Law Review; Digital Security Act 2018 and Questions of Citizens’ Basic Human Rights

Introduction

While enacting the Digital Security Act (DSA) 2018, the Government of Bangladesh deliberated only to protect the critical information infrastructures of the State from various types of cyberattacks.  In the enacting process, State didn’t consider the confidentiality of electronic communication and personal data protection, freedom of expression online and other fundamental human rights of the citizens. The Government has in recent years been undermining freedom of thought, conscience, and indication to curb the flow of information, and this has now become even more widespread in the time COVID 19 pandemic. Instead of protecting the freedom of expression and opinion about the coronavirus pandemic, the authorities have violated the right to express the thoughts, conscience, and views of journalists, doctors and health workers, lawyers, teachers-students, garment workers, and humans rights activists through assault and detention/arrest. The repressive DSA is not limited to criminal charges and detentions but also impedes the implementation of many fundamental rights, including freedom of movement, freedom of thought, conscience, and opinion, right to life, freedom of religion and belief, and freedom of movement. Therefore, civil and political rights have been violated. While reprehensible, the truth is that the control is not limited to detention and arrest only; many lose their dignity, social status, employment and living with the threat of re-accusations. Many are socially degraded and humiliated too.

Article 19, an International rights organization working on freedom of expression, reported that there had been 197 cases under the DSA in Bangladesh from 01 January to 31 December 2020 (06 January 2021, The New Age). Furthermore, at least 41 cases have been filed against 75 writers and journalists, and 32 were arrested under the Digital Security Act in 2020. In the first four months of 2021, seven journalists have been indicted in five cases under digital law. According to Mr. Sohel Rana, an Assistant Inspector General of Police Headquarters, 1135 people were arrested in 732 cases under the Act in 2019. Article 19 stated that in 2018, there were 71 cases under the DSA and ICT Act (03 May 2021, Prothom Alo). In January 2020, relying on the reports published in five national dailies and top online news portals, the Monitoring Cell of the Bangladesh Federal Union of Journalists (BFUJ) reported that 38 journalists were sued, arrested, remanded and harassed under the DSA in 2019 (20 January 2020, Manabkantha). The worst of the last three years was 2020, when 339 people were arrested in 165 cases in the first two months of this year— at least 13 cases on March, 24 on April, 31 in May and 21 in June (till 22 June 2020) were filed under the Act (26 June 2020, Daily Prothom Alo). The most alarming is that out of the 20 sections or provisions of the law that deal with offences and punishments, 14 are non-bailable. Five are bail-able, and one can be negotiated. The lowest sentence is one year in prison and the highest life-term, but mainly in the range of between 4 and 7 years. It inevitably creates an atmosphere of fear and intimidation.

Some of the recent cases filed under the DSA show that the accused was first forcibly disappeared for a temporary period and then shown arrested under the Act. It is in stark contrast to the instructions given by the Supreme Court of Bangladesh in the Blast and Others v. Bangladesh & Others case (Writ Petition No. 3806 of 1998) and clear violations of the Torture and Custodial Death (Prevention) Act- 2013. Moreover, the tendency to arrest the accused late at night has also increased. This trend reminds many of us of midnight arrests during the military regimes in the 1990s. The cases of women charged are no exception, which violates the legal and constitutional rights of women. Due to the COVID 19 pandemic, everyone is stuck at their homes, so being arrested late at night sends a different message to the human rights defenders.

During the COVID-19 pandemic, detainees under the DSA are primarily accused of making ‘insulting,’ ‘rumormongering’, offensive, and derogatory cartoon/satirical/defamatory statements through social media against influential individuals. On the other hand, those who have recently filed lawsuits against the repressive DSA are mainly local government representatives or leaders and activists of the ruling political party. The latest addition to this is the university administration. The university administrations are not only filing the cases but also confirming the arrests in those cases. Even taking advantage of this repressive law, rights organizations observe the extreme abuse of the latest defamation case by arresting a 14-year-old school student of Paragaon Navadiganta High School in Bhaluka Upazila on 21 June 2020. Hanif Mohammad, general secretary of Habirbari Union Juba League, filed a case under the DSA against the 14-year-old schoolboy for posting an ‘offensive’ post about the PM from his Facebook ID. The 14-year-old boy named Emon was produced in Mymensingh court under the circumstances and later was sent to the Juvenile Development Center in Gazipur. In addition, nine cases have been registered for allegedly posting ‘defamatory’ posts on social media in the name of the late former health minister Mohammad Nasim. Two teachers of Begum Rokeya University and Rajshahi University were arrested (26 June 2020, DW). The University administration has filed a case against Mahir, a student of Shahjalal University of Science and Technology under the DSA, and expelled a student from Kushtia Islamic University on similar charges.

In this reality, the aim and purpose of this legal review are to present a constructive analysis of the DSA 2018 from the human rights perspective. The study is limited to a few specific fields considering time and paper space constraints. Considering the limitations of this review, the author believes that citizens of various professions would feel compelled to analyze, interpret, review constructively and critique the Act from their respective social, political, economic and cultural perspectives.

 

This legal review can be divided into four parts:

1. A brief background of the enactment of the Digital Security Act 2018.
2. International human rights concepts in the pretext of the Digital Security Act 2018.
3. Analysis of the various problematic sections of the Act from a human rights perspective.
4. What are citizens currently required to do to repeal the law?

 

In this context, we have focused on a constructive analysis of the Digital Security Act 2018, primarily based on international human rights instruments, policies and reports, including Article 19 of the International Covenant on Civil and Political Rights (ICCPR), General Comment 34 (GC34) on Article 19 of the United Nations Committee on Human Rights, Johannesburg Principles, and Tshwane Principles, and on constitutional and human rights laws and policies. Besides, this preventive law has been reviewed in the light of the Constitution of the people’s republic of Bangladesh, Information and Communication Technology Act (ICT) 2006, Bangladesh Telecommunication Act 2001 and respective Rules. At the same time, this study has relied upon a report by Frank La Rue, the UN special rapporteur for the promotion and protection of the right to freedom of expression at the 17th session of the UN Human Rights Council, presented in Geneva in May 2011.

 

I. A Brief Account on the Enactment of the Digital Security Act

Since 2000, Bangladesh is slowly moving towards the realities of the digital age. At present, many activities of the Government of Bangladesh are run through cyberspace. At the same time, the use of cyber technology by citizens and private organizations is on the increase. In reality, on the one hand, it is creating various kinds of digital civic opportunities such as attending community meetings or functions, contacting public officials, providing amenities fees, attending protests, signing petitions, or writing articles; and on the other, criminal activities using technology are also evident in the digital world. Until October 2015, in addition to the Information and Communication Technology Act 2006 (as amended in 2009 and 2013) (hereinafter ICTA 2006) and the Information and Communication Technology Policy 2015, the Government continued to control, secure and manage cyberspace through the Bangladesh Telecommunications Act 2001 (hereinafter BTA 2001). Following this, in May 2015, the Government abruptly proceeded with another new deterrent law, the Cyber ​​Security Act, without the participation and discussion with multi-stakeholders. Media reports of that time confirmed that the law would be renamed and enacted as the Digital Security Act in June 2017.

The Government has repeatedly said that the Central Bank of Bangladesh has been the victim of cyber-related crimes several times in recent years and that new law has been put in place to curb such crimes or what is not in the existing law. The particular issue that has not been made clear to the citizens from the Government is that the Ministry of Posts, Telecommunications and Information Technology approved the ‘National Cyber ​​Security Strategy’ in English on 11 March 2014 in violation of the Bangla Bhasha Procholon Ain, 1987[1] (literal meaning, ‘Bengali Language Implementation Act, 1987′ and submitted to the Global Cyber ​​Security Agenda at the International Telecommunication Union. Section 3(1) of the Act said that “after introducing this Act, all records and correspondences, laws, proceedings in court and other legal actions must be written in Bengali in all courts, government or semi-government offices autonomous institutions Bangladesh”. At the same time, Section 3(2) stated that “If anyone submits an appeal or petition at any offices mentioned in clause 3(1) in any language other than Bengali, the appeal or petition will be considered illegal and ineffective” and section 3(3) “If any government staff or officer breaches this act, he or she will be accused of violating Bangladesh Civil Servant Order and Appeal Rules, and necessary actions will be taken against him or her.” Therefore, the legality of Bangladesh’s National Cyber ​​Security Strategy is still under a question of law; however, an integral component and the main goal of the National Cyber ​​Security Strategy is the modernization of rules to prevent and prosecute cybercrimes on a priority basis.

Despite strong protests from international, regional and local journalists, lawyers, teachers-students, Internet users and human rights activists, the Digital Security Act 2018 was passed by voice vote in the Bangladesh Parliament on 18 September 2018, and the law has been in force since 9 October 2018. On 8 March 2020, the first three cases of coronavirus were reported in Bangladesh. On the same day, the Department of Information and Communication Technology of the Ministry of Posts and Telecommunications issued the Digital Security Rules 2020 under the DSA 2018 (ICT Department, Government of Bangladesh). While claiming that the new Digital Security Act has some relevance in protecting the citizens and their rights, the law contains several provisions that restrict citizens’ right to freedom of expression, privacy, and various civil rights and criminalize pro-people activities.

Even before the enactment of the DSA, the citizens of Bangladesh were in such a reality from 2013 to 2016. At that time, the people were the victims of massive abuse of various sections, especially sections 46 and 57. It is pertinent to mention here that under the ICTA 2006, 66% of the cases could not be proved, 13% of the cases were proved to be false at the investigation stage, and 94% of the cases were under the controversial section 57 (23 September 2016, the Daily Prothom Alo). According to the newspaper report, the Cyber ​​Crimes Tribunal has reviewed the cases and found that the police had submitted final reports to the court in 46 cases in the last three years (23 September 2016, the Daily Prothom Alo), of these, 4 out of 10 cases were filed against journalists, which were not found to be true in the investigation, and the police submitted a final report to the court. So, in the new-old reality, there is a logical position for the Government to make laws to prevent legal abuse, protect cybersecurity, and prevent and control the number of related crimes. Following this abuse of the law, the DSA 2018 was passed, and Sections 54, 55, 56, 57 and 66 of the ICT Act were repealed by it. However, the abolition of these five sections of the ICT Act did not end the oppression but enhanced their application through DSA 2018. An official in charge of the police headquarters told the media on condition of anonymity, “the situation is still the same. If lawsuits are filed at this rate, by the end of the year, the case rate will increase to 60 per cent compared to last year” (The Daily Prothom Alo, 26 June 2020).

At present, the percentage of cases that the repressive sections of the DSA could not prove, or the percentage of cases that have been proved false at the investigation stage, or the percentage of cases under the controversial sections are unknown to the citizens. Even in the last three years, how many final reports have been submitted to the court by law enforcement, how many have been granted bail and how many are detained in jail are still unknown.

 

II. International Human Rights Concepts in the Pretext of Digital Security Act

One of the fundamental foundations of any democratic state system is the guarantee of freedom of thought, conscience and expression. Article 19 of the Universal Declaration of Human Rights (UDHR) urges citizens’ right to freedom of expression. Article 19 of the International Covenant on Civil and Political Rights (ICCPR) also calls for freedom of expression. Bangladesh is a signatory and ratifier of the ICCPR and several other international human rights instruments. Therefore, Bangladesh has an obligation in both the national and international community to abide by international human rights laws. Just as Bangladesh has to be constitutionally democratic, so too must any law or regulation enacted by the legislature not conflict with any International charter. Here is the expectation of the citizens of Bangladesh and the international and regional community.

Although international charters do not consider digital or online media, theoretical or objective rules for digital or online activities fall within the scope of this charter. Issues related to the concept of freedom of expression have been further clarified and elaborated by the UN Committee on Human Rights, General Comment No. 34 (hereinafter GC34) on Article 19, the resolutions adopted by the UN General Assembly and various reports by UN Special Rapporteurs. However, according to GC34 and multiple reports by UN Special Rapporteurs, the academic goal or purpose of ensuring freedom of expression offline will also apply to ensure freedom of expression online.

Although the Bengali translation of ‘Freedom of Expression’ is ‘Freedom of Opinion’, its scope is not limited to constitutional or legal concepts. No healthy and active political sphere can be formed without freedom of thought, conscience and expression. Various studies and international experience prove that the suppression of thought, conscience and expression creates conditions for terrorism and violence. Freedom of expression means not only freedom of speech but also freedom of expression in any other way. Many fundamental rights, including the right to life, due to having privacy, freedom of religion and belief, and freedom of movement, are related to the freedom of speech and expression of opinion. Just as ensuring citizens’ freedom is necessary to establish a democratic state system, it does not mean spreading hatred or animosity towards any particular race, caste, religion or group.

Article 39 of the Constitution of Bangladesh and Article 19(3) of the ICCPR determine why a State may restrict freedom of expression. It states that subject to certain conditions to protect the rights or reputation of others and to protect national security, public order, public health and ethics, the State may restrict expression. Also, the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, Tshwane Principles on National Security and Right to Information states that the purpose of interfering with freedom of expression must be clearly defined by law. The basis of legitimacy must be clear to the citizens as part of the State’s duty to protect democracy. After all, limiting rights must not be excessive. Freedom of expression includes the right to information, the right to store information and provide information.

The reports of the UN Special Rapporteurs play an essential role in protecting the freedom of expression, the right to privacy and various civil rights of citizens. A report by the UN Special Rapporteur (Frank La Rue) for the Promotion and Protection of Freedom of Expression was presented at the 17th  session of the UN Human Rights Council in Geneva in May 2011. The critical points of the report highlight the Internet as one of the most powerful tools of the twenty-first century, partly because of its unique technical features, such as bringing transparency to the behaviour of those in power, the right to information and enhancing the benefits of active citizen participation in building a democratic society. The report reiterates that Article 19 of the UDHR and the ICCPR are fully applicable to the freedom of expression online.

The report also examines significant trends and challenges in the right of all individuals to seek, obtain and disseminate information through the Internet. The Special Rapporteur emphasized the unique and transformative nature of the Internet, enabling the exercise of the individual right to freedom of opinion and expression and in many other human rights practices and the progressive development in society. Chapter 3 of the report identifies the applicability of international human rights norms and standards to online freedom of opinion and expression as a means of communication. Several exceptions where disseminating certain types of information can be restricted. Chapters 4 and 5 mentions two forms of internet use, a. internet access; and b. access to the material and technical infrastructure needed to access the Internet. Chapter 4 more specifically identifies some of how the States are increasingly censoring information online. These include— blocking or filtering content tenaciously, criminalizing legitimate expression, imposing intermediate liability, disconnecting users from the Internet, including intellectual property rights in the cyber law, cyber attack, and inadequate protection of privacy and the right to security of information. The fifth chapter discusses the issue of universal internet access. The Special Rapporteur said to investigate the matter further in his report to the General Assembly later. Chapter 6 contains the conclusion and the Special Rapporteur’s recommendations on the main points of the report.

To determine how much the UN member state, Bangladesh, agrees with this report, the situation of the countries now needs to be thoroughly assessed. There is no doubt that there are many obstacles in creating a favourable environment for accessing information and exercising freedom of expression on the Internet. The Special Rapporteur’s report documented these trends, highlighted their position within existing human rights legal philosophies, and made several public and private sectors recommendations.

 

III. Analysis of the Various Repressive Sections of the Act from a Human Rights Perspective

Several sections of the repressive Digital Security Act 2018 are inconsistent with national and international human rights principles, ethics and standards and can easily harass Internet users. Every lawsuit filed under this law can potentially violate the right to life, including the freedom of thought, conscience and expression of citizens, including the press and the media.

 

A. Sufficient Ambiguity and Inadequate Definitions

Section No.	Provisions	Comments
2(b)	“Data Storage” means text, image, the information presented as audio or video format, knowledge, incident, principle idea or guidelines, which­— i)     has been or is being formally produced by means of any computer or computer network or computer system; and ii)    has been prepared with the aim of using it in any computer or computer network or computer system.	Analyzing this definition, we see that the definition is defined as ‘digital data’ instead of ‘data storage’. Data storage is usually related to data recording in the storage medium, computer systems or other technologies like the cloud.
2(g)	“Critical Information Infrastructure”means any physical or virtual information infrastructure declared by the Government which is capable of controlling, processing, circulating or preserving any information, data or electronic information and which, if it is damaged or compromised, may adversely affect— i)     public safety or financial security or public health, ii)    national security or national integrity or sovereignty.	There are two approaches to the definition of ‘critical information infrastructure’. One party prioritizes ‘security, and the other party prioritizes the protection of the privacy of the personal information of the State and its citizens. Information infrastructure can only be critical if the Government relies solely on maintaining other important infrastructures or guarantees protecting the various interests listed in the definition. Adverse effects alone are not enough. The laws of different countries also determine what structure will be considered as ‘important information infrastructure’.   Overall, DSA focuses on security issues. The definition of critical information infrastructure in this section is not clear enough, and the definition of which computer system or network will be included may seem vague to many. In this case, one can mistakenly commit a crime without being sure whether s/he is committing a crime. At the same time, one can be a victim of this section as there is no clear idea of ​​what kind of activities would be meant to commit a crime against ‘critical information infrastructure’. On the other hand, unauthorized disclosure of any information or data of critical information infrastructure is also a crime. As recommended by the Johannesburg Principles, disclosing confidential information would not be a crime unless the disclosure of the information is not disrupted or done legitimately. If it justifiably harms national security, but public interest is more urgent or valuable than the amount of damage caused, it will not be considered a crime. Since the definition does not mention these, the Government or any person or organization of the Government, which is a part of the critical information infrastructure, will discourage any person or organization, especially the media personnel, from disclosing any corruption, misconduct or crime. In this case, if someone reveals any confidential information, which is not considered a crime under the Johannesburg Principles but can be charged as an offender under this section. In addition, section 2(3)(b) provides for the declaration of ‘critical information infrastructure by the Government, which may cover up corruption, crime or misconduct of the Government or any other government institution. On the other hand, it will narrow the way for any person, organization or journalist to publish that corruption, crime or misconduct.
2(k)	“Digital Security” means the security of any digital device or digital system.	This is inadequate, as it has failed to define what protection means. Instead, the definition should have referred to electronic data stored in computer systems or equipment or other measures placed against intrusion by outsiders.
2(q)	“Illegal Entrance” means entrance without the permission of any person or authority or entrance in violation of the conditions of approval of entrance by the said person or authority into any computer or digital device or digital network system, or by entrance mentioned above create hindrance in the exchange of any data-information suspend or prevent or stop the process of exchange of data-information, or change the data- information or add or deduct the data-information or collect the data-information with the use of a digital device.	The international cyber treaty defines illegal access, including illegal entry, data interference, and system interference separately. But in this definition of ‘illegal entrance’, all the issues have been linked together, which can undoubtedly be misapplied by the law enforcement agencies.
2(u)	“Cognition of Liberation War” means those great ideals, which inspired our brave public to dedicate themselves to the national liberation struggle and our brave martyrs to lay down their lives for the cause of liberation, the ideals of nationalism, socialism, democracy and secularism.	Nationalism, socialism, democracy and secularism— these are all ideology-centric concepts. These are based on political views and beliefs, and researchers have differing opinions on all these issues. Thus, there is an opportunity to deprive the freedom of expressing dissenting opinions.
2(v)	“Service Provider” means- i)     Any person who, through a computer or digital process, enables any user to communicate; or ii)    ii) Any such person, entity or institution who or which preserves or process data in favour of the service user.	From a comparative perspective of other countries, this definition has appeared as too broad.

 

Section 17 (Illegal access to critical information infrastructure), Section 18 (Illegal access to computers, digital devices, computer systems, etc.), Section 19 (Damage to computers, computer systems, etc.), Section 20 (Change of computer source code), Section 33 (illegal possession, transfer of information), and Section 34 (offences related to hacking)— these sections describe many crimes. There are three notable points in these sections:

1. There is no distinction between public interest hacking and criminal activity hacking.
2. The international cybercrime treaty defines many crimes, not all of which are mentioned in DSA. The DSA narrowly defines many of the crimes and does not adequately monitor the intention of the crime.
3. Many of the offences under the DSA have already been criminalized under various sections of the ICT Act.

As a result of interpreting so many crimes in different sections of this law, the sections are too broad, contrasting with the developed standards of the international cyber laws. Therefore, the broad power could use several sections of the Digital Security Act 2018 to criminalize ordinary internet users. Section 35 of the Act states, “If any person aids in committing any offence under this Act, then such act of that person will be considered an offence. In the case of aiding of an offence, the punishment will be the same as that of the original offence.” First, there is a difference between aiding and abetting a crime and punishing a direct offence, but this law does not differentiate. Second, ‘assistance in the commission of a crime was not defined, and the issue of intention to assist in crime was not taken into account.

 

B. Extensive Extraterritorial Application and Possible violations of International human rights law

Section 4 of the Digital Security Act provides for the exercise of extraterritorial application of the Act, i.e. “If any person commits any offence within this Act outside Bangladesh which would be a punishable offence if committed inside Bangladesh, then the provisions of this Act would be applicable in such a manner as if those acts were committed in Bangladesh.” Section 4(2) further states, “If any person commits any offence in Bangladesh within this Act from outside Bangladesh using any computer, computer system, or computer, then the provision of this Act will be applicable in such a manner as if the whole process of the offence was committed inside Bangladesh.” At the same time, Section 4(3) states, “If any person commits any offence outside Bangladesh within this Act from inside Bangladesh, then the provisions of this Act will be applicable in such a manner that the whole process of committing the offence occurred inside Bangladesh.” In addition to Section 4 of the DSA, Section 55 mentioned that “If regional or international assistance becomes necessary while conducting an investigation or trial of an offence under this Act, then, the provisions of Crime Related Interpersonal Assistance Act, 2012(Act Number IV of 2012) will be applicable”.

Very few laws in Bangladesh speak of the exercise of extraterritorial jurisdiction, though this is not a new legal principle. However, from a practical perspective, the state officials have to face some problems, especially the investigating officers and the courts. One of the problems is that to obtain the necessary, adequate and relevant information from another state in accordance with the appropriate legal rules, the provision of extraterritorial application is broad and opaque, which can even lead to violation of international human rights law. We believe that the provision of sovereign jurisdiction in the law of the land should be applied only when there is a genuine and significant connection with the crime and the courts, and investigating agencies can acquire adequate technical knowledge and skills. The most challenging aspect of the exercise of this jurisdiction is that multiple states can claim jurisdiction here. For example, if a citizen of state ‘B’ commits an offence in state ‘A’ against a citizen of state ‘C’, all three conditions can have legitimate interests. The States may seek to exercise jurisdiction over offences and offenders based on their respective jurisdictions’ legal and jurisdictional principles and the principles of active personality.

International law raises two critical questions caused by this section about the extraterritorial application of domestic law through the legislature, the executive, and the judiciary and the potential risk of inter-state conflicts:

1. When a State can control, investigate or conduct its jurisdiction over crimes committed outside its territory; and
2. What should be the solution to judicial overlap between two or more States? If one State does not use law justly but politically and the crime itself could be constructed to repress politically?

Re the first question, the State has the authority to enforce the provisions of extraterritorial jurisdiction under International law. International law allows the States to exercise this jurisdiction and imposes restrictions on such practices. Since some of these legal issues have not been settled in international law, it also raises questions about the exercise of extraterritorial jurisdiction by the States. Re the second question, this jurisdiction has to be exercised reasonably. Even where extraterritorial jurisdiction applies, a State Comity principle[2] may refuse to enforce it based on reasonableness or other relevant policy. Where multiple states are interested in the same issue, they can coordinate their activities to resolve or try to resolve conflicts of jurisdiction depending on the respective laws of their countries.

 

C. Director General’s Power to Remove or Block Data

The Digital Security Act 2018 is officially designed to protect the critical information infrastructures of the State from various types of cyberattacks, but the reality is different. Private cybersecurity of citizens is not its primary goal. The work of providing this security will be done through a Digital Security Agency (hereinafter ‘the agency’) consisting of one Director General and two Directors. The agency will be able to digitally order the removal of any information and access any computer system without prior permission. According to Section 8(1) of the DSA, “If any data-information published or propagated in digital media regarding a subject that comes under the purview of Director-General which threatens the digital security, then the DG can request the Bangladesh Telecommunications and Regulatory Authority (BTRC) to remove or block the said Data-information as appropriate.” Section 8(2) states, “If it is evident to law and order enforcing security force that any data –information published or propagated in digital media hampers the nation or any part therein in terms of nations unity, financial activities, security, defence, religious values, public discipline or incites racism and hatred then law and order enforcing Security force can request BTRC to block or remove the data-information via the Director-General of the Agency.” According to sections 8(1) and 8(2), the BTRC will notify the Government of any request from the Director-General and will immediately remove the data or, as the case may be, block it. It will lead netizens towards blocking, filtering and censorship in the cyberspace of Bangladesh, which is worrying. The citizens of Bangladesh are deeply concerned about the increasing use of sophisticated blocking and filtering mechanisms by the Government in the name of censorship. It is also difficult to measure the extent to which blocking and filtering are necessary under the goals set by the Government due to the lack of transparency and accountability. The past and present governments have failed to publish a list of websites blocked so far and justify such blocks. The task of determining what content should be blocked must be done by a judicial authority or an independent body free from any political, commercial or unwanted influence. However, there is no such provision in the law.

However, that there are apparent exceptions in international law regarding child pornography where blocking is justified—provided that the national law must be specified in this regard and that there be adequate protection to prevent abuse of the law beyond the original purpose, which includes the supervision of an independent and impartial tribunal or body. Nevertheless, human rights defenders and academic activists urge the Government to take steps not only to block websites on child pornography but also to bring to justice those who produce and spread child pornography. Bangladesh is the only country in South Asia to have no autonomous regulatory body in this sector. The Bangladesh Telecommunication Regulatory Commission (BTRC) has the authority to block or filter any website without giving any prior notice or justification to Bangladesh’s citizens. According to Section 46 of the Bangladesh Telecommunications Act 2001, the Government can block any website under the Act to prevent incitement to the commission of any crime. These crimes include state integrity, state security and breach of public order. Section 57 (now repealed by the DSA) of the ICT Act 2006 also provided that websites promoting immorality can be banned. However, international law requires a three-part test to be applied before imposing restrictions on free expression online. Para 69 of the UN Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression states:

“Like all technological inventions, the Internet can be misused to cause harm to others. As with offline content, when a restriction is imposed as an exceptional measure on online content, it must pass a three-part, cumulative test: (1) it must be provided by law, which is clear and accessible to everyone (principles of predictability and transparency); (2) it must pursue one of the purposes set out in article 19, paragraph 3, of the International Covenant on Civil and Political Rights, namely: (i) to protect the rights or reputations of others; (ii) to protect national security or public order, or public health or morals (principle of legitimacy); and (3) it must be proven as necessary and the least restrictive means required to achieve the purported aim (principles of necessity and proportionality). Besides, any legislation restricting the right to freedom of expression must be applied by a body, independent of any political, commercial, or other unwarranted influences, in a manner that is neither arbitrary nor discriminatory. There should also be adequate safeguards against abuse, including the possibility of challenge and remedy against its abusive application.”

Bangladeshi cyber laws impose restrictions simply disrespecting this three-part test. These provisions are often used to suppress legitimate expression and force all community members to resort to voluntary censorship. From abruptly blocking YouTube in early March 2009 to internet access to The Wire a day after it published an article on the role of the country’s military intelligence agency in the illegal pick-up and secret detention of the university academic, Mubashar Hasan, to blocking Sweden-based Netra News in 2020, the Government has carried out several nasty blockings.)

Also, Section 56 of the DSA states, “the Director-General may, if necessary, may delegate any power or responsibility entrusted to him under this Act by written order to any employee of the agency and any other person or a police officer.” The syntax of this section indicates that it is essentially a specialized delegation of power, which will simultaneously create opportunities to demonstrate enormous abuse. Nevertheless, the question remains whether the authorized person or persons have the necessary knowledge or skills to implement the powers that the Director-General will delegate to them? On the one hand, this power is extensive. There is an opportunity to question ‘any other person’ or ‘police officer’, as there is no precedent for specialized training in this regard, and it is also dangerous for citizens.

On the other hand, is ‘any other person’ a government employee or a private employee? If s/he is a private employee, will s/he abide by the general code of conduct of the Government, and if she tries to abide by it, will s/he be able to implement it? At the same time, we note that Section 59 of the Act states that if any ambiguity is noticed while implementing the provisions of this Act, the Government may take necessary measures to remove the difficulties, using an order published in the Official Gazette. In practice, this provision gives the Government free rein to take action that violates the principles of proportionality and necessity and the right to free expression and personal privacy without proper investigation.

Section 60 states, “to fulfil the objectives of this Act, the government, by notification in the Official Gazette, can enact rules for establishing Digital Forensic Lab; supervising of the Digital forensic Lab by The Director General; reviewing traffic data or information and the process of its collection and preservation.; the processing of interference, review or decryption and protection; security of Compromised Information Infrastructure; the process of Regional and International Assistance in terms of Digital security; creation and operation of Emergency Response Teams and the process of coordination of it with other teams; cloud computing, metadata; and security of preserved data.” As we have mentioned earlier, the Government of Bangladesh enacted the Digital Security Rules on 8 March 2020 without the participation of civil society, which showed no sign of protecting the right to freedom of expression, privacy and information of citizens in due process. The Digital Security Rules 2020 have been drafted for digital security agency under Section 60 of this Act. In light of these regulations, the National Computer Incident Response Team (CIRT) will be formed to identify digital threats, prevent and remedy digital attacks, provide guidance, approval, and training on setting up digital forensic labs in different countries to collect digital evidence. The digital evidence offered by the agency will be an essential factor in determining the verdict of the case, which is likely to be misused by the Government to suppress dissents. Since the agency is to be run by government bureaucrats, there are doubts about how the agency will protect the rights and freedoms of citizens established in the light of universal human rights principles.

 

D. The Idea of ​​Vague Cyber Security Breach and Emergency Response Team (ERT)

Section 9 of the Act states that an Emergency Response Team (ERT) should be formed under the Digital ​​Security Agency to ensure cybersecurity. The ERT shall consist of persons specializing in digital security and, if necessary, members of the law enforcement agencies. Section 9(4) states that ERT shall be on duty at all times, in the manner prescribed by the rules. Section 9(5) mentions the functions of the ERT, namely: (a) ensuring the emergency security of critical information infrastructure; (b) taking immediate action to prevent cyber or digital attacks and cyber or digital security breaches; (C) taking necessary steps to prevent possible and impending cyber or digital attacks; (D) to carry out all co-operative activities, including the exchange of information with a similar foreign team or organization, with the approval of the Government, for this Act; and (e) other functions prescribed by the Rules.

It is pretty unclear what ‘cyber or digital security breach’ means here. While an agency is empowered to take immediate remedial action in the event of a ‘cybersecurity breach’, it is likely to be misused for lack of clear and compelling explanation. In this case, any misconduct, crime or wrongdoing by the Government or any part of the Government by a journalist or any other citizen will be curtailed. The opportunity to publish it online will be shortened. It will reduce and, in some cases, obliterate the opportunity to publish any misconduct, crime or wrongdoing of the Government or any part of the Government by journalists or any other citizen. Therefore, clear information and scope of ‘cybersecurity breach’ are required, whereas it is reasonable and desirable to maintain the national and international standards described above.

 

E. Immunity of any Third-Party Service Providers

The ICT Act 2006 exempts intermediaries such as Internet Service Providers (ISPs) or network service providers from all liability. The law states that they will not be liable for any offences committed under this Act using their services and technology. This impunity can only be obtained when they can prove that the crime was committed unknowingly or that the agency paid enough attention to prevent the crime from happening. While such acquittals by ISPs make it technically easier to track down the real cybercriminals, section 79 of the ICT Act states, “For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be liable under this Act, or rules and regulations made thereunder, for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised due diligence to prevent the commission of such offence or contravention.” Similarly, section 38 of the DSA 2018 states, “Any service provider will not be responsible under this Act or any rules enacted under this Act for facilitating access to data-information if he succeeds in proving that the offence or breach was committed without his knowledge or he took all possible steps to stop the commission of the offence.” It is important to note that Section 57 of this Act states that if a person is harmed or is likely to be damaged as a result of an act performed in good faith while executing his duties under the Act, no civil or criminal case or any other legal action shall be taken against any responsible employee or person.

It should be noted that these service providers are usually companies, and paragraph 76 of the UN Freedom of Expression and Internet Report recommends that ‘companies have a responsibility to respect human rights while the State has the primary responsibility to prevent human rights violations. Therefore, it is recommended to the intermediary service providers: to implement the restrictions on these rights only after the judicial intervention; to be transparent to the customer in which the action is being taken and to the wider community where applicable; if possible, precautionary measures should be taken before implementing restrictive measures; and the effect of the restriction should be limited to the relevant content only. Ultimately, the affected user must have the option of appealing through the process provided by the intermediary service provider and the appropriate judicial authority and other effective remedies.’

Internet service providers in Bangladesh regularly receive ‘requests’ to remove and filter various content from the Internet (Freedom on the Net Report 2019). Besides, they have to report traffic and user data to the BTRC every month, which is a clear threat to online expression freedom. These ‘requests’ (orders) made by the concerned authorities are not made out of any legal jurisdiction, therefore, clearly illegal. In addition, to prevent the expression of opinions online, service providers often create hazards. Intermediaries are seen to be playing a role in depriving them of their human rights without judicial intervention. Intermediary agencies should be encouraged to publish detailed information about content removal requests and website accessibility. Also, service providers must take responsibility for creating clear and unambiguous terms of service following international human rights norms and practices and constantly reviewing the impact of their services and technologies on users’ freedom of expression and the consequences of misuse of these services and technologies. So that local service providers do not have such illegal influences for fear of harassment or possible closure. At the same time, it is worth remembering that no local intermediary company in Bangladesh has published any transparency report, which can guarantee other human rights, including freedom of expression online. On the other hand, the transparency report by Google and Facebook still applies to Bangladesh.

 

F. Obscure Criminal Intent, Gross Criminalization and Restrictions on Basic Human Rights

Many sections of this law specify non-bailable offences, which violate the right to liberty and at the same time undermine the presumption of innocence, which is a violation of the right of the accused under international law. Section 53(a) of this Act states that the offenses mentioned in Sections 17, 19, 21, 22, 23, 24, 26, 27, 28, 30, 31, 32, 33 and 34 shall be cognizable and non-bailable; and the offenses mentioned in sections 53(1)(b), 18(1)(b), 20, 25, 29, and 47 shall be non-cognizable and bailable. Article 9 of the ICCPR protects the right to liberty and security of persons and provides that ‘it shall not be a general rule that persons awaiting trial shall be kept in custody.’ At the same time, it is a matter of concern that, under international law and norms, the State can only detain a person pending trial where it is necessary to ensure the accused’s presence in case of trial or preservation of evidence. Provided, in limited circumstances under Article 9(3) of the ICCPR, pre-trial detention is permitted. According to the UN Human Rights Committee, Article 9(3) involves pre-trial detention as an exception when the accused is fugitive or destroys evidence, influences witnesses or escapes State jurisdiction. More worryingly, long-term pre-trial detention puts defendants at risk of torture and other forms of cruel and degrading treatments. In the past, human rights groups have documented that the Digital Security Act 2018 includes pre-trial detention of law enforcement and other forms of torture. In particular, there exists a perception that ‘remand means torture’. Pre-trial detentions must be recognized and determined by statutory criminal law, international human rights law, and the general principles of law. It means that it should be clearly and appropriately prepared so that citizens can control their behaviour accordingly. The State must refrain from restricting other fundamental rights, including freedom of expression, ambiguity, meaninglessness, and broad regulatory language. The United Nations Human Rights Committee stressed that those responsible for enforcing the law should not grant any form of restriction on basic human rights, including freedom of expression. It includes lawmakers and law enforcement agencies that should provide adequate guidance to determine the nature of such restriction.

Section 18(1) of the DSA states, “If any person willingly- illegally enters or help to enter in any computer, computer system or computer network, or illegally enters or helps to enter to commit a crime then the activity of that person will be an offence under the Act.” Illegal or unauthorized access to a computer or computer system or a digital device or system is considered a crime. This provision is also not consistent with the Johannesburg Principles. According to the Johannesburg Principles, if the public interest is more valuable than the offence committed, it will not be considered an offence. However, according to section 18(1), if a person illegally accesses a computer or computer system or digital device or system to know or disclose any information or data, which is more valuable than this crime in the public interest, the person will be considered a criminal. It will discourage knowing and disclosing any crime, corruption or misconduct by the government agencies. Section 35 of the Act states, “if a person assists in committing an offence under this Act, he shall also be considered an offender and shall suffer the punishment prescribed for the original offence.” Since there is no mention of “malicious intent” or “intentional” assistance, any person who, knowingly or unknowingly, assists a criminal in committing an offence under this Act will also be considered a criminal. In this case, many may become unjust victims of this law. For example, suppose a person provides a computer, computer system, or network facility to a criminal out of ignorance or unawareness of the criminal’s motive. In that case, s/he will also be considered as a criminal under this Act and could be punished. At the same time, section 36 of the Act provides for offences by the company: “In case of a company committing an offence under this Act, all such owner, chief executive, director, manager, secretary, shareholder or any other officer or an employee or representative of the company having a direct connection with the offence will be considered as the offender unless he can prove that the offence took place without his knowledge or he took all possible steps to stop the commission of the offence.” The burden of proof is placed on the accused, i.e. the company, contrary to the prevailing general principles of law. On the one hand, a person who is not involved in this crime or who has not enjoyed any economic or other benefits of this crime or who had no malicious intent or cannot stop it from happening could also be victims of this provision. Besides, the scope of the person or persons responsible for the crime has been unnecessarily expanded beyond the scope of legal principles.

Section 21 of the DSA states that any kind of propaganda or propaganda against the Liberation War, the spirit of the Liberation War, the Father of the Nation, the national anthem or the national flag is punishable by imprisonment for a term not exceeding 10 (ten) years, or with fine not exceeding 1 (one) crore taka, or with both. If any person commits it for the second time or repeats, he will be punished with life term imprisonment or a fine not exceeding Tk. 3 (three) crores or with both.

• Firstly, since there is no single authority to interpret or explain the ‘cognition or spirit of the liberation war’ in Bangladesh, there is a possibility that person(s) who possess different views with the Government would be the victims of this law. In particular, those who have different interpretations of the liberation war and its spirit could be the victims of this law.
• Secondly, it is also unethical to determine the liberation war or the liberation war as a single explanation according to the interpretation of any group. Moreover, history is not a matter to be determined by the court. It is the research that creates an understanding of history. If a court determines history, on the one hand, such an independent researcher would be discouraged from researching history. If s/he researched any element of history and came up with an explanation that goes against the Government or any group, s/he could be considered a criminal by this law.
• Thirdly, it should be noted here that Section 21 or any other section of the DSA does not specify the amount of propaganda that would be considered a crime. The definition of the liberation war in Bangladesh is extensive, and the magnitude of history is also very extensive. The court’s determination will also narrow down the various elements of history and the scope of their interpretation. Besides, Article 19(3) of the ICCPR does not include such grounds to limit freedom of expression legitimately. Suppose any propaganda or aiding against the Father of the Nation is considered a crime. In that case, it is equivalent to the blasphemy law, which discourages and prevents any person(s) from holding their own beliefs. Therefore, there is a possibility that this law will deprive the citizens of their freedom of expression. This section has been criminalized in such a way that the conditions are irrationally broad. Its purpose is to prevent a legitimate debate in the public interest, including the history of the country and the role of the Father of the nation. It is inconsistent with international human rights law.

On the other hand, Article 25 states, “If a person transmits any information, whether intentionally or knowingly, through a website or any other digital means, which is offensive, threatening or deceptive to a person, despite being known to be offensive, insulting, humiliating or degrading transmits, publishes or disseminates any information to prove, or discredits, or disseminates any information in full or in part in a distorted form, despite being known to be propaganda or false, to tarnish the image or reputation of the State, or spread confusion, the activity of that person would be a crime. Suppose he commits the offence for the first time. In that case, he shall be punished with imprisonment for a term not exceeding 3 (three) years, or with a fine not exceeding 3 (three) lakhs, or with both, and if he commits it for the second time or recurrently, he shall be punished with imprisonment for a term not exceeding 5 (five) years, or with a fine not exceeding 10 (ten) lakh taka, or with both.”

Again, section 31 states, “If any person intentionally publishes or broadcast any kind of file in any website or digital format which will create hostility, hatred or adversity among people or destroy any communal harmony or create unrest or disorder or deteriorates or threatens to deteriorate law and order then that activity of that person will be considered as an offence. That person will be penalized with imprisonment for a term not exceeding 7 (seven) years or fine, not exceeding Tk. 5 (five) lac or with both. If any person commits the crime for the second time or recurrently commits it, he will be punished with imprisonment for a term not exceeding 10 (ten) years or with a fine not exceeding Tk. 10 (ten) lac or with both.”

Sections 25 and 31 set very general conditions and are not in line with international standards of freedom of expression. If we look at section 31, we see that the primary requirements in section 25 are indefinite, e.g.’ communal harmony’, ‘law and order’ or ‘unrest’. The provision is more regarding the possibility of violence or hostility. It seeks to enforce sanctions under Article 20(2) of the ICCPR, which it has failed to mention because it protects certain parties from incitement to violence or discrimination. We believe that this provision could easily judge dissent or critical views of the journalists, human rights defenders and other publications against the Government. Article 35 states that if a person assists in committing an offence under this Act, the person shall be liable to a similar offence. In aiding and abetting the commission of an offence, a person shall be punished with the penalty prescribed for the original offence. The section does not define what crime can be committed or what action can be considered ‘assistance’.

The DSA provides for a more rigorous punishment for crimes than punishments prescribed in the Bangladesh Penal Code 1860 for more severe and violent crimes. Section 31(1) states, “If any person intentionally publishes or broadcast any kind of file in any website or digital format which will create hostility, hatred or adversity among people or destroy any communal harmony or create unrest or disorder or deteriorates or threatens to deteriorate law and order then that activity of that person will be considered as an offence. If any person commits such a crime, the person will be penalized with imprisonment for a term not exceeding 7 (seven) years or a fine not exceeding Tk. 5 (five) lac or both. If any person commits the crime for the second time or recurrently commits it, he will be punished with imprisonment for a term not exceeding 10(ten) years or with fine not exceeding Tk.10 (ten) lac or with both.”

Moreover, section 35 fails to include intent as an element of any such offence. We believe that section 35, like other sections 21, 25 and 31, is too broad and can criminalize general internet users. We believe that these provisions could easily be used to prosecute journalists, human rights defenders, and others in the publishing industry who are involved in reviewing and commenting on government activities.

Section 32 states, “If any person commits or aids and abets in committing an offence under Official Secrets Act, 1923 (Act No XIX of 1923) through the computer, digital device, computer network, digital network or any other digital medium then he will be punished to a term of imprisonment not exceeding 14(fourteen) years or with fine not exceeding Tk.25 (Twenty Five) Lac or with both. If any person commits such offence for the second time or recurrently commits it, he will be punished with life imprisonment or a fine not exceeding Tk. 1(one) crore or with both.” Suppose a person commits or discloses an offence committed by him in the personal sphere of another person. In that case, it also has the potential to be considered an offence under this provision. Besides, this provision finds not only the capture of scenes as a crime but also its disclosure. If a journalist or media publishes such a scene, it can also be considered a crime. In this case, the media or staff will protect journalism’s ethics and be discouraged from publishing scenes of crimes committed in one’s sphere. At the same time, if any news worker or media publishes such, he will be charged as a criminal. However, if a person captures his or her personal view with the consent of another person, but without the permission of that person or to blackmail that person or for any other nefarious purpose, publishes such scene, the person is not mentioned as a criminal. At present, this kind of trend is much more noticeable. In particular, it has taken a horrific form in the abuse of women and children. Therefore, even if a person consents to another person to record an intimate scene, if the accused person captures or discloses the location in any other way without permission or without informing the other person, the person may remain outside legal purview on the pretext of consent.

On the other hand, Section 4 of the Public Interest Disclosure (Protection) Act, 2011 states, “any discloser of information may, in reasonable consideration, disclose accurate information relating to the public interest.” Under Section 5 of this Act, the publisher of accurate information related to the public interest cannot be a victim of criminal or civil case or departmental case, demotion, harassing transfer or compulsory retirement, taking any other departmental action and discriminatory behaviour etc. and the identity of the informant must be kept secret. This section of the Act is in direct conflict with each of the above decisions of the public bodies in relation to the Public-Interest Information Disclosure Act (provide protection) 2011 and is also a punishable offence under Section 9 of this Act. General confidentiality should not be compromised by disclosing the correct information in the public interest and protecting the right of the publisher to express views. In particular, the scope of any legislation in this field should not be so broad as to impede journalism, academic research, and other legitimate activities.

Article 28(1) states, “If any person or group intentionally or knowingly to hurt religious sentiments or values or to provoke publish or broadcast anything by means of any website or any electronic format which hurts religious sentiment or values then such activity of that person will be considered an offence. If any person commits such offence, the person will be sentenced to a term of imprisonment not exceeding 7 (seven) years or a fine not exceeding 10 (ten) lac or both. If any person commits it the second time or repeatedly, he will be punished with imprisonment not exceeding 10 (ten) years or fine not exceeding 20 (twenty) lac taka or both.” Article 19(3) of the ICCPR guarantees the protection of public morals. However, the public morality of a multi-ethnic and multi-cultural society like Bangladesh could not be determined by any single nation or culture. In that case, the culture or morale of other anthropological groups outside the primary culture may be different. GC34 of the Human Rights Committee on Article 19 of the ICCPR explains that the process or manner of protecting public morale cannot preserve the confidentiality of any single race, religion or group.

Public morality consists of the culture, beliefs or practices of all races, religions or groups in the State. Section 28(1) of DSA does not define crime in such a way. Thus, it will be an obstacle to freedom of expression or freedom of religious belief in many cases. Again, religious prejudice or injustice, or the review or criticism of religion, will threaten those who express opinions on various online networks. Protecting the religious feelings of a single person is not the same as defending public order or morals. This is explained in Article 19(3) of the ICCPR, which deals with religious freedom. So, on the one hand, one has to protect one’s freedom of religion and belief; on the other hand, one has to ensure the right to review one’s religious differences, beliefs, or religions. At the same time, there is a responsibility to prevent religious hatred. So, such a definition of the crime would be a threat to many, especially those who hold a position or belief that is different from the mainstream religions or who express an opinion on a religious or belief issue. So, the reference here to ‘religious sentiments or attacks on religious values’ is likely to threaten the culture or religion and beliefs of other races or groups outside of the primary cultures. Such a provision is also insulting to these races and communities.

Detainments and arrests related to ‘defamation’ through social media are primarily considered criminal offences. However, in this case, we would like to remind the Government as human rights activists that we think all criminal defamation laws should be repealed and replaced because it violates academic freedom and freedom of opinion. The conflict with international principles of freedom of expression and academic freedom is used to exert political pressure. There is also a wide discrepancy between the online and offline commission of defamation and its respective punishments. Section 29(1) states, “If a person commits an offence of publication or broadcast defamatory information as described in section 499 of the Penal Code (Act XLV of 1860) in any website or any other electronic format then he will be sentenced to a term of imprisonment not exceeding 3(Three) years or fine not exceeding Tk. 5 (Five) lac or both. If a person commits the offence for the second time or repeats, he will be sentenced to a term of imprisonment not exceeding 5(Five) years or fine not exceeding Tk.10 (Ten) lac or both.” Section 499 of the Penal Code sets out what constitutes defamation. Section 500 of the Penal Code describes the punishment for defamation, which carries a maximum penalty of two years imprisonment or a fine or both. Sections 501 and 502 illustrate the printing or engraving of defamatory material and its penalties. If we review the above provisions of the two laws, we can see different punishments for online and offline defamations. Proportionality is a fundamental principle of international law when it comes to discipline. Every State must ensure that the fines and penalties imposed by law, especially those involving deprivation of freedom of expression, are proportionate to the crime in question. Principle 24 of Johannesburg Principles on National Security, Freedom of Expression and Access to Information, for example, states, “A person, media outlet, political or other organization may not be subject to such sanctions, restraints or penalties for a security-related crime involving freedom of expression or information that are disproportionate to the seriousness of the actual crime.” Similarly, Principles 46 of the Global Principles on National Security and Right to Information (Tshwane Principles) states, “Criminal penalties for the unauthorized disclosure of information to the public or persons should be proportional to the harm caused.” The UN Special Rapporteur Frank La Rue recommends promoting and protecting the right to freedom of opinion and expression that defamation should be decriminalized and not be applied in criticism of public officials or abstract concepts such as religion, belief systems, or institutions.

Article 19 of the UDHR, which declares the protection of freedom of expression, at the same time sets out three general principles for maintaining the proper balance of human rights with the safety of the individual’s reputation. These are widely recognized in international human rights law and the domestic laws of many countries worldwide. This premise is based on the argument that freedom of expression must be guaranteed in a democratic society. It may be subject to only minor restrictions necessary to protect the person’s reputation and other legitimate interests. In particular, these principles set the standard for safeguarding reputation by adapting the legal provisions to respect freedom of expression. The scope of these principles is limited to the question of drawing a proper balance between freedom of expression and injury to reputation.

Defamation through email or other means is a punishable offence under sections 500, 501 and 502 of the Penal Code, which carries a penalty of up to two years imprisonment or a fine or both. Defamation can be a civil wrong as well as a criminal offence in the legal system of Bangladesh. However, international human rights law does not consider defamation a criminal offence in any way. While the Constitution of Bangladesh declares the right to freedom of expression subject to reasonable restrictions, it has provided individual citizens and the media with freedom of expression through various national security laws, sedition and criminal defamation offences, which conflict with each other. In December 2009, the Cabinet approved an amendment to the Code Criminal Procedure 1898, stating that an editor, publisher, journalist or author cannot be arrested if a defamation suit is filed against a textual publication. However, the reform proposal has not yet been finalized, with journalists still being detained on defamation charges.

After all, the Constitution of Bangladesh guarantees the ‘freedom of thought and conscience and the ‘right to freedom of speech and expression’. Nevertheless, this assurance will be ‘subject to reasonable restrictions imposed by law on the security of the state, friendly relations with foreign countries, in the interests of public order, decency and morality or on incitement to contempt of court, defamation or crime.’ All government agencies in Bangladesh, whether military or civilian, have been interpreting this ‘reasonable restriction’ according to their advantage. The UN Human Rights Council, international, regional and national human rights courts in many countries have decided that any restrictions on freedom of expression or any electronic form of communication based on the content or the Internet must be ‘provided by law, legitimately necessary and proportionate’ (the three-part test). Therefore, according to this three-part test, the Government of Bangladesh must uphold and protect the freedom of expression online. If any restrictions are to be imposed, the Government must ensure that they are consistent with international human rights law and complies with international law-making standards.

 

Concluding Remarks: What Citizens Required to Repeal the Act 

On 19 January 2020, the lawyers and teachers filed a writ challenging the four sections (Sections 25, 28, 29 and 31) of the Digital Security Act 2018. On 24 February 2020, The High Court bench comprising Justice Sheikh Hassan Arif and Justice Md Mahmud Hasan Talukder has issued a rule asking why sections 25 and 31 should not be declared illegal and unconstitutional and asked the law secretary, information secretary and other concerned people to respond to the rule within four weeks (Samakal, 24 February 2020). However, even after more than a year have passed, the answer to the rule has not yet been given to the High Court, and it is not known when it will be delivered in this pandemic situation.

In this reality, there is a renewed demand from the citizens for the complete repeal of this repressive DSA, mainly for three reasons:

Firstly, the law’s drafting was not discussed in a necessary, participatory, adequate and appropriate manner with the citizens during the enactment. Citizens have expressed concern over the draft law on their initiative. Before the law was passed, the Prime Minister, law minister, and information technology minister said the law has not meant to be applied against journalists and the media. However, according to human rights groups, at least 100 journalists have been indicted in about 50 cases between 2019 and May 2021. About 40 of the 91 accused journalists have been arrested. It is not known precisely how many people have been granted bail in these cases.

Secondly, almost every section of this law, from the definition to the devolution in various chapters, is inconsistent with national and international human rights principles, ethics and standards and can be easily used for distressing people. Almost every case filed using the law would infringe the freedom of thought, conscience and expression of the citizens and the media, which has already been observed in hundreds of cases.

Thirdly, the people have the right to express their views on the recent failures in health management, rampant corruption in various ministries, especially lack of balanced planning by the Ministry of Health, lack of coordination of good governance, confusing position and corruption. Cases have been filed against people of various walks of life, including journalists, under the DSA to disclose information on irregularities and corruption in the distribution of relief, which is alarming. The law is being used to deprive citizens of digital security and protection and is infringing civil rights and constitutional protections.

Many of the sections of the Digital Security Act 2018, as discussed above, show signs of various forms of militarization or harassing and deterrent realities, which will quickly create an opportunity to violate international and national legal principles and policies and impend the rights of citizens. With this perspective, the Digital Security Act should be repealed entirely. The State has to repeal it because it is essentially beyond any reform. At the same time, we call for wide-ranging discussions with appropriate individuals and civil society representatives to expedite the cancellation process, to expand and realize international and national norms and policies, and protect freedom of expression and privacy of citizens, and above all, to device the dream of a digital Bangladesh. In this context, the Special Rapporteur Frank la Rue’s report could play a significant role in helping Bangladesh Government move forward in this digital age to advance human rights and freedom of speech, privacy rights and in assisting human rights activists in overcoming challenges and legitimate barriers to human rights and the Internet.

 

Image Cartoon by Mehedi Haque

 

[1] This is an Act by the Government of Bangladesh to implement and enforce Article 3 of the Constitution of Bangladesh.

[2] The legal principle that political entities (such as states, nations, or courts from different jurisdictions) will mutually recognize each other’s legislative, executive, and judicial acts.

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