Sheikh Hafizur Rahman Karzon

Freedom of press, an offshoot of freedom of thought, conscience and speech, has become instrumental for establishing a democratic state where fairness, transparency and free expression constitute skeleton of that polity. Every segment of the above right is very important as freedom of thought and conscience is essential for developing human personality, knowledge and civilisation. Freedom of speech and expression including freedom of press is the very foundation of democracy. Without ensuring free expression, criticism and open discussion democracy cannot function smoothly. But this freedom, like other rights, is not unfettered as it has been given to the citizens subject to a number of conditions including the right of the persons to remain unassailed by the press reports. Freedom of press is important but right to reputation is also important, as it is the most dearly valued property and attribute of a citizen. So law has to accomplish the delicate task of maintaining a balance between two very important but conflicting rights.

Constitutional mandate
Article 39 of the Bangladesh Constitution has provided freedom of thought, and conscience, and of speech. Article 39(1) has guaranteed freedom of thought and conscience in absolute language as state or any other authority cannot impose any restriction on any citizen the way she/he thinks. The state cannot make any law curbing thought and conscience of citizens, it cannot pass any instruction to which line the citizens should direct their thinking. Thought and conscience is the inherent attribute of human being and it is a continuous process through which human personality sprouts. So the Constitution very correctly recognises this indispensable right of every citizen and keeps this right beyond any restriction.
The freedom of speech and expression and freedom of press have been guaranteed by Article 39(2) of the Constitution. Though freedom of press is implicit in the freedom of speech and expression but considering the importance of print media, freedom of press has been mentioned separately. But these freedoms are 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, in relation to contempt of court, defamation or incitement to an offence. All the citizens of Bangladesh can exercise their freedom of speech and expression by remaining within the constitutionally stated horizon. If anybody oversteps the boundary she/he will be considered to have violated the constitutional provision and will be subject to sanction of law.

Defamation
Defamation has not been defined in the law. As common parlance goes, defamation means to injure one's reputation, to rob one's fair name. According to Clerk and Lindsell, when a person directly communicates to the mind of another, matter untrue, to disparage the reputation of a third person, he is on the face of it guilty of a legal wrong, namely defamation. Defamation can be committed by words, signs or visible representations which can stigmatise the reputation of a person by degrading her/him or exposing him/her to contempt, ridicule or public hatred and in this way can lower the prestige of a person in the eye of right thinking members of a society. Most of the citizens, through their tireless endeavour, develop their position in the society and want to lead some respect in the esteem of others. The reputation and dignity acquired by an individual is considered very sacred property and it needs to be protected against any encroachment. When any person does anything, by spoken or written words, by which substantial damage is occasioned to reputation of any other person, simply that is called defamation.

Law of defamation in U.K
In English law libel and slander are two principal ways by which good name of any person can be assailed. A defamatory statement is a libel if made in writing, film, broadcasting, or other permanent form. When any defamatory statement is made orally or in any temporary form it is called slander. Libel is actionable per se, but slander is not actionable without proof of actual damage. Under English law they are twin torts or two varieties of defamation, the object of the law is to give compensation to the injured party. Libel is not only a civil wrong but also a criminal wrong, an offence under English law. Unless something is said to contempt a court or words are blasphemous, seditious, or obscene, slander is only a civil wrong.
Law of defamation in Bangladesh
In Bangladesh there is no statutory law concerning defamation except what is contained in chapter 21 of the Penal Code. Regarding civil liability of for defamation, any person can file a petition with a civil court for compensation. Every citizen has right to protect his/her reputationthis is the ground for which courts entertain suits for damages for libel and slander in Bangladesh as well as in United Kingdom. The civil liability for defamation to pay compensation is not governed by any statutory law in Bangladesh, rather it is determined by the principles of justice, equity and good conscience, originated in England and later on these principles were imported in this sub-continent including Bangladesh. The criminal liability for defamation is codified and embodied in section 499 of the Penal Code of Bangladesh. It is to be mentioned that before the enactment of the Indian Penal Code in 1860 defamation was considered merely as a civil wrong.
As per section 499 of the Penal Code, if any person by words, spoken or written, or by signs or visible representations, makes or publishes any imputation, which will harm the reputation of another person, the former person will be liable to defame the latter person. This section provides a list of exceptions. If any situation fit any of the prescribed exceptions that will not come within the purview of defamation. It is not defamation (1) to impute anything which is true concerning any person, if it be for public good; (2) to express in good faith any opinion respecting the conduct of a public servant; (3) to express in good faith any opinion respecting the conduct of any person touching any public question; (4) to publish a substantially true report of the proceedings of a Court of Justice; (5) to express in good faith any opinion respecting the merits of any case, civil or criminal; (6) to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgement of the public.

Conflict between freedom of press and defamation
Freedom of press is inevitable pre-condition for a free, transparent and democratic society. The first thing any autocratic ruler tries is to curb the freedom of press. The government which is not amenable to people and law, the institution or persons who do something prejudicial for national economy or public welfare always fear free communication of information. So freedom of press is sine qua non for a modern democratic society. Free press keeps the people abreast of all the latest developments. It meets up the demands of modern people to know news of politics, economics, government activities, crime situation, sports, weather, space etc. By hard reports press is mitigating the right of every citizen to know what is going on in country and abroad. By commentaries, post-editorials and other supplements press contributes to form strong public opinion for good governance, convenient law and order situation, and good economic condition. Considering the role of press very significant, the Constitution of Bangladesh separately mentions and recognises the freedom of press. The Constitution, law and people cast heavy responsibility on the press, so the pressmen should present report, commentaries and criticism with great care and caution. They should be very careful so that through their publication reputation of any person cannot be harmed.
Reputation is very valuable asset of any individual. Therefore, the provision of the Constitution has guaranteed the freedom of press subject to defamation. Constitution has to keep a balance between these two rights, which often conflict with each other. To maintain the unhindered flow of information the Constitution recognises the freedom of press, but it conditions this freedom so that no pressman can disparage the good name of other by taking advantage of this freedom. The Penal Code gives rights to the pressmen to publish reports concerning corruption, criminal activities, abuse and illegal activities if those reports are true and for public good. The Code also gives rights to criticise public figures and public officials.

An apprehension
Under the present dispensation of law the wrong of defamation is a bilabial offence. So any accused can easily get bail. But apprehension mounts when any affluent person or a person holding state apparatus files a case of defamation with any magistrate court to harass any citizen. After taking the case into cognisance if the court (not because of the merit of the case, but due to the influence of powerful state functionaries) issues any warrant of arrest and if the accused person, though innocent, is arrested before getting bail and kept in police custody and later on if that person is adjudged innocent, who will be going to compensate for the suffering of the person? This area of apprehension should be taken into consideration by the main actors of existing system and also by lawmakers.

Concluding remarks
The propriety of law can be determined by the fact that how efficaciously it can regulate the behaviour of different segments of society. Sometimes law has to maintain a middle course to keep balance between different rights if they collide with each other, but not at the expense of justice. All the rights and provisions should be given effect to by the courts by harmonious interpretation if necessary. The Constitution guarantees rights to the citizens and different professional groups, but limits the enjoyment of rights by security of states, welfare of society and rights of others. A check and balance system has been provided by the Constitution, now state machinery should ensure smooth exercise of citizens' rights. At the same time judiciary, civil society and press should be cautious so that none can be harassed by manipulating state apparatus and citizens' rights remain protected.

Sheikh Hafizur Rahman Karzon is a Lecturer, Department of Law, Dhaka University.