There must be good reasons why people got nervy at the passage of a new piece of law, meant for fighting cybercrimes. While government boasts the Digital Security Act 2018 as to be first of its kind a law ever passed anywhere in the world, members of the civil society and media professionals at home and abroad fear the law, provided it gets presidential consent, would muffle the freedom of expression. And that’s why after the act’s passage by the parliament on September 19, petitions poured in to the good offices of the president seeking a review of the act before he gives the final consent.
A general sense of fear has been very much there since the days of perceived ‘misuse’ and over-exploitation of much talked-about Section 57 of the ICT Act. In state’s pursuit to chase cyber offenders, it happened many a time in the past that innocent people made victims of cases filed under the Section 57. It is evident from Dhaka’s Cyber Tribunal’s statistics that in between 2013 and late last year, police gave final reports in 763 cases filed under Section 57, meaning either the plaintiffs filed those cases to harass people, hush up free voices, muffle dissent or they withdrew the cases after their initial purpose of harassing the ‘victims’ had been served or the law enforcers failed proving the charges. In all these instances, many people that include general citizens and journalists alike had had the initial endurance of trauma and harassment till the time they were finally let off.
The ICT Act, passed in 2006, was amended twice – first in 2009 and then again in 2013. The last amendment raised the maximum jail term for violation of Section 57 from 10 to 14 years, and made the offences non-bailable. From the very outset, people, jurists, free thinkers were critical against those harsher clauses incorporated in ICT Act through the 2013 amendment. Now, one needs to revisit some incidents that took place over the past few years and some developments in recent weeks to understand what prompted the government to go for Digital Security Act 2018 - in its current form and time. Misuse of digital platforms have been blamed for violent incidents of Ramu, Nasirnagar - which went nasty when a section of people with ulterior motives instigated violence targeting the minority and marginalised communities in the society. On the other hand there were times when individuals and groups used digital devices and social media platforms to express dissenters on various socio-economic and political issues. While a large part of those were genuine dissents, some might have been misguided, ill-motivated.
To response these situations government had a tool in hand in the form of a 2006 law - ICT Act. But overtime government made the efficacy of the law largely dented due to gross misuse of a notorious section of this law - that is Section 57. This year alone at least 90 people were made accused in cases filed under Section 57 and in most cases dissenting voice, journalists, writers, intellectuals are made victims The Digital Security Act 2018 comes as an answer to government’s move of cancelling Section 57 amidst public outcry.
Interestingly, in the process of finalising the Digital Security Act 2018, government apparently pursued a democratic process of taking the stakeholders views. In series of meetings held in run up to the law formulation, government listened to the views of journalists and associations representing media professionals. But at the end it didn’t accommodate any of their main recommendations, neither addressed their concerns and last but not the least, government went ahead to pass it hurriedly canceling the last round of promised meeting with the stakeholders. The media representatives, who have been consulted in this exercise, were of the impression and expectation that the concerned government authorities would share with them the final version after accommodating their recommendations into the Digital Security Act prior its passage by the parliament. But that never happened.
There are a number of good reasons why the journalists, national and international right bodies and civil society members on behalf of the general people are raising a serious concern about the Digital Security Act 2018. In recent months many government functionaries successfully managed taming public outcry over Section 57 by saying that this Section of the ICT Act would be abolished. But to the utter surprise of many, the Section 57 has practically been repackaged in the Digital Security Act 2018. Critics say the new law is not acceptable because it gives power to law enforcers to block, remove views expressed by individuals from their sites arbitrarily without any judicial oversight. They say it’s not acceptable because it gives arbitrary power to law enforcers to arrest private citizens without warrant, prior sanction from the proposed digital commission. Most surprisingly the clause on law enforcers’ taking prior approval was there even in the law’s final version but was dropped at the last moment when the bill was passed in the parliament.
Given the notoriety of police in Bangladesh in arresting citizens in fabricated cases (take note of Bangladesh Jatri Kalyan Samity Secretary General Mozammel Hoque Chowdhury’s case as a most recent example), people have all the good reasons to feel intimidated in the passage of the Digital Security Act 2018. The very idea of packaging two clashing thoughts (one that tends to suppress all information and the other that advocates free flow of information) in one piece of legislature has perplexed the free thinkers most. In the Digital Security Act, the concepts of Right to Information Act (RTI) and the archaic Official Secrets Act (OSA) have been blended quite puzzlingly. World has come a long way to information age where the British colonial era law 95-year old OSA, meant for keeping information secret, should have now practically no value but it is kept there in one of the new law’s section that goes counter to the basic premise of 2009 law RTI. It remains a subject of interpretation that which one (OSA or RTI) will prevail upon which other, as and when situation arises.
Some of the reactions centred on Section 32 of the new law, amid concerns that it would deter investigative journalists from doing their job. Any ‘illegal’ entry to government, semi-government or autonomous organisations and ‘secret’ recording of information and data on any electronic device carry as many as 14 years in jail, or a fine of Tk 25 lakh, or both, according to the law. As per the Digital Security Act a digital security agency can ask the Bangladesh Telecommunication Regulatory Commission to block or remove any information in the media, deemed as a ‘threat to digital security’. Question remains who’ll determine what a ‘threat’ is and what’s not. A Chittagong University teacher landed in jail just the other day for his alleged demeaning social media post but the case’s plaintiffs – who belonged to a student front’s political unit that abolished their CU chapter for nearly two years for infighting – remained scot-free even after making the teacher leave campus along with his family amidst intense intimidation.
Selective application of laws made many jittery. They have seen how some people were caught in charge of rumour mongering or ‘improper’ social media postings during some of the recent social movements centring ‘quota reform’ and ‘safe road’ while some others, who literally beat up peaceful protestors and photographed and identified in media footages managed remaining out of the police dragnet. A Dhaka University student who was tortured to the extent of losing sight of one his eyes had to leave for Malaysia to pursue higher studies amidst growing insecurity but those who made the barbaric attack on him, according to newspaper reports, are staying safe, untouched in the varsity dormitories.
On September 25, Human Rights Watch said the Digital Security Act, which replaces the much-criticised Information and Communication Technology Act (ICT), retains the most problematic provisions of that law and adds more provisions criminalising peaceful speech.“The new Digital Security Act is a tool ripe for abuse and a clear violation of the country’s obligations under international law to protect free speech,” said Brad Adams, Asia director of the organisation. Section 21 authorises sentences of up to 14 years in prison for spreading “propaganda and campaign against liberation war of Bangladesh or spirit of the liberation war or Father of the Nation.” The United Nations Human Rights Committee, the independent expert body that monitors compliance with the International Covenant on Civil and Political Rights (ICCPR), to which Bangladesh is a party, has expressly stated laws that penalise the expression of opinions about historical facts are incompatible with a country’s obligations to respect freedom of opinion and expression, noted HRW. Section 25(a) authorises sentences of up to three years for publishing information that is “aggressive or frightening” – broad terms not defined in the law. The use of such vague terms violates the requirement that laws restricting speech be formulated with sufficient precision to make clear what speech would violate the law, claims HRW.
According to Amnesty International, “This law imposes dangerous restrictions on freedom of expression.” In a statement, Amnesty’s South Asia campaigner Saad Hammadi said instead of learning from the lessons of the past, the law seeks to repeat them. In a letter to Bangladesh’s president, the Committee to Protect Journalists (CPJ) urged him to return it for review. CPJ is concerned that this legislation, if allowed to become law, would violate constitutional guarantees of freedom of the press, and would create extensive legal dangers for journalists in the normal course of carrying out their professional activities. One of the most worrisome provisions of the Digital Security Act is an amendment added at the last minute in Section 43, which will allow police to arrest or search individuals without a warrant, observed CPJ. In addition, the Digital Security Act includes problematic aspects of Section 57 of the Information and Communications Technology Act, despite public promises by government ministers to eliminate it. Section 57 has been repeatedly used to imprison journalists in defamation cases, noted CPJ.
Editors’ Council, a forum of newspaper editors in Bangladesh, expressed deep regret at the passage of the legislature in its current form, largely ignoring the recommendations put forward by media community in consultation exercises in run up to the formulation of the act. On this Saturday, journalists at the call of the Editors’ Council are set to protest against the Digital Security Act 2018 by forming a human chain at 11 in the morning in front of the Jatiya Press Club. Even before its passage, when the concerned scrutiny committee placed the draft back to the parliamentary few days back, the Editors’ Council had pleaded for not passing it in its current form. It recalled that it had a meeting with the law minister in the presence of the ICT minister during which both ministers assured the editors of taking measures to mitigate their concerns.
“We also recall with gratitude that the aforementioned JS Standing Committee met with the representatives of Sampadak Parishad, BFUJ and ATCO over two sittings during which we showed how the draft law stifles media freedom, a prerequisite for any democracy. The JS committee was supposed to meet with us once more before finalising its report but the meeting never took place,” read the statement issued by the Editors’ Council then. It rejected the JS body report and the draft Digital Act because: a) It is opposed to the guarantees of freedom of expression and freedom of the press by the Constitution in Articles 39(2) A and B; b) It is opposed to the idea of freedom of thoughts and independence of media as enshrined in the spirit of our Liberation War; c) It is opposed to the basic practice of democracy that Bangladesh has always fought and stood for; and d) It is opposed to the fundamental principles of journalism and freedom of the media that journalists in Bangladesh have struggled for.
ARTICLE 19, a human rights organization, on September 20 urged the government to review the Digital Security Act (DSA) prior its presidential approval. In a statement, Article 19 said, “Prior to the DSA receiving presidential approval, we urge the government to review the DSA, with the full and effective participation of civil society, and in particular, freedom of expression organisations, to ensure that digital rights are fully protected”. Section 57 of the ICT Act has frequently been applied to silence journalists and media workers, activists, editors, teachers, social media users and public thinkers – over 90 cases have been brought since January 2018, claimed the organization. The Digital Security Act (DSA), which has been approved by the Parliament earlier and awaits Presidential approval, stood to repeal Section 57 of the ICT Act, its most problematic elements will be replicated, claimed the statement. “The DSA promises to impose far-reaching restrictions on online expression, affecting all Internet users in Bangladesh, broadly criminalising and imposing wholly disproportionate punitive measures for expression lawful under international law. New, and overbroad powers to block and remove online content without judicial oversight, are also of deep concern”, it said. ARTICLE 19 strongly urged the government of Bangladesh to take all the necessary steps to protect and promote freedom of expression both in law and in practice in the country, by implementing all UPR recommendations related to these rights in consultation with civil society.