Navigating the complex interplay between defamation and freedom of expression in Bangladesh

Illustration: TBS.

In Bangladesh, a country deeply committed to democratic principles and individual liberties, the intricate balance between defamation laws and freedom of expression holds significant importance. 

Defamation and freedom of expression are fundamental concepts frequently engaged in complex and contentious interactions within legal contexts. 

While freedom of expression holds a revered status as a pillar of democracy and individual liberty, defamation laws serve to safeguard the integrity and honour of individuals and organisations. Therefore, in Bangladesh, the relationship between these two principles carries notable importance, prompting essential inquiries into their appropriate boundaries.

At its core, defamation involves transmitting untrue information that harms the standing of a person or entity. This concept is rooted in common law practices and has undergone evolutionary changes. In Bangladesh, the principal legal structure addressing defamation is the Defamation Ordinance of 1986, which incorporates aspects of both civil and criminal law.

According to the Defamation Ordinance, defamation can take the form of either libel (written or printed) or slander (spoken). To substantiate a defamation claim, several essential criteria must be met. 

Firstly, the defamatory statement must be communicated to a third party and not restricted to private exchanges between individuals. 

Secondly, the statement in question must be untrue, and truth serves as a defence against defamation accusations, underscoring the significance of factual accuracy in communication. 

Additionally, the statement must cause harm to the reputation of the individual or entity it targets, as the core of defamation lies in the damage inflicted upon reputation. Lastly, the statement should not enjoy any legal privilege or defence, with privileges encompassing statements made in legal proceedings or those protected by qualified or absolute privilege.

As outlined in Section 499 of the Penal Code 1860, individuals making imputations against others with the intention to harm or with knowledge of potential harm to reputation can be charged with defamation. This offence carries penalties of up to two years in prison, a fine, or both. 

Furthermore, apart from the provisions within the Penal Code, defamation is further addressed as a criminal offence under the Information and Communication Technology (ICT) Act of 2006. 

Section 57 of this act specifically prohibits the dissemination of any information deemed defamatory, false, misleading, or deceptive in nature, with violations resulting in penalties including imprisonment for a maximum of seven years, a fine of up to one crore taka, or both.

The Constitution of Bangladesh upholds freedom of expression as a fundamental principle. Article 39 guarantees every citizen the right to freedom of speech and expression, with provisions for reasonable legal restrictions encompassing the freedom to express opinions, share ideas, and distribute information. 

The judiciary in Bangladesh has continuously recognised the critical role that freedom of expression plays in a democratic society. It is the bedrock of free speech, accountability, and the free exchange of ideas, especially among people in positions of authority. However, this cherished freedom is not unrestricted and can be curtailed by certain limitations, such as those imposed by defamation laws.

In Bangladesh, as in numerous democratic societies, the challenge lies in achieving a delicate equilibrium between the preservation of freedom of expression and the safeguarding of individual reputation. On the one hand, excessively stringent defamation laws have the potential to suppress valid critique, investigative journalism, and the vibrant exchange of ideas. Such measures could ultimately erode democratic principles, accountability, and transparency. 

Notably, defamation is treated as a criminal offence in Bangladesh, and the enactment of the Digital Security Act (DSA) in 2018 has introduced ambiguous provisions that criminalise some forms of expression. Since its implementation, over 1,000 individuals have been apprehended under the DSA, with at least 39 journalists arrested between January 2019 and May 2021. 

Law enforcement agencies have utilised the DSA to penalise individuals for social media content critical of the government or public officials, instigating a chilling effect on those rightfully exercising their freedom of expression.

For instance, in 2018, journalist Shafiqul Islam Kajol faced arrest and defamation charges following the publication of a report accusing a government minister of corruption. Although Kajol was later acquitted, he endured several months of imprisonment before his trial. 

Another case involves blogger Asif Mohiuddin, who, in 2013, was arrested and charged with defamation for criticising the Prophet Muhammad (PBUH) on Facebook. Mohiuddin initially received a death sentence from a lower court, but his conviction was overturned by the Supreme Court in 2016.

The introduction of the Cyber Security Act in 2023 further complicates this delicate balance. While the act aims to protect digital infrastructure and combat cyber threats, its broad provisions have raised concerns regarding potential misuse to stifle dissent and limit online freedom of expression. 

Under the Cyber Security Act, authorities possess enhanced surveillance powers, including the ability to monitor online communications and prosecute individuals for digital activities deemed detrimental to national security or public order. This expansion of state authority in the digital realm raises significant questions about privacy rights and the potential for abuse of power.

On the flip side, the absence of robust defamation laws could pave the way for unfettered character assassination, the proliferation of false information, and harm to innocent individuals or entities. Achieving this delicate balance necessitates careful consideration of several aspects. 

Regarding public interest, courts frequently weigh the societal benefit of receiving information against the potential damage to an individual's reputation. If a statement serves a genuine public interest, it may receive protection, even if it is defamatory. Truth serves as a primary defence against defamation claims, and a statement that is proven to be true generally cannot be deemed defamatory, emphasising the importance of accuracy in reporting.

Furthermore, responsible journalism entails adherence to ethical standards and conscientious reporting practices. This includes thorough fact-checking, providing impartial coverage, and allowing the right to reply. When awarding damages in defamation cases, courts may take into account the extent of harm caused by defamatory statements, as excessive damages have the potential to deter freedom of expression. 

Public figures and officials may face a higher threshold for proving defamation due to the inherent scrutiny associated with their positions and the public's right to criticise their actions. Encouraging alternative dispute resolution mechanisms, such as mediation, can offer a means to resolve defamation disputes outside of the courtroom.

In recent years, Bangladesh has experienced a surge in defamation cases, often involving political figures, journalists, and activists. While some argue that defamation laws have been wielded as tools to suppress dissent and limit freedom of expression, others assert that such laws are essential for shielding individuals from unfounded attacks on their reputations. 

The ongoing endeavour to achieve a balanced relationship between defamation and freedom of expression is met with several hurdles, including legal revision, challenges of the digital era, reevaluation of defamation as a criminal act, advocating for self-regulation, and finding equilibrium between privacy and free speech.

In conclusion, it is crucial to address the challenges of balancing defamation laws and freedom of expression to establish a fair legal framework. This balancing act is a complex challenge faced by legal systems globally, including in Bangladesh. The goal is not to stifle valid criticism or investigative journalism but to protect individuals and organisations from false and harmful statements. 

As Bangladesh adapts to the digital age, its legal system must evolve to address new challenges. Recognising that both defamation laws and freedom of expression are vital for democracy, continuous evaluation and adjustment are necessary to ensure justice and uphold democratic principles.

Sketch: Mst Farhana Jannat

Mst Farhana Jannat is a student at the Department of Law and Human Rights of the University of Asia Pacific.

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.