To what extent the right to freedom of expression and speech can be restricted?

Introduction:

Freedom of speech is the liberty to converse freely without any control or restrictions. The word freedom of expression is also used time to time equally with the word freedom of speech, but takes in any act of seeking, receiving and communicating information or thought.[1] Without freedom of expression, other fundamental rights like the right to vote, would wither and die.  Freedom of expression is a foundation of democratic rights and freedom. In its very first assembly in 1946, before any human rights announcement had been adopted resolution 59(I) affirm “Freedom of information is a fundamental human right and… the standard of all the freedom to which the United Nations is consecrated.”[2]

Freedom of expression is necessary in allowing democracy to work and open involvement in decision making. If people has no right free access to information and are not capable to express their views freely then they can’t exercise their right to vote effectively or cannot take part in public decision making. Freedom of expression is not only significant for individual dignity but also to contribution, accountability and democracy.

How the right to freedom of expression and speech can be restricted:

The right to freedom of expression and speech can be restricted in different ways. Here I am describing some of them.

• Limitations on Individual Reporters: The liberty to convey information can come under bother in a verity of ways and particularly impose on the freedom of the press. Pressure on journalists creates a very momentous threat.[3]

Informal censorship refers to a verity of activities by public officials- ranging from telephone calls and threats to physical attack- designed to prevent or punish the publication of critical material. The right of journalists to protect their sources is also important in ensuring the free flow of information on matter of public interest. International and regional human rights mechanisms have asserted that journalists should never be required to reveal their sources except under certain conditions.

Privacy laws can obstruct investigative reporting aimed at exposing corrupt and illegal practice. Privacy laws, while significant in protecting the confidential affairs of individuals, should not be misused to refute discussion of matters of public concern.[4]

 The media should be free to report on conflicts and public inspection in such situations is essential to control humanitarian and human right abuses. Keeping out of the media is a very severe restriction on freedom of expression and information in this regard and restrictions should only be placed where there are clear safety concerns.  Elections are other times when the freedom of the press to provide balance and impartial information becomes critical and more vulnerable to repression by political actors.

• Structural Boundaries on the Press: These call into inquiry whether the media are liberated from political control at an institutional level. Restriction can take the form of press laws which allow for government interference in the media, or which impose unwarranted restrictions on published content. All bodies with regulatory authority over the media print or broadcast should be fully independent of government. Processing of license applications should be open and transparent, with decisions about competing application being made on the basis of pre- established criteria in the interest of the public’s right to know.

Media monopolies are an additional way in which the right to collect information from verity of sources is restricted. State broadcasting monopolies do not serve the public interest but then in some smaller markets, a monopoly newspaper may be the only way to provide access to local news.[5]

Another instance of “structural censorship” is use of economic events by governments to control information, comprise special portion of government advertising, government direct over printing, distribution networks, or newsprint and the discriminatory use of taxes.

• Access to new technologies:  Internet, and satellite and digital broadcasting, present extraordinary opportunities to uphold freedom of expression and information. Action by the authorities to limit the spread of harmful or illegal content through the use of these technologies should be carefully designed to ensure that any measures taken do not inhibit the enormous positive potential of these technologies. The application of rules designed for other media, such as the print or broadcast sectors, may not be appropriate for the internet. Evidently, limitations on such technologies will be a fine balancing act between defending the freedom of expression and information and ensuring protection from abuses e.g. spread of child pornography.[6]

• Access to information held by communal authorities:  This is another aspect of the freedom of information debate. Global or local human rights mechanisms have asserted the public’s right to know and urged governments’ to adopt legislation along the following lines: the legislation should be guided by the principle of maximum disclosure; public bodies should be under an obligation to publish key information; public bodies should actively promote open government; exceptions should be clearly and narrowly drawn and subject to strict ‘harm’ and ‘public interest’ tests; individuals should have the right to appeal against a refusal to disclose information to an independent administrative body, which operates in a fair, timely and low-cost manner; the legislation should provide protection for ‘whistleblowers’ who release information on wrong doing.[7]

 With respect to governmental information, any government may distinguish which materials are public or protected from disclosure to the public based on classification of information as sensitive, classified or secret and being otherwise protected from disclosure due to relevance of the information to protecting the national interest. Many governments are also subject to sunshine laws or freedom of information legislation that are used to define the ambit of national interest.

The right to freedom of expression and speech entailed in the constitution:

The right to freedom of expression and speech are fundamental right of the citizens of Bangladesh. Constitution of the People’s Republic of Bangladesh made certain the freedom of speech and expression. In the article 39 (1, 2) of chapter-3 of this constitution these have been affirmed: [8]

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.

Article 39 evidently states that freedom of thought and conscience is boundless, but other freedoms such as speech and expression and freedom of the press are not without boundaries. The boundaries referred to in Article 39 assume action only by law. Without legislative authority, the executive cannot place any restriction or limitations on these freedoms. To impose a restriction, the legislature must make a law only for that purpose. While a citizen may exercise such rights in normal situations, extenuating circumstances may create compelling reasons to depart from the normal functions of the state.

  While Article 39 addresses freedom of the press, Article 43 provides protection of privacy to the citizens.[9]

Every citizen shall have the right, subject to any reasonable restrictions imposed by law in the interests of the security of the State, public order, public morality or public health-

(a) to be secured in his home against entry, search and seizure; and

(b) to the privacy of his correspondence and other means of communication.

As interpreted, this provision limits the right of the press to invade private homes to obtain confidential information, interfere in a citizen’s secrets, or record private political discussions.

Part IXA of the Constitution deals with unusual or crisis situations. If the President believes that a grave situation threatens the security or economic life of the country, be it war, external aggression or internal disturbances, he may proclaim an emergency. When an emergency is issued, the rights granted in constitution are suspended so that the State has no restrictions on its ability to make any new laws or take any executive actions. Constitution also stated that speaks of issuance, period and revocation of the emergency; and as well discusses the suspension of fundamental rights and there has also the deals with the suspension of enforcement of fundamental rights during emergency. During crisis, the executives become all powerful. They can take any executive action regardless of fundamental rights since the operation of fundamental rights remain suspended during an emergency.

Besides the announcement of emergency, other restrictions relating to the security of the state can be found at constitution. It states the right of every citizen to freedom of speech and expression and freedom of the press, but renders such freedoms subject to the security of the state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation or incitement to an offence. The Penal Code, Special Powers Act and the Contempt of Courts Act prescribe the punishment for violations that offend these press limits.

Reference should also be drawn to Article 33, which authorizes the Government to detain anyone, including journalists, in prison, without trial for six months initially. This Article provides immunity to the Government against illegal confinement of a citizen. Under the Special Powers Act of 1974, the Government may detain any journalist for six months without trial in prison.

Constitution also deserves reference because it describes the rights and immunities of parliament and its members.[10] For example, members of the press may enter parliament, but only with permission. The Speaker alone has the power to authorize the publication of papers, documents and reports placed or submitted in Parliament. No member of the press has a right to take any document out of Parliament without the authorization of the Speaker. Contempt of Parliament is a punishable offence. In fact, members of the press are not allowed to be present at any parliamentary committee meetings.

A number of logical limitations found in these articles are as follows- [11]

(a) Against the interest of security of the State
(b) Against the friendly relation with foreign state
(c) Violation of public order
(d) Violation of decency or morality
(e) Anything related to contempt of court
(f) Defamation or incitement to any offense

 Conclusion:

A common justification for the restrictions upon the liberty of individuals is the supposedly overriding interests of efficient government and the public benefit. It is conveniently overlooked that what constitutes “efficient government” and “public benefit” are subjective concepts, the interpretation of which will be in the hands of legislators, bureaucrats and judges with human failings and feelings, lack of vision, imperfect knowledge and understanding, subjective views and personal prejudices. However, while public benefit is an important factor, the test for allowing further restrictions upon free speech should strive to be somewhat more stringent. Legal restraints upon individual freedom of speech should only be tolerated where they are absolutely necessary to prevent infliction of actual harm or to secure the liberties of others. A more or less remote possibility that someone will be harmed or unbiased claims that the stability of society will be undermined is not sufficient justification for legal prohibition.

A balance must be struck between the ability of individuals to be unrestricted in the free expression of thoughts and ideas, and the need to ensure that governments are able to efficiently carry out their function of administration, law and order, and preserving the rights of individuals.

 References:

1. Freedom of speech, Retrieved from: http://en.wikipedia.org/wiki/Freedom_of_speech (10-10-2011)
2. UN general assembly, 1^st session, resolution 59(I)
3. Restriction on individual journalists, Retrieved from: http://www.hrea.org/index.php?doc_id=408(12-10-2011)
4. Privacy law, Retrieved from: http://www.hrea.org/index.php?doc_id=408(12-10-2011)
5. Restriction on press, , Retrieved from: http://www.hrea.org/index.php?doc_id=408(12-10-2011)
6. Restriction on electronic media, , Retrieved from: http://www.hrea.org/index.php?doc_id=408(12-10-2011)
7. Access to information held by public authority, , Retrieved from: http://www.hrea.org/index.php?doc_id=408(12-10-2011)
8. Part III of the constitution of Bangladesh, Fundamental Rights, Freedom of speech and expression, Article 39
9. The rights and immunities of parliament, constitution of Bangladesh, Article 78
10. Limitation founds in the article, Retrieved from: http://www.banglarights.net/constitutional_hr_1.php, (13-10-2011)