The words ‘speech’ and ‘expression’ are often used interchangeably to serve the same legal purpose but in technical terms they are not the same. Freedom of expression is a much broader concept and it also covers the right to freedom of speech. Literally speech means to express one’s thoughts and feelings in the form of verbally spoken words only, whereas expression stands for all form of communication of thoughts and feelings. Consequently, international instruments on Human Rights have given superiority to the word ‘expression’ instead ‘speech’, as ‘speech’ can be confined to only verbal forms of expressions but ideas or information can also be communicated through books, photographs, paintings, sculpture, music and so forth ways which rightly assumes a nature, which is much broader than mere speech.
Concept of freedom of speech can be traced down in early human rights documents. England’s Bill of Rights 1689 legally established the constitutional right of ‘freedom of speech in UK, which is still in effect. The first amendment of the US constitution also describes about this right. And gradually this right have expanded throughout the world as one of the basic fundamental human rights.
No rational society can defy the necessity of the right of the freedom of expression because if there is no expression, there is no thinking and ultimately, there is no such thing as wisdom. But it became a burning issue to determine the scope of this right since many scholars have given their opinion in both the positive and the negative sides of its absoluteness.
For example,, Indian Academician Pratap Bhanu Mehta believes that this right is not absolute because he believes some versions of hate speech will need to be prohibited in any democracy. But writers like Salman Rushdie believe it is absolute in nature. He believes that no one can remove from society terrible ideas by banning them. In fact, those ideas become more popular because of the social taboo it accumulates.
However, the more powerful of these two argument is that, expression communicates information of one’s intellect; but one must not be allowed to express anything without any limitation because this may lead to an undesirable situation committing defamation, hurt to religious sentiment, abetment of crime and many more will become mandated phenomena. No room must be constructed which will violate other human rights which are already been recognized because the right of freedom of expression is not a superior right comparing to other rights.
All legal systems of the world have put limitations in exercising this right otherwise it is proven to be hard to govern and consequently, difficult to maintain internal harmony. It is also important to enable one to express himself without much restrictions with a view to discovering the truth, promoting tolerance, supporting democracy and above all, ennoble the standard of society through constructive criticism. However, it is a matter of determination that what should the ambit of freedom of expression be. When the exercise of this right may be considered as violation of other rights and bad for the general good of the society. It is a very tricky business and intellectuals throughout the world have been sweating to solve this issue. Particularly at this moment, there are so many examples existing in international and national level which woke up the discussion of the ambit of this right.
If we just look back to the events of Charlie Hebdo, this French satirical newspaper was attacked and 12 people were murdered by radical Islamists because of it republished hateful writings against the Prophet of Islam despite worldwide protest against it at the first time. The Editor of Charlie Hebdo, Stéphane Charbonnier, was asked before the incident “if he could understand that moderate Muslims might have been offended by its cartoons of the Prophet Muhammad” and he replied “Of course!” and added “Myself, when I pass by a mosque, a church or a synagogue, and I hear the idiocies that are spoken in them, I am shocked”.
After this event the discourse on right of freedom of speech and expression gained much attention. Although the Declaration of the Rights of Man and of the Citizen has ensured freedom of expression in France but there are several exceptions where this right is limited. For example, under The Press Law 1881 libel may be punishable by a fine of up to 12,000 Euros (about US$12,900). In the same way The Pleven Act of 1972 and The Gayssot Act of 1990 prohibits incitement to hatred, discrimination, slander, racial insults, anti-Semite, or xenophobic activities, including Holocaust denial. Surprisingly, French courts ruled in Charlie Hebdo’s favor when their acts were challenged. However, since then many people have been convicted by French Courts for homosexual comments, anti-Sematic comments and denial of the Armenian genocide. And in 2013, a French mother was sentenced for “glorifying a crime” after she allowed her son, named Jihad, to go to school wearing a shirt that said “I am a bomb.”
The European Court of Justice enshrined the precedence principle in the Costa versus E.N.E.L 6/64 case. In this case, the Court declared that the laws issued by European institutions are to be integrated into the legal systems of Member States, who are obliged to comply with them. European law therefore has precedence over national law and is absolute. Therefore, it applies to French laws with a binding force. The Convention for the Protection of Human Rights and Fundamental Freedoms; Article 10; provides “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, (…) for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, (…).”
The UN Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following in his report of 16 May 2011 to the Human Rights Council (A/HRC/17/27): “legitimate types of information which may be restricted include (…), hate speech (to protect the rights of affected communities), defamation (to protect the rights and reputation of others against unwarranted attacks), (…) and advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (to protect the rights of others, such as the right to life).” So we see that even in France freedom of expression is not absolute rather is conditional.
However, too much restriction on freedom of speech might cause disastrous results. In Bangladesh, contexts are getting worse day by day with the killings of the bloggers and journalists even in daylight and shortcoming of the government to bring the murderers before Justice. Till 2013, four journalists named Shahidul Islam, Shahriar Rimon, Abu Raihan, Aftab Ahmed and one blogger named Ahmed Rajib Haider were killed while exercising their right of freedom of expression in their respective fields. Besides, the recent violent killings of bloggers Niloy Neel, Avijit Roy and Washiqur Rahman show that serious threats to freedom of expression persist in the country. More alarming is Government’s inability to control these attacks. Fear of persecution is causing de facto restriction on freedom of expression even where the restriction is not de jure. Moreover, the lawmaker’s recent attitude of having the desire of controlling the mass media through hugely criticized law is another indication of the freedom of expression situation in Bangladesh.
Section 57 of the Information Communication Technology (Amendment) Act 2013 restricts the freedom of expression which is guaranteed in Article 39 and conflicts with Articles 27, 31 and 32 of the Constitution of Bangladesh. Section 57 of the Act says, if any person deliberately publishes any material in electronic form that causes to deteriorate law and order prejudice the image of the state or person or causes to hurt religious belief, the offender will be punished for maximum 14 years and minimum 7 years’ imprisonment. It also suggested that the crime is nonbailable.
Interpreting section 57, all publications are deliberate; it’s a matter of analysis to ascertain the intention. The ambit of deteriorating law and order & hurting religious belief are not specified. So words and phrases of the section are not well defined so it left room for the law enforcers to abuse the provision. Only Ain o Salish Kendro (ASK) has reported 11 peoples’ information who became the victims of this section. All these make this provision even more draconian than that of section 66A of the IT Act of India holding the same as unconstitutional as it strokes the very root of the constitutionally guaranteed freedom of expression; the Indian Supreme Court has declared as null and void. Probably, the govt. learnt from our neighbor and appreciated the frequent opinions regarding the concerns of the specialists, civil society, human rights organizations and many more. Consequently, it is a good news came in Prothom Alo’s first page on 11th January 2016 that the government is going to finalize the draft of the Digital Security Bill 2016 omitting sections 54, 55, 56 and 57 of the ICT Act.
To conclude, it is already clear that the world community started embarkation to define the scope of the right to freedom of expression. Only European Court of Human Rights gave 48231 judgments of which 2206 cases were only relating to violation of Art. 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms till the date. Experts, academicians, legal practitioners are greasing their elbows every time to decide a situation by showing the sense and substance of its signification and limitation. It is our power to express thoughts and ideas which have distinguished us from rest of the living animals and make us more civilized. So let us not go back to the cave men era. In 399BC Socrates told to jury at his trial:
“If you offered to let me off this time on condition I am not any longer to speak my mind… I should say to you, Men of Athens, I shall obey the Gods rather than you.”