It is generally understood that there is a close nexus between freedom of speech and the term freedom of expression. The former generally refers to the right to communicate one's opinions and ideas without fear of government censorship. It is similarly felt that the term freedom of expression connotes and includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used.
In the same way, freedom of information is understood to be an extension of freedom of speech where the medium of expression is expanded and diversified through the use of the Internet. Freedom of information according to some analysts also refers to the right to privacy in the context of the Internet and information technology. This is included in the equation because consistent with the right to freedom of expression, the right to privacy and responsible use of the media is recognised as a human right. Freedom of information is consequently considered to be an extension of this right. Other analysts also agree that freedom of information may include within its paradigm the concept of exemptions or censorship in the providing of information. This is seen from an information technology context, i.e., the ability to access Web content within the matrix of censorship or restrictions.
Governments sometimes restrict expression or the right to speech through different forms of limitations. This sometimes includes the right to undertake action that may refer to libel, slander, obscenity, pornography, sedition, incitement, copyright violation, trade secrets, non-disclosure agreements, right to privacy, public security and public nuisance. However, whether these limitations can be justified under the harm limitation principle is determined on the basis as to whether influencing a third party's opinions or actions adversely to the second party constitutes such harm or not. It also needs to be noted here that governmental and other organisations could sometimes have policies restricting the freedom of speech for political reasons. This precept is used sometimes to expand the range of free speech limitations by prohibiting forms of expression that may be considered offensive to society, special interest groups or individuals. Such limitation is generally achieved through using differing degrees of religious legal systems that prohibits incitement of ethnic or racial hatred.
The right to freedom of expression is recognised as a human right under Article 19 of the Universal Declaration of Human Rights and also considered as an international human rights law under the International Covenant on Civil and Political Rights (ICCPR), Article 10 of the European Convention on Human Rights, Article 13 of the American Convention on Human Rights and Article 9 of the African Charter on Human and Peoples' Rights. These provisions hold that "everyone shall have the right to hold opinions without interference" and "everyone shall have the right to freedom of expression and that this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice regardless of frontiers".
It would be worthwhile to refer here to the fact that activists believing in freedom of expression are sometimes encouraged in supporting their cause because of views expressed at different times by John Milton, (the noted English poet and essayist) that underlined that freedom of speech should be understood as a multi-faceted right that includes not only the right to express, or disseminate information and ideas, but also three further distinct aspects--the right to seek information and ideas, the right to receive information and ideas and the right to impart information and ideas.
It may, however, be pointed out here that it is generally agreed that the exercise of these rights carries special duties and responsibilities and may be subject to certain restrictions when necessary, particularly with regard to the respect of the rights or reputation of others or for the protection of national security or of public order or of public health or morals. With respect to governmental information, any government may distinguish which materials are public or protected from disclosure to the public based on classification of information as sensitive, classified or secret and being otherwise protected from disclosure due to relevance of the information to protecting the national interest.
The right to freedom of expression is also related to the right to a fair trial and court proceeding which is not prejudiced because of lack of equal opportunity. In the western world or in countries where democracy is practised, as a general principle, freedom of expression cannot transgress the boundary of privacy (without specific prior agreement) but greater latitude is sometimes shown when it relates to criticism of public figures. Such criticism, however, has to be substantiated in clear terms. Otherwise, the person making such unproven allegations can be summoned to a judicial process that is consistent with civil law by the aggrieved party or institution. Freedom of speech is understood to be fundamental in a democracy. This norm means that there can be no limiting of freedom of expression through public debate even in times of emergency. One of the most notable proponents of the link between freedom of speech and democracy has been Alexander Meiklejohn. He has argued that the concept of democracy is not only that of self-government by the people but also the creation of a system that creates an informed electorate. In this context he has pleaded for not having any constraints on the free flow of information and ideas.
One needs to note here that the current government in Bangladesh has been aware of this view since its political party came to power in 2009. It is this need that persuaded it to enact the Right to Information Act in its first session of the newly elected Parliament in 2009. It has also expanded the presence of media by permitting the growth of the electronic media (through nearly 30 television channels in the private sector, so that faults in governance can be presented in real time), print media, the broadcast media (FM Stations) and on-line media. The last seven years has also seen phenomenal growth in digitalisation, the use of the internet and mobile phones (most of them equipped with cameras). All these steps have ensured the growth of transparency and accountability in decision-making and also helped to partially stem the growing tide of corruption and the informal economy.
However, one hopes that this time after the elections in February, citizens in general, will be able to witness live television telecast of debates on important issues. Such direct telecast of the Jatiyo Sangshad activities will enable viewers to know what is going on inside this institution. This will help to reduce the possibility of manipulation of the electorate that might negate the democratic ideal.
One is tempted here to agree with the views expressed by Thomas I. Emerson that freedom of speech helps to provide a balance between stability and change. He correctly observed that freedom of speech acts as a "safety valve" to let off steam when people might otherwise be bent on revolution. He also appropriately argued that "the principle of open discussion is a method of achieving a more adaptable and at the same time more stable community, of maintaining the precarious balance between healthy cleavage and necessary consensus." One needs to observe at this point that this also helps to ameliorate the normal process of bureaucratic decay and mindset.
It would be appropriate to similarly refer also to Joel Feinberg and his comment about Mill's "harm principle" as opposed to the "offense principle". He pointed out in 1985 that the harm principle does not provide sufficient protection against the wrongful behaviours of others. He has observed that offending someone is less serious than harming someone. There is a subtle difference that needs to be taken note of and the penalties imposed should be higher for causing harm. Bernard Harcourt added another dimension to this in 1999 when he mentioned that "the original harm principle was never equipped to determine the relative importance of harms."
There has been another evolution in the arena of gathering and disseminating information. Bernt Hugenholtz and Lucie Guibault, in this regard has pointed out that the public domain is under pressure today from the "commodification of information" as information with previously little or no economic value has acquired independent economic value in the information age. This includes factual data, personal data, genetic information and pure ideas. The commodification of information is taking place through intellectual property law, contract law, as well as broadcasting and telecommunications law. This in turn is generating its own complexity within the information domain.
There is also currently an anxiety about the need to create responsibility in the manner in which the internet is functioning as a medium. It has been noted that observations on the internet can sometimes be unpolished, emotionally charged, sexually explicit, and vulgar - in a word, "indecent" for many communities. Governments in many countries have already taken the proactive and preemptive effort to protect children from pornography on the Internet through vigorous enforcement of existing laws criminalizing obscenity and child pornography. This is working only up to a point. More individual and collective responsibility is required.
I am not suggesting that we need to be a closed society as is the case in some countries that are in the list created for this purpose by Reporters without Borders. However, it is time to practise our rights with caution and not publish, broadcast or disseminate information without checking its authenticity.
Muhammad Zamir, a former Ambassador is an analyst specialised in foreign affairs, right to information and good governance.
muhammadzamir0@gmail.com
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