Updated: Jun 2
In October 2018, the Parliament of Bangladesh passed the Digital Security Act following the repeal of the Information and Communication Technology Act, 2006 which was frequently used to suppress the right to freedom of expression in Bangladesh. The present act is even more oppressive than the repealed law according to Amnesty International. It can used to terrify and detain reporters and social media users, stifle opposition and perform intrusive forms of inspection. It is in contradiction to international law and standards. It is also in violation of human rights as it prohibits the freedom of expression. Journalists, cartoonists, writers and free thinkers have been arrested under this Act for making “offensive” social media posts and nearly 2,000 cases have been filed under it according to the data from Bangladesh’s Cyber Crime Tribunal. Thus, civil society, journalists and legal activists of Bangladesh have been protesting ever since the law has been passed.
The article explores how the Digital Security Act limits the right of free speech and expression guaranteed by the international law and government of Bangladesh. It discusses the consequences of its application and provides recommendations for its review.
Attack on Freedom of Expression in Bangladesh
Article 19 of the Universal Declaration of Human Rights (UDHR) protects the right to freedom of expression. International Covenant of Civil and Political Rights (ICCPR) was ratified by Bangladesh in 2000. Thus, it is legally bound to ensure its right to freedom of expression mentioned in Article 19 of ICCPR. It has been affirmed by the UN Human Rights Committee that the right includes the freedom of expressing thoughts and opinions which the other people may find derogatory. Article 39 of the Constitution of People’s Republic of Bangladesh secures the right to freedom of speech and expression along with freedom of press to every citizen. It is one of their fundamental rights. The provisions of the Digital Security Act are in violation to the human rights despite the government having promised to secure the right to freedom of expression. According to international law, independent regulatory bodies should be appointed in the areas concerning freedom of expression but the Digital Security Agency (DSA) is controlled and appointed by the government. It is an executive body whose purpose is to fulfil the objectives of the act. The law is not made to protect the citizens of Bangladesh but to serve the interests of the ruling party.
Suggestions and Recommendations
Bangladesh performed poorly in the Global Cyber Security Index in 2015 and was ranked 112 out of 139 nations on a Network Readiness Index according to a World Economic Forum report in 2016. The Information Communication Technology Act of 2006, was held to be insufficient in terms of addressing digital security and data protection concerns like posting offensive content, cyber- terrorism and defamation. Thus, the Digital Security Act was passed to avoid offences performed on digital platforms and ensure safety. It is worded vaguely and several definitions including data storage, critical information infrastructure, digital security, illegal entrance, cognition of Liberation War and service provider are overly broad. They must be clarified or narrowed according to the international standards. The Act has extraterritorial applicability. The provisions of the Act will apply even if any person commits any offence, punishable under this Act, from outside of Bangladesh.
Section 8 provides the Digital Security Agency with a power to order preventive measures. Its Director General can ask the Bangladesh Telecommunications and Regulatory Authority (BTRC) to remove or block any data information online that seems to threaten digital security. It restricts freedom of expression beyond what is permissible under international standards of freedom of expression. It is expressed in broad and vague terms while mentioning nation’s unity, public discipline and religious values. Thus, any information which gets in the way of any action or policy of the government can be prohibited through a blocking order. This section should be entirely repealed as it provides extensive powers to DSA, a government agency, instead of an independent body or court. It criminalises engaging in “propaganda” or “campaign” against the “spirit” of the 1971 Bangladeshi war of independence, the national anthem, the flag and the nation’s founder Sheikh Mujibur Rahman, father of the current prime minister. The Act does not define what constitutes a propaganda or a campaign. The offence is worded in broad terms. It would forbid legitimate debate on affairs of public interest. Thus, it is contradictory with international human rights law and should be repealed. The publication or broadcast of any information that hurts religious feelings of another is also stated as an offence. Computer related offences should be reviewed as they impose harsher sentences for the online version of an offline offence. This is unjustified as it was recognized by the UN Human Rights Council (HRC) in 2012 that the same rights that people have offline must be also protected online. They should be treated equally. The act authorizes heavy fines along with imprisonment as punishment for disagreement. The non-bailable provisions have made the law unfair. The police are given complete power to detain anyone suspicious of committing a crime on digital media, without a warrant. Thus, the act must be reviewed and amended in accordance with international law and standards.
Protests and Consequences
The international community including the UN high commissioner for human rights, UN independent experts, the European Union as well as journalists in Bangladesh have constantly condemned the Digital Security Act for oppressing free speech and breaching international law. In May 2020, 311 members of Bangladesh civil society issued a joint statement calling for the government to release the people detained under the law. It was stated in a report by the Asian Human Rights Commission that 138 people including journalists, students and political activists were arrested in 2020 under this act for criticizing the government. A detailed analysis of 197 cases of 2020 by Prothom Alo found that they were filed either by the leaders or activists of the ruling party or police in 80 percent of the cases. Journalists were the main target. They were charged for news items related to criticism of COVID-19 treatment arrangements and actions of local MPs. Cases were also filed for updating Facebook statuses on prevailing topics and criticism of local government representatives. Thus, the provisions of the Act are vague and the law is mainly used to stifle dissent. According to Dhaka Tribune, Mushtaq Ahmed was arrested under the Digital Security Act by an elite anti-crime and anti-terrorism unit of the Bangladesh Police called the Rapid Action Battalion for his ‘anti-government’ social media posts which criticized the government’s handling of the pandemic. He was denied bail six times and eventually died in jail nine months after his arrest. His death led to protests in Dhaka and 35 people were injured in a conflict with the police and seven people were arrested on the spot. It was alleged that the police charged them with batons and used tear gas to stop the protests. A quick, transparent and independent investigation into the circumstances of Ahmed’s death was called on the government of Bangladesh from 13 ambassadors and high commissioners from countries of Organisation for Economic Co-operation and Development (OECD) along with the UN High Commissioner for Human Rights.
Ahmed Kabir Kishore was held for 10 months of pre-trial detention under digital security law after he drew cartoons which mocked a powerful businessman close to the government. He was charged for creating confusion over the government’s handling of the coronavirus pandemic and contributing to the deterioration of law and order in the country. On March 3, 2002 the High Court of Bangladesh granted him bail on health grounds. It is alleged that he was physically tortured in custody. His bail led to protests in streets and social media which demanded for the annulment of the act.
Ahmed and Kishore are a live demonstration to Bangladesh about the price of dissidence. These incidents create a sense of fear and helplessness among people. They reignited the concerns of the Digital Security Act. The strategy of the government is to create examples of severe punishment for dissents at the highest levels and to show opposition even in the face of international criticism. Thus, the protests are important.
Freedom of expression is necessary for establishing a culture of democracy. It creates a free environment of ideas and protects us from the unjustified control of government and raise our concerns. The criticism of government should not be treated as a criminal offence as it might lead to discouragement of expressions on matters of public concern. Regulations and restrictions should be imposed in a neutral manner to avoid biases in free speech. The right to freedom of speech and expression should only be limited if they lead to imminent violence or riots. The Digital Security Act arbitrarily places the vital cyber security provisions such as digital fraud or hacking with provisions that lack justification to unreasonably limit freedom of expression. A review and amendment us required to make the law compatible with the international law and conventions on human rights.
Title Image: The Daily Star
This article is written by Sneha Singh. Sneha is a second-year BA. LLB (Hons.) student of Rajiv Gandhi National University of Law, Punjab.