Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds-illustrate and explain
According to Wikipedia, Freedom of speech is the liberty to chat freely without restriction. Freedom of expression is bit broad which consists of any act of seeking, receiving and imparting information or ideas, regardless of the medium used.
The right to freedom of expression is guaranteed by Article 19 of the Universal Declaration on Human Rights (UDHR), and Article 19(2) of International Covenant on Civil and Political Rights (ICCPR), a binding legal agreement approved by 165 states. The latter states:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice.
It is universally acknowledged that the right to freedom of expression and speech is a foundational human right of the greatest importance. It is a central cohesive source of democracy, Key to the protection of all human rights and fundamental to human dignity of one’s own right. At the same time, it is also universally recognized that it is not an absolute right, there are no society free from restriction of freedom of speech and even every democracy has developed some system of limitation on freedom of expression and speech. Article 19(3) of the ICCPR provides:
The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order, or of public health or morals.
This means only restrictions which meet a strict three-part test are considered to be legitimate
International Guarantees of the right to freedom of expression have a number of key features. First, Opinions are absolutely protected by Article 19(1) of the ICCPR. This means it is okay to think the evil thoughts but giving expression to them may legitimately warrant a sanction.
Second, the right applies to ‘everyone”. It must be protected “without distinction of any kind, such as color, sex, race, religion, language, political or other opinion, property, birth or other status.” social or national origin,
It is not possible for freedom of speech or expression to be completely unregulated. It should be restricted when it causes harm. Holmes decreed “the only limits to freedom of speech were words that activate immediate danger.” To see what extent it can remain unregulated it is important to know what sort of damage it can cost. The scope of what constitutes an interference with freedom of expression is very wide. Usually where a public actor is involved that the question of an interference with freedom of expression is raised. A private store owner, for example, has every right to prohibit individuals from campaigning in her store, whereas prohibiting the same activity in a public place must be justified. States may be under a positive obligation to prevent private action that interferes with freedom of expression, but that is different.
The first part of the three?part test to restrict freedom of expression is it has to be provided for by law. This is fulfilled only where the law is accessible. The aims of such laws are to make sure individuals don not harm by statement. European Court of Human Rights has said: “the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case”.
Common law legal norms developed through the case laws which met the requisite standard. This is probably problematic, in such cases; there is no separation between makings and applying the rules, potentially a breach of right to an effective remedy is assured via Article 2(3) of ICCPR.
Now days there are various channels for communication which are great vendors of news and views and can make considerable impact on the minds of its readers. The right to freedom of speech and expression contains distribution and broadcast of one’s idea. Every citizen has right to state what he thinks but it must not trench others right
Freedom of expression by law in two ways: (1) the laws of obscenity, and (2) the laws of defamation
Restriction Bangladesh Perspective:
Bangladesh’s Constitution ensured freedom of speech and expression. the article 39 (1, 2) is about this and stated the followings:
39 (1) Freedom of thought and conscience is guaranteed. Freedom of thought and conscience, and of speech
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 offense –
a) the right of every citizen of freedom of speech and expression; (b) freedom of the press, are guaranteed.
Freedom of expression has limits. Every argument of freedom of expression clutches some restrictions. Clause (2) of Article 39 holds the grounds for which restrictions are imposed. Six cases have been mentioned there:-
Security of State: Restriction on freedom of speech and expression is imposed for the security of the state under article 39(2). “Security of State” here refers to severe and provoked public order. Examples are war against the state, rebellion, revolution and not ordinary violation of public order or safety, example riot, unlawful assembly. Hence speeches or expression of individual that encourage such violent crimes undermine the security of state.
Friendly relations with foreign states: This provision is to stop uninhibited malevolent activity against a friendly foreign country. This can endanger good relationship between Bangladesh and the foreign state. The Foreign Relations act (NO. XII OF 1932) is against the publication of any kind of statement that can harm friendly relationship between the Bangladesh government and governments of the other foreign countries. However; this does not state inhibition of fair criticisms of foreign Government policy.
Public Order: 'Public order' signifies the state of tranquility which exists among the members of political society because of inner regulations enforced by the Government that they established. It is the act to abolish the common law offences of riot, rout, unlawful assembly and affray and certain statutory offences relating to public order.
Public order is more than usual protection of law and order. It also implies in public safety, peace, and tranquility. Whatever upsets public tranquility or peace agitates public order. So any sort of strikes or disturbances which is promoted to create unrest amongst workmen is offences against public order. Hence Public order implies violence free and orderly states of affairs so citizens can peacefully follow their normal avocation of life. Public order includes public safety too. So rebellion and internal disorder will affect public order. But just criticism of government does not disrupt public order. In external aspect meaning of public safety is protection from foreign attacks. Words that intended or leads to disorder are subject to this law. Hence statements that are made to hurt religious feelings can be punished by the law. These kinds of utterances can create conflicts among different groups and religion.
Decency or morality: Any speech or expression that is offensive to moral principles in public places is prohibited. There is no fix standard for this. This standard changes from time to time and place to place.
Contempt of Court: The contempt of courts act (act no. XII of 1926) Constrains freedom of speech and expression if it exceeds the reasonable limit to contempt of court. Corresponding the Section 2 'Contempt of court' can be the 'civil contempt' or the 'criminal contempt.'
Defamation: A statement, that hurts a persons’ reputation, called defamation. It is consisting of exposing a man to hate, mockery or contempt. The civil law of Bangladesh that relates to deflation is still unmodified. In the penal code (1860) noted that
Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or published any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation or such person, is said, except in the cases hereinafter excepted, to defame that person.
To take action against defamation the claimant has to prove the speech was defamatory; the defendant can defend by proving it was not defamatory or by proving certain defenses, such as fair comment, justification and privilege.
Incitement to an offence: freedom of speech and expression does not give the right to provoke people to commit offence. Here the word 'offence' means any act or omission that is punishable by the law.
Article 39(2)1 of constitution assured the freedom of speech and expression. Even though freedom of press has been mentioned separately. Every Bangladeshi can exercise their freedom of speech and freedom of expression by being within the stated horizon of constitution. Any violation is subject to sanction of law.
Freedom of expression is universally acknowledged without it democracy cannot work properly. Citizens will not be able to take part in public decision making. But it cannot stay fully unregulated. To protect and ensure the safety and wellbeing of a country and person some elements must be protected. It must have realistic and right nexus or relationship among the restriction and achievement of public order. So law must exist. The biggest criticism of this law is not of its application but rather its existence. There should be a limit to which extent freedom of speech and expression can be unregulated. However, since this is no absolute. This law should be carefully applied. The government has to be very careful changing any fundamentals
· Review the legal provisions and compare with international standards to bring them at the same level.
· Ensuring criminal charges are not brought for expressing legitimate views and opinions for criticizing against the government
Freedom of expression is universally acknowledged without it democracy cannot work properly. Every person wishes to have freedom of thought, conscience and speech. Without it citizens a countries decision making process will not be democratic. But it cannot stay fully unregulated. To protect and ensure the safety and wellbeing of a country and person some elements must be protected. The correctness of freedom speech and expression can be established by how efficaciously it can control the actions of different sectors of society. Law often has to be in a middle course to keep balance as there is a chance to collide between different rights, usually are not at the cost of justice. Most constitution ensures the rights of freedom of thought, speech conscience and expression; but limits it by the states law for the welfare of society and rights of others. It has to be ensured by the judiciary, civil society and other government and legislative bodies that none are harassed by manipulating state apparatus to keep the citizens’ rights protected.
1. Wikipedia. (n.d.). Retrieved from http://en.wikipedia.org/wiki/Freedom_of_speech
2. United Nations General Assembly Resolution 217A (III), 10 December 1948.
3. UN General Assembly Resolution 2200 A (XXI), 16 December 1966, entered into force 23 March 1976.
4. UN General Assembly resolution, March 2010.
5. The Independent, 21 Feburary 2006, Verkaik R, Why freedom of speech has never been an absolute right, http://www.independent.co.uk/news/world/europe/irving-gets-three-years-jail-in-austria-for-holocaust-denial-467280.html, accessed 09 May 2011
6. See, Mukong v. Cameroon, 21 july 1994, Communication No. 458/1991, para. 9.7 (UN Human Rights Committee).
7. Article 2(1) of the ICCPR
8. The Independent, 11 April 2011, Alibhai-Brown Y,Yasmin Alibhai-Brown: No democracy should declare free speech an absolute right, http://www.independent.co.uk/opinion/commentators/yasmin-alibhai-brown/yasmin-alibhaibrown-no-democracy-should-declare-free-speech-an-absolute-right-2266091.html, accessed 09 May 2011
9. The Sunday Times v. United Kingdom, 26th April 1979, Application No. 6538/74, Para 49.
10. The Sunday Times note 28, Para. 47 and Observer and Guardian v. United Kingdom, 26 November 1991, Application No. 13585/88, Para. 50-53
11. State v. Mamabolo, 2001(3) SA 409.
12. The foreign relations act, 1932. Retrieved from http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=158
13. Public Order Act, 1986. (n.d.). 1986 chapter 64, http://www.legislation.gov.uk/ukpga/1986/64
14. The contempt of courts act, 1926, Retrieved from http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=140
15. The penal code, 1860, (act no. XLV of 1860). Retrieved from http://bdlaws.minlaw.gov.bd/sections_detail.php?id=11§ions_id=3540&vol=1&search=Defamatiom