In February 2021, a tweet by pop star Rihanna sparked widespread condemnation of Indian Prime Minister Narendra Modi's handling of massive farmer protests near the capital New Delhi, and served to sour an already troubled relationship between the Indian government and Twitter.

Moving to contain the backlash, officials hit Twitter with multiple injunctions to block hundreds of tweets critical of the government. Twitter complied with some and resisted others. Relations between Twitter and the Modi government have gone downhill ever since. At the heart of the standoff was a sweeping new internet law (The Indian IT Rule 2021) that puts digital platforms like Twitter and Facebook under direct government oversight.

Officials say the rules are needed to quell misinformation and hate speech and to give users more power to flag objectionable content. Police have raided Twitter's offices and have accused its India chief, Manish Maheshwari, of spreading "communal hatred" and "hurting the sentiments of Indians." At one stage, Maheshwari refused to submit to questioning unless police promised not to arrest him, and eventually he had to leave the country.

The company released a transparency report showing India had submitted most government information requests - legal demands for account information - to Twitter. It accounted for a quarter of worldwide requests in July-December of 2020.

The new rules, in the works for years and announced in February, apply to social media companies, streaming platforms, and digital news publishers. They make it easier for the government to order social media platforms with over 5 million users to take down content that is deemed unlawful. Individuals now can request that companies remove material. If a government ministry flags content as illegal or harmful it must be removed within 36 hours. Noncompliance could lead to criminal prosecutions.

Tech companies also must assign staff to answer complaints from users, respond to government requests and ensure overall compliance with the rules. Twitter missed a three-month deadline in May, drawing a strong rebuke from the Delhi High Court. Eventually, after months of haggling with the government, it appointed all three officers as required.

"Twitter continues to make every effort to comply with the new IT Rules 2021. We have kept the Government of India apprised of the progress at every step of the process," the company said in a statement to the Associated Press. The Internet Freedom Foundation (IFF)on the other hand, says the rules will lead to numerous cases against internet platforms and deter people from using them freely, leading to self-censorship. Many other critics say the Indian government is imposing what they call a climate of "digital authoritarianism."

Digital Authoritarianism?

On 3rd February 2022, the Bangladesh Telecom Regulatory Commission (BTRC) published "The Regulation for Digital, Social Media and OTT Platforms, 2021" ("Bangladesh Draft Regulation") and invited comments. The IFF, despite being based in India, was one of the organisations that took the initiative to send in their observations, which it did in the form of a report.

"Our rationale behind sending the comments was that there are many similarities between the Bangladesh Draft Regulation and Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ("Indian IT Rules"). Since we have extensively worked on the Indian IT Rules since their notification in 2021 (in the form of public advocacy, representations and legal support), we provided insights into India's experience with these rules. We hope that the report is of assistance to the BTRC as they contemplate regulation of digital, social media and OTT platforms," the IFF stated.

The Indian IT Rules were notified by the Government of India on 25th February 2021. The rules comprise three parts. Part I of the Rules lays down the definitions of terms. Part II imposes several obligations on social media intermediaries and is similar to Part II of the Bangladesh Draft Regulation, which does the same, the IFF says in its report.

Part-III of the Indian IT Rules regulates digital news media and OTT platforms, via a Code of Ethics and a 3-tier grievance redressal mechanism headed by the Ministry of Information and Broadcasting. This Part is similar to Part III of the Bangladesh Draft Regulation. The only difference between the two is that the latter does not already contain a Code of Ethics, and instead empowers the Ministry of Information of Bangladesh to publish a Code at a later time.

Since its notification, Indian IT Rules have faced criticism from social media users, members of the civil society, press and intermediaries, and even by UN Special Rapporteurs. The criticism is on the grounds that these rules perversely incentivise intermediaries to censor otherwise lawful content lest they risk losing safe harbour; they undermine end-to-end encryption which is essential for protecting the privacy of users on the internet; and alter how publishers of news operate over the internet by increasing governmental oversight. Their legality has been challenged by at least 17 different entities/individuals in 6 different High Courts across the country.

Subsequently, three of those High Courts have sided with the petitioners. The Kerala High Court was the first to grant interim relief, issuing an order restraining coercive action against the Petitioner, LiveLaw Media, under Part III of the Indian IT Rules. Subsequently, the Bombay High Court also issued an interim order, and stayed the operation of the Code of Ethics and the 3-tier grievance redressal mechanism over digital news media and OTT platforms. The Bombay High Court observed that the Rules would make people "feel suffocated to exercise their right of freedom of speech and expression, if they are made to live in present times of content regulation on the internet with the Code of Ethics hanging over their head as the Sword of Damocles."

This order was affirmed by the Madras High Court, which also passed directions regarding Part II of the Indian IT Rules which regulates social media intermediaries. The Madras High Court found that "an oversight mechanism to control the media may rob the media of its independence and the fourth pillar, so to say, of democracy may not at all be there." On social media, the Madras HC also observed that "Article 19(1)(a) may be infringed in how the Rules may be coercively applied to intermediaries."

Even though the legality of the Indian IT Rules has not finally been decided, the decisions mentioned above are helpful in understanding the impact these rules have on freedom of speech and expression, the right to privacy, and how they have been viewed by constitutional courts in India.

Speaking at a webinar organised by Moulik Odhikar Surokkha Committee (Fundamental Rights Protection Committee, or MOSC), a platform for human rights activists, renowned lawyer Barrister Sara Hossain said the guideline will not only muzzle the voices of journalists and media professionals, but also citizen journalists, as well as social and political commentators.

"If the law passes, our progress on human rights, sustainable development goals, and freedom of expression fronts might be reversed. This is why the government needs to sit with all the stakeholders including human rights defenders before finalising it," she said.

The draft needs some major revisions, she said, adding that the regulation also appears to violate the rights of people who are dissenting voices within a religion, as well as those belonging to religious minorities.

The Internet Society, an American nonprofit advocacy organisation founded in 1992 with local chapters around the world, also did an assessment. It used the Internet Impact Assessment Toolkit (IIAT) to assess how the draft regulation may affect Internet development in Bangladesh, and more broadly, the health of the global Internet. It found that the provisions outlined in the draft regulation, specifically the stringent and overly broad requirements for Internet intermediaries, including infrastructure providers, could have serious repercussions on the usefulness of the Internet for Bangladesh and its people, endangering the very sectors that the regulation seeks to foster and protect. If enacted in its current form, the regulation could curtail the country's digital transformation without imparting clear benefits for its economy and society.

In order to ensure that Bangladesh continues to benefit from the Internet, the Internet Society said that "future iterations of the regulation must align its provisions with the principles that make the Internet an open, globally connected, secure and trustworthy resource for all."

Angle of attack

In June 2016, following prolonged talks with the Bangladesh government, Facebook, Google and Microsoft all agreed to do more to remove 'inappropriate content' from the internet. This was announced by the then-State Minister for Telecoms, Tarana Halim, who said: "After intense discussion with Facebook, Google and Microsoft, it has been agreed that they will respond to requests within 48 hours".

The agreement was announced just weeks after major tech companies agreed to a new code of conduct to combat online hate speech.

In 2019, we learned that the government had established "wider control over online content" through a state of the art technology, installed at the cost of Tk 159 crore, enabling the government to block any online content, including Facebook page or account in just three minutes. The system was installed under the Cyber Threat Detection and Response project of the department of telecommunications launched in July, 2017.

In February 2022, a delegation from Facebook said the social media platform will look at Bangladesh-related issues in the light of the country's laws, tradition, culture, values and rules and regulations as much as possible.

Facebook also said it will step up responding to the requests from Bangladesh authorities regarding its contents relating to militancy, religious incitement and anti-state elements.

The assurance came when a delegation from th regional headquarters of Facebook in Singapore met Posts and Telecommunications Minister Mustafa Jabbar in Dhaka.

Clearly, none of these efforts have yielded results to the government's satisfaction.

Addressing a virtual press conference, Transparency International Bangladesh Executive Director Dr Iftekharuzzaman said if the proposed regulation for the digital, social media and over-the-top (OTT) platforms is enacted into law, there will be a risk of Bangladesh becoming a "surveillance-based" country.

The graft watchdog raised concerns over a number of clauses in the draft regulation, stressing the need for bringing significant changes to them before going for the enforcement.

According to clause 6.01 (d) of the draft regulation, either BTRC or a court with competent jurisdiction can issue a content removal request on grounds related to sovereignty, integrity or security of the country, decency or morality, friendly relationship with foreign countries, or defamation, TIB said in its comments on the regulation.

An intermediary must remove the content promptly, but in any event within 72 hours. Fundamentally, this requirement raises several concerns, it said.

Clause 7.03 of the draft law says upon receiving a court order or instructions from the BTRC, messaging service operator is required to track the originator of a message and disclose information about him or her to the authorities, if so asked.

Effectively, this provision requires every message, photo, video and other communications sent over a messaging service to be "fingerprinted", it said.

It added that most messaging services now use end-to-end encryption, which means that this clause will require the services to break those encryptions, violating the legitimate expectations of citizens regarding the privacy of their correspondence and other means of communication.

Iftekharuzzaman said while formulating the regulation, the government has to consider that people's fundamental rights, especially freedom of speech and freedom of expression, are not put at risk in the name of controlling digital, social media and OTT platforms.

For its part, the BTRC says the commission is formulating a policy under the direction of the high court.

Incidentally, the allegation of serving 'unethical and offensive' video content on various web platforms relying on OTT (Over the Top) is long-standing. The telecommunications regulator is preparing a guideline to control these. The BTRC is also working on monitoring, identifying and determining procedures for the distribution of unethical and offensive video content on OTT platforms. The fear is that it is bundling in a set of draconian measures alongside it to curb freedom of expression on the net. And this is well-founded.

Asked about this, the Minister of Posts and Telecommunications told Bangla Tribune that the High Court has directed BTRC to formulate a policy on OTT. He said that the policy has been published on the website of the commission and the opinions of the public have also been taken. There is still room for comment. BTRC is meeting with the stakeholders and taking their views. The High Court will decide on the basis of the final draft later.

He added, "There is nothing to be excited about right now. Wait and see what the High Court decides."

Asked whether the new policy would impede freedom of expression, Jabbar said, "The constitution has given freedom of expression. Will the High Court act outside the constitution?"

How would it work?

The fact that the BTRC has sought the comments of stakeholders or the public cannot be of much comfort, given the previous experience with the Digital Security Act. But there is scope for the proposed law to be understood better. A catchy headline that quoted one of the participants at the webinar organised by MOSC out of context demonstrates that last point.

The headline in vernacular daily Samakal implied that with the passage of the proposed BTRC regulations, even posting an innocuous status such as "Not in a good mood today" could make someone liable for punishment. In reality though, the draft law contains no provision to target the public, or to 'punish' them.

The crux of the proposed BTRC law is not to punish individuals, but rather to prevent content the government deems troublesome from being available to the public on social media platforms. Content removal. Censorship in other words, but with the crucial difference that this would now target the platforms - instead of the individuals posting on these platforms, who in many cases may be out of reach.

A real world example will help to make this clearer. We know how the government has been vexed by the content posted by US-based journalist Kanak Sarwar on his Youtube channel in the last couple of years. Indeed, one of the cases in which the High Court directed the BTRC to find ways to have content removed from the internet was to do with him. It has been even more frustrated by the lack of a way to prevent him from doing so, given that he is in the US, and Youtube are not bound by any laws to respond positively to requests on the part of the government to have the content on his channel taken down for viewers in Bangladesh. They would only agree to requests that align with their own self-regulatory code of conduct (e.g. hate speech).

The principal aim of the draft regulation will be to bind sites like Facebook, Youtube, Twitter, etc, to the rules and regulations laid down by the government. In the most relevant section of the draft law, it is stated: " intermediary (the platforms).... upon receiving actual knowledge in the form of an order by a court of competent jurisdiction or on being notified by BTRC, shall not host, store or publish any unlawful information, which is prohibited under any law for the time being in force in relation to the interest of the sovereignty and integrity of Bangladesh; security of the State; friendly relations with foreign States; public order; decency or morality; in relation to contempt of court; defamation; incitement to an offence relating to the above, or any information which is prohibited under any law for the time being in force."

That is sufficiently broad and vague to potentially include anything the government may ever consider offensive. In case the content is already posted (as is likely in most cases):"...if any such information is hosted, stored or published, the intermediary shall remove oI disable access to that information, as early as possible, but in no case later than seventy two hours from the receipt of the court order or on being notified by the Government or BTRC, as the case may be."

So in the case of a Kanar Sarwar, once the new law is enacted, the government would simply need to notify the relevant platform that it wants the content it deems troublesome removed, and then wait 72 hours. The law would also require the intermediaries to appoint compliance officers resident in Bangladesh to coordinate with the government on all this. They will also have to register with the government to keep providing their services in the territory of Bangladesh, and violations of the law will risk loss of registration.

And what if they don't? In India we've seen how the head of Twitter had to leave the country under threat of arrest. Bangladesh's draft regulation specifically refers to violations incurring penalties spelled out in section 66A and section 64 of the BTRC Act, i.e. fines of up to Tk 3 billion and/or imprisonment for up to 5 years.

It now remains to be seen how far the platforms are ready to play ball.

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