An attempt to use the French courts to silence criticism of the Bangladeshi prime minister will not succeed.

Criticising Hasina David Bergman August 7, 2021

Bangladesh media is very careful what it says about the country’s prime minister, Sheikh Hasina. 

Most of the media of course has no interest in writing or broadcasting critically about her (or the government), but there still does exist a very small number of media outlets that do try and report independently, and they are well aware that , if they write or broadcast beyond what is considered to be an acceptable level of criticism ,  their reporters, editors or publishers may face harassment, threats, the lodging of criminal cases, and arrest.

But what can the government do when the criticism about Sheikh Hasina comes from outside the country? 

As Netra News has reported, the government authorities block foreign websites, and make false copyright claims to get YouTube and other platforms to try to take down these non-Bangladesh based channels or websites. The authorities  can in any case be confident that the vast majority of media in the country will not republish or report on this critical journalism.

Last month, however, the international media watchdog RSF — Reporters without Borders —  published a report that named Sheikh Hasina as a “Predator of Press Freedom”. RSF, among other claims, said that “Although [Sheikh Hasina] claims to respect press freedom, her hold on power has been buttressed ever since by a refusal to tolerate any criticism. […] The Digital Security Act (DSA) adopted in 2018 has rounded off the arsenal that her government uses to impose her views. Packed with deliberately vague wording, it is the ultimate weapon for getting journalists to censor themselves.”

As noted in a previous column, not a single newspaper or media outlet in Bangladesh published the news of Hasina’s entry on this media freedom shame list  —  though a few outlets published a press release from a pro-government journalist organisation condemning RSF, without giving out any details.

However, for the supporters of the Bangladeshi prime minister, censorship was not enough. 

On behalf of four French Bangladeshis, a lawyer in France has written a legal notice asking RSF to explain within 15 days why they should not take legal action against the media watchdog for defaming Sheikh Hasina. 

This mimics a common strategy of the Awami League government in Bangladesh:  getting political supporters to take legal action claiming defamation, not of themselves, but of their  political leaders. This strategy works in Bangladesh, acting as a tool for serious harassment, ultimately stifling criticism by intimidation. Look what happened, for example, to Mahfuz Anam back in 2016. Anam, the editor of the leading English language newspaper The Daily Star, was subject to dozens of third party defamation cases lodged by Awami League supporters alleging that he had defamed Sheikh Hasina.

This however would not work in France. 

Netra News consulted Christian Curtil, an attorney at the Bars of Paris, and founder of the law firm, Curtil Law. He explained the reason why this legal action will flounder.

First, French law does not have a procedure to send a legal notice with a 15 day ultimatum. This may be common practice in Bangladesh, but not in France.

Curtil said that the practice of giving someone 15 days to explain “does not exist under French law.”

Second, in French law, a person cannot take legal action claiming another person has been defamed.

Curtil said: “No, [in French law] you can’t take a defamation action on behalf of someone else. It would be dismissed by the courts.”

Sheikh Hasina herself would have to initiate the legal action.

Third, even if Sheikh Hasina took legal action against RSF for describing her as a “Predator of Press Freedom”, it is unlikely that such a claim would succeed. 

In French law there are two possible causes of action Hasina could take. 

The first one is to claim that she was “insulted”, but Curtil says that being described as a “Predator of Press Freedom” is unlikely to come within that category. “To be called an idiot is no longer viewed as an insult in French law,” he said. “Therefore, to be called a Predator of Press Freedom is unlikely to be seen as an insult.”

The second possible cause of action would be for Hasina to claim that she has been “defamed”. This would require the Bangladesh prime minister to show that something “untrue” was said about her which had damaged her reputation. Even though calling Hasina a “Predator of Press Freedom” is an opinion and not a claim of fact, says Curtil, it would still fall within what is legally permitted, as French law allows for negative opinions about political leaders.

Unsurprisingly, RSF is sticking to its guns.

“The publication of RSF’s Gallery of Predators is the result of an in-depth, substantiated study based on facts and double-checked elements,” Daniel Bastard, the Asia-Pacific Director at RSF told Netra News. “Therefore RSF is not considering taking out any related article, nor considering expressing apologies. We would consider it if factual elements could be produced to contradict our conclusions, but no such element has been produced so far. As a result, we firmly stick to our stance.”

“Criticizing some aspects of a public figure’s action stands within the scope of freedom of expression, and there is absolutely no insult or defamation in what we have published.”

The French lawyer did not respond to a request for comment.

Even though destined for failure, the legal action is nonetheless instructive. 

First, while Hasina has not herself taken this legal action against the international media freedom watchdog, it has been promoted by the Bangladesh government’s press agency, while Hasina herself implicitly supported this by not addressing and criticising it. 

It speaks volumes that the prime minister, criticised for being a “Predator of Press Freedom”, is happy to allow her supporters to try and silence the international media watchdog which describes her in that way. It is further evidence for the organisation’s very claim, that the prime minister is among the world’s worst leaders in relation to restricting the media.

Secondly, the legal claim further shows the bizarre linkages made by Awami League supporters between Hasina, her father and Bangladesh. In the legal letter the plaintiffs stated: “Not only did my clients take this statement [about Hasina being a Predator of Press Freedom] as an insult to their minister, but also to the memory of her late father. And as a consequence, an attack on the integrity of Bangladesh and its people.”

Apparently, according to these supporters, a criticism of Sheikh Hasina, is a criticism of her father Sheikh Mujib and therefore is also an “attack on the integrity of Bangladesh and its people.” The idea that criticism of the current prime minister is equivalent to an attack on the country — indeed “the people” of the country — is transparently ridiculous, and is the kind of language employed by authoritarian despots.

Awami League and its supporters should understand that criticism of Sheikh Hasina is just that — criticism of her actions as prime minister of the country. They may not accept them – and they are entitled to rebut them. But they are not entitled to shut them down. Moreover, they should never claim that criticism of the prime minister means criticism of her father, the country’s independence leader, or to Bangladesh as a country.●

David Bergman (@TheDavidBergman) — a journalist based in Britain — is Editor, English of Netra News.