From the cancellation of a much-anticipated million dollar deal of a company, due to malicious and falsified rumours that have been spread about its production, to the utter ruination of life of a simple middle-class service-holder, because his entire family has been branded as swindlers and adulterers by a rejected lover of his eldest daughter, these state of affairs are but common incidents that we see every day as the unforgiveable fatality of the so-called freedom of expression. Despite being regarded as the cornerstone of democracy, and having its importance well-documented since the very inception of United Nations and in various constitutional instruments around the world, freedom of expression is a concept that has been subject to restrictions and various qualifications.
To that end, the law of defamation is an exceedingly technical area of law that strives to arbitrate on the fine line between one's freedom of expression and the other's right to privacy and unimpaired custody of his reputation, its subsistence firmly moored on conservation of one's dignity, honour and integrity, and other intangible assets which personifies him and embodies his public stature.
In the words of Prof. Salmond, a renowned English jurist, "the wrong of defamation consists in the [representation] of a false and defamatory statement respecting another person without lawful justification or excuse." A defamatory statement is foredestined to denude one to hatred, contempt or ridicule, or to injure him in his trade, or to cause him to be shunned or avoided in the society by means of injurious or malicious falsehood.
The Constitution of People's Republic of Bangladesh, under Article 43, vows to safeguard the basic rights to privacy of every citizen. Article 39, more importantly, stolidly defends an individual's freedom of thought, conscience and expression to the extent that, inter alia, it does not tantamount to libel, slander, obscenity, sedition, hate speech, or disclosure of classified information, thereby violating a person's right to privacy and/or public security. The law of defamation, however, is predominantly enshrined in the Bangladesh Penal Code 1898.
Section 499 of the Penal Code makes it a criminal offence to defame a person, either by written or oral representation, with intent to wrongfully vilify the character and repute of that person. However, if the information represented is either wholly or substantially true and is for public benefit, expressed in good faith, untainted by malicious and potentially injurious falsehood, it may not attract censures of defamation.
In neighbouring India, with whom we have multiple shared legacies- including the Penal Code 1898- similar protection is afforded. However, the Indian jurisdiction, unlike its Bangladeshi counterpart, has mellowed with time and trial, attuning to the 21st century legal exigencies. Any form of character assassination via internet is severely punishable under Article 66A of Information Technology Act 2000. The law also has tortious aspect, as well as wealth of judicial rulings underpinning it, giving this sphere of law an avant-garde countenance in the Asian subcontinent.
The United Kingdom, in the past, has been celebrated as the "libel tourism" capitol of the world, inspiriting non-UK citizens and companies to capitalise the English courts for defamation cases because of the plaintiff-friendly nature of the laws. The Defamation Act 2013 however brought some noteworthy reforms, without substantially replacing the preexisting common laws. A wide range of new and simplified defenses, and especially section 9, dictates that a court has no jurisdiction to hear a defamation action unless the English jurisdiction is clearly the most appropriate avenue, indicating a gradual thrive to neutralise the status quo and striking the right balance between freedom of expression under Article 10 of European Convention on Human Rights (as incorporated through Human Rights Act 1998) and, under Article 8, the right of an individual not to have his reputation sullied, while its Bangladeshi counterpart sedately breathes the air of the nineteenth century outmoded paradigm.
After the English rescript, Scotland is on the queue for a radical reconditioning of its law to make it time-compatible and politically reflective while the Australian State government in Tasmania is unrelentingly formulating new "anti-free speech" legislation. On the flip side, the Canadian parallel is regarded as having the most plaintiff-friendly defamation laws in the "English-speaking world", with an exceedingly generic and uniform slander and libel legislations in application.
Another curious facet of the law has its pier in the law on blasphemy. On March 21, 2012, five Facebook pages and a website were shut down in Bangladesh shortly after a joint petition was filed in the Dhaka High Court alleging that the content contained "disparaging remarks and cartoons about the Prophet Muhammad, the Muslim holy book of Koran, Jesus, Lord Buddha, and Hindu Gods." Similar reinforcement gained momentum in Pakistan, Saudi Arabia and Egypt, amongst many other countries the same year.
(To be continued)
The writers are students of University of London International Programmes