‘I do not agree with a word you say, but I will defend to the death your right to say it.’ -Voltaire.
Silence is an ocean. Speech is a river. Silence is the language of God. People are sovereign in a democratic republican form of government. It looks as if self-evident that the electoral procedure can have meaning only if voters can engage in an open and vigorous dialogue about the merits of the candidates, including criticism of incumbent government officials. As we know neither the government nor the government officials are sovereign, people should criticize any act of those officials’ activities. The United States Constitution is what the courts hold in pronouncing judgment about presidents, congressmen, State officials, or bureaucrats; and all other Americans are obligated to act in accordance with court interpretations of the Federal and State Constitutions. However, in Nebraska Press Association v. Stuart (1976) the United States Supreme Court held that State courts were bound by the Supreme Court decisions on judicial matters. If the courts interpret the Constitution to say that judges may not exclude the press from open hearings, no judge may do so.
You can also read: Journalists Exempted from Jail in Defamation Cases Under New Cyber Security Act 2023
Since Marbury v. Madison[vii] in 1803, United States courts have asserted the right to be authoritative interpreters of the Constitution, and the other political bodies have conceded them that power. At present, the role of the Supreme Court is the arbitrator of the Constitution with regard to the powers of the Executive and Legislative branches. On the same footing countries like the UK, and those in the EU adopted cyber security laws and are continuously improving to meet the needs of society. The Digital Security Act (DSA), 2018, and the freshly appeared Cyber Security Act 2023 (CSA) aim to safeguard computer systems, networks, and data.
The Digital Security Act is being “transformed” and “modernized” and will now be named the Cyber Security Act, in which sections of the existing law will be amended.
The draft law was approved in principle at a cabinet meeting, and will now be sent to parliament. It is expected to be passed in September. It proclaims penalties for illegal activities such as unauthorized access, disruptions, and the improper utilization of IT systems. To protect individuals from cyber-attack it must not curtail freedom of individual speech or freedom of the press. To meet international standards laws need to be unambiguous, comprehensive, and transparent in describing the offences.
A Timely Legal Reform
Modern technological inventions have become more accessible to general people. With the increasing number of users, the growing cyber threat in the digital realm is also increasing. To mitigate these threats and to protect individuals, organizations, and state interests from these threats there is no alternative but to introduce some legal mechanism or framework. Understanding the need for such a safeguarding mechanism Bangladesh enacted Information Communication and Technology Act (ICT Act) back in 2006. However, this Act was not comprehensive and also left out scopes for the misuses. To address the anomalies in this Act and to complement it Digital Security Act (DSA) was enacted in 2018. But instead of complementing and preventing the misuse of the ICT Act, DSA attracted some criticism.
Many people marked DSA as a tool to limit the freedom of speech of the citizens of Bangladesh. Freedom of speech is a fundamental feature of each individual’s right to self-development with knowledge and wisdom for self-fulfillment. The law enforcement agencies of Bangladesh has no arbitrary powers to arrest and detain any individual merely based on suspicion under this Act.
Also, numerous cases were filed against journalists, and many of them were arrested under DSA. As of consequence, many journalists, NGOs, and representatives from civil societies raised voices against this Act and demanded the cessation of the DSA. Hence, considering the shortcomings and to evaluate these voices legislatures have finally drafted a new law titled Cyber Security Act, 2023 (CSA) which is considered as the replacement of the DSA. On 9 August, 2023 the first draft of CSA was published on the website of the ICT department. This draft was available to be analyzed by the stakeholders with a two-week deadline. After receiving and considering the views of the stakeholders the draft of CSA received its final approval from the cabinet on 28 August, 2023. Now the new law can meet the demands of the protesters and the civil activists. Moreover, people all around must show responsible behavior in using digital platforms.
The proposed Cyber Security Act will carry monetary penalties instead of imprisonment in defamation cases filed under the Act. If the law comes into effect, the police will not arrest anyone in defamation cases. Many offenses that were non-bailable under the DSA have become bailable under the Cyber Security Act. The jail term for several offenses has been reduced as per the new changes. The penalty provisions for repeat offenses have been struck down in the new version. A new section on hacking is being added to the proposed Cyber Security Act.
“If someone is found to have committed cyber hacking, he/she will be punished with 14 years of imprisonment or a fine of Tk1 crore or both”.
The Philosophical Basis of Freedom
According to Vedas and the ancient Vedic world viewed witnesses of freedom of speech, especially in the approach to religion and philosophy in the schools of thought like Jainism, Buddhism, etc., in the post-Vedic period and their coexistence with Vedic schools points to a society that allowed free thinking and intellectual freedom.
Lord Krishna presents a comprehensive view of freedom of expression by saying ‘Speaking words that are truthful, pleasant, beneficial, and not causing distress or anxiety, as well as the study and recitation of scriptures – this is the austerity of speech.’ Kauṭilya’s Arthasastra prescribes specific monetary fines for false accusations and abusive language. Kautilya declares that slander is bad but abuse of money and property is worse.
If we think of the bad thoughts in our minds and with negative ideas, nobody can penalize them. However, if we speak bad speech, then that is punishable in small measure, and if we do bad deeds, then that is punishable in larger quantity. So, to maintain integrity is not only on the judges and lawmakers but also on the individuals of a society. The philosopher of India encourages contemplation and freethinking.
The Chilling Effect on Speech
The chilling effect on speech expresses people engage in self-protective censorship in fear of penalization. This concept has formed an essential part of First Amendment phraseology and jurisprudence in the United States since the 1950s when it was adopted into Indian free speech jurisprudence with the Delhi High Court. The Indian Supreme Court has now recognized this concept in several cases, such as R. Rajagopal v. State of T.N. where the Court modified the common law of civil defamation and noted the chilling effect caused by a no-fault liability standard. In the judgment of Shreya Singhal Union of India, the Supreme Court invoked the principles of ‘vagueness’ and ‘over breadth’ in addition to the chilling effect to strike down Section 66A of the IT Act in 2015.
Freedom of expression means the right to articulate one’s passions and opinions liberally by words of lips, letters, printing, movies, or any other approach. Freedom of speech and expression is also an indispensable requirement for democracy. We will not find any country in the world where there are no media or press laws or where the press is not expected to operate within the ambit of the law. The laws and rules managing the press in genuinely democratic countries are only sought to protect the fundamental rights of individuals and ensure the upholding of peace and tranquility in the country. News shall be honestly ensured with truth and accuracy in respect of the information available. A Journalist’s responsibility is to keep people informed of facts or issues, which persuade them or attract them. One should not report based on rumors and not supported by facts shall be verified before publication.
Media and Social Literacy
In 2017, a study on Dhaka city it was found that Bangladesh’s capital Dhaka was the city with the second largest number of active Facebook users in the world. Bangladesh is one of the fastest-growing countries of internet users and Facebook is the most popular social networking platform. Facebook fake news has generated panic and sometimes communal clashes resulting in deaths in Bangladesh. The legal framework on Facebook failed to create measures to identify hate speech. On October 20, 2019, four people were killed and over 50 others injured in a clash between villagers and police over an unverified Facebook post in Borhanuddin upazila of Bhola district, to protest a derogatory Facebook post. Again, in June 2019 a rumor spread on Facebook that a bridge under construction required human sacrifices as offerings, and consequently people were looking for children to kidnap. The Bengali-language text across the image translates to English as: “Padma Bridge seeks blood”.
Freedom of speech is to defend the right of all citizens to appreciate political issues so that they can participate in the horizontal working of democracy. Freedom of the press is at the heart of a State and also in political institutions. The Facebook Company is working on appropriate e proactive measures to detect hate speech, rumors, and related substance. However, the steps taken are not enough to tackle the millions of texts and images uploaded by almost two billion users every day. Freedom of the press, like freedom of speech, is subject to restrictions on the basis such as defamation law. A media literacy awareness program is essential and introducing the concept of media literacy to a textbook that people could think effectively helps the younger generations to maintain responsible behavior on social media as well as the police, lawyers, and Judge’s legal minds could extend. Facebook would not be able to tackle these situations if they are not aware of local laws that consider the nature of society’s customs. American judiciary has approved content-based regulation. In various cases, the Supreme Court carried out the content-based regulation of television and radio.
Role of the Supreme Court
It is well understood that the right to free speech is not absolute at all times and under all circumstances. Throughout US history, the Supreme Court has time after time recognized at least two ways in which constitutionally protected the autonomy of speech is narrower than an unlimited license to talk. On the one hand, a certain form of speech, or speech in certain contexts, has been considered outside the scope of constitutional protection. The Court put forward the test for ‘incidental limitations on First Amendment freedoms’. The First or Fourteenth Amendments prohibited Congress or the States from passing, when they have been found justified by subordinating valid governmental interests, a requirement to constitutionality which has essentially occupied a consideration of the governmental interest involved.
In India Tax Practitioners Assn. vs R.K.Jain, it had been held by the court that, ‘Truth based on the facts should be allowed as a valid defense if courts are asked to decide contempt proceedings relating to contempt proceeding relating to a speech or an editorial or article’. The Supreme Court made it clear that freedom of speech and expression has always been considered the foremost cherished right of every human being. Justice Singhvi elaborated this position with these words: ‘In the land of Gautam Buddha, Mahavir, and Mahatma Gandhi, the freedom of speech and expression and freedom to speak one’s mind have always been respected. After Independence, the Courts have zealously guarded this most precious freedom of every human being. Fair criticism of the system of administration of justice or functioning of institutions or authorities entrusted with the task of deciding rights of the parties allows the operators of the system/institution to remedy the wrong and also bring about improvements.
Freedom of Speech expressing thoughts may not be prohibited because it hurts somebody’s feelings. Over the last five decades, the Court has developed a progressively more complex set of standards governing who is protected to what degree concerning what issues of public and private interest. Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of the responsibility for government operations must be free, lest criticism of the government itself be penalized. Consequently, an extensive range of reporting about both public officials and candidates is protected. Certainly, the conduct of official duties by public officials is subject to the widest scrutiny and criticism. The Court has held as well that criticism that reflects generally upon an official’s integrity and honesty is protected.
During the Civil Rights movement of the 1960s, in the case New York Times Co. v. Sullivan the New York Times published an advertisement for contributing donations to defend Martin Luther King, Jr., on lying under oath charges. The ad contained several minor realistic inaccuracies. L.B. Sullivan, who is the Public Safety Commissioner, felt that the criticism of his subordinates reflected on him. It was as though he was not mentioned in the ad. Sullivan sent a written request to the Times to publicly apologize for the information, as required for a public figure to search for punitive damages in a libel action under Alabama law. Then the Times rejected and claimed that they were puzzled by the demand, Sullivan filed a libel action against the Times and a group of African American ministers mentioned in the ad. A jury in state court awarded him $500,000 in damages. The state Supreme Court affirmed and lastly, the Times appealed.
In a unanimous opinion in the US Supreme Court by Justice Brennan, the Court ruled for the Times. The Court thinks when a statement concerns a public figure, it is not enough to show that it is false for the press to be liable for libel. As an alternative, the target of the statement must show that it was made with knowledge of or reckless disregard for its deceptiveness. The philosophy of Times and the cases following it is expressed on matters of public interest and is protected by the First Amendment.
Free speech is meaningless unless it has room to breathe. The United States and India almost have parallel free speech provisions in their Constitutions. Justice Bhagwati stated, “The fundamental right to the freedom of speech and expression enshrined in our constitution is based on Amendment I of the Constitution of the United States and it would be therefore legitimate and proper to refer to those decisions of the Supreme Court of the United States of America to appreciate the true nature, scope, and extent of this right despite the warning administered by this court against use of American and other cases.’ While similarities are in their constitutional provisions, the United States and India have their unique jurisprudence on freedom of speech. It is important to notice that false statements made honestly are equally a part of freedom of speech. The Supreme Court of India applied the famous doctrine of the New York Times v Sullivan standard of American constitutional law against public officials. Accordingly, statements made against persons in the public eye can’t be considered defamatory unless they were made with ‘actual malice’. The proviso of freedom of speech and restrictions are the result of that way of thinking, and this is the Indian way on the contrary Americans have their own way of freedom of speech and expression. In Bangladesh we have diverse methods, media (print & electronic, papers & magazines, Radio and television, Internet and social Media) is the medium or instrument of storing or communicating information as the ‘Fourth Estate’ or the watchdog of the public affairs, informing the society and vice versa, acts as the forum to advocate the views of the society at immense to at the rudder of public affairs.