
13. Indian Constitution, available at indiacode.nic.in/coiweb/coifiles/part.htm
14. Press Freedom at stake by Rifat Munim, Para 1,6,7,10, available at- http://thedailystar.net/magazine/2011/09/03/media.htm
15. Smith, David, 2006, “Timeline: a history of free speech”. The guardian, London, available at http://www.guardian .co.uk/media/2006/feb/05/news
16. Freedom of Expression, Para 2, Available at- http://issues.tigweb.org/expression?gclid=CJ6Zjfv456sCFYJO4QodN2xMJw
17. Freedom of Speech: Rights and Restrictions by Mohammad Gani, USA, August 17,2011, Para 3, available at http://www.weeklyblitz.net/1659/freedom-of-speech-rights-and-restrictions
18. Dworkin, R., 1977, Taking Rights Seriously. Cambridge: Harvard University Press.
19.Edwin Baker, C., 1989. Human Liberty and Freedom of Speech. Oxford: Oxford University Press.
20. Fiss, O.M. 1996. Liberalism Divided: Freedom of Speech and the Many Uses of State Power. Boulder: Westview Press.
21.Fish, S. 1994, There’s No Such Thing as Free Speech…and it’s a good thing too. New York: Oxford University Press.
22.Graber, M.A. 1992. Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism. Berkeley: University of California Press.
23. Hashim Kamali, Mohammad. 1997. Freedom of Expression in Islam. Islamic Texts Society.
24.Halim, M. A. Rule of Law. Constitution, Constitutional Law and Politics: Bangladesh Perspective, Khan, M. Yousuf Ali, Eds; Rico Printers: 9 Nilkhet, Babupara, Dhaka-1205, 1998; 345.
25. Kramer, M., 2002, “Why Freedoms Do Not Exist by Degrees,” in Political Studies, Vol 50.
26.Lyons, D., 1994, Rights, Welfare, and Mill’s Moral Theory. New York: Oxford University Press.
27. Magee, J. 2002. Freedom of Expression. Greenwood Press.
28.Mcleod, K. 2007. Freedom of Expression: Resistance and Repression in the Age of Intellectual Property.Minneapolis: University of Minnesota Press.
29.O’Rourke, K.C. 2001. John Stuart Mill and Freedom of Expression: The Genesis of a Theory. Routledge.
30. Rahman, Golam and Ahmed, Helal Uddin (2004). Banglapedia: National Encyclopedia of Bangladesh.
See www.duhaime.org/LegalDictionary/D/Democracy.aspx
Freedom of Speech, Para 1, available ar- http://en.wikipedia.org/wiki/Freedom_of_speech
www.constitutional-law.net/expression.html
Freedom of Speech, Para 2, available ar- http://en.wikipedia.org/wiki/Freedom_of_speech
Noah Webster was a strong advocate of the Constitutional Convention. He believed in the developing cultural independence of the United States
See http://www.scribd.com/lieuhon/d/34374908/22-ISSUE-DEFINITION-IN-PRESS-COVERAGE
See www.un.org/en/documents/udhr/
www1.umn.edu/humanrts/research/bangladesh-constitution.pdf
See lawmin.nic.in/coi/coiason29july08.pdf
Alexander, A. 2005 Is There a Right to Freedom of Expression?. Cambridge: Cambridge Studies in Philosophy and Law.
Justice Hossain Kemaluddin, freedom of speech under law in Bangladesh-law and practice, Dhaka, Anindya Computer, 1994
indiankanoon.org/doc/821763/ – India
Bosmajian, H. 1999. Freedom Not to Speak. New York: New York University Press.
Edwin Baker, C., 1989. Human Liberty and Freedom of Speech. Oxford: Oxford University Press.
Edwin Baker, C., 1989. Human Liberty and Freedom of Speech. Oxford: Oxford University Press.
BCDJC (Bangladesh Centre For Development, Journalism and Communication) (2003); Madhyam (Bangladesh Media Directory); BCDJC; Dhaka.
Cohen-Almagor, R. 2006. The Scope of Tolerance: Studies on the Cost of Free Expression and Freedom of the Press. Routledge.
Chowdhury, Afsan (2004). Media in Times of Crisis: National and International Issues. Shrabon. Dhaka.
See http://en.wikipedia.org/wiki/Press_Act
See www.archive.org/stream/…/pamphletsissuedb13greaiala_djvu.txt
See www.scribd.com/doc/7243223/Act-1974
bdlaws.minlaw.gov.bd/print_sections_all.php?id=437
www.legislation.vic.gov.au/domino/Web…/74-8602a022doc.doc
Compilation: Mir Masrur Zama and Riaz Uddin Khan Source: Mass-line Media centre (MMC); Para 4, available at http://www.banglarights.net/constitutional_hr_1.php
Freedom of Expressio, Para 2, Available at- http://issues.tigwe.org/expression?gclid=CJ6Zjfv456sCFYJO4QodN2xMjw
Bangladesh Constitution, article 141 (B); available at www1.umn.edu/humanrts/research/Bangladesh-constitution.pdf
O’Rourke, K.C. 2001. John Stuart Mill and Freedom of Expression: The Genesis of a Theory. Routledge.
Halim, M. A. Rule of Law. Constitution, Constitutional Law and Politics: Bangladesh Perspective, Khan, M. Yousuf Ali, Eds; Rico Printers: 9 Nilkhet, Babupara, Dhaka-1205, 1998; 345.
Kramer, M., 2002, “Why Freedoms Do Not Exist by Degrees,” in Political Studies, Vol 50.