Hoisting digital security to stifle freedom of speech: a tale of an ongoing oppression
Author: Gianpaolo Mascaro
Freedom of speech and expression has long been recognized worldwide (both at the national and international level) as an integral part of the spectrum of fundamental human rights, playing a paramount role in the correct functioning of democratic systems. The founding fathers of Bangladesh, charged with the task to build a democratic country after gaining independence from Pakistan in 1971, were undoubtedly aware of this truism and, as a result, they embodied freedom of thought, conscience and speech in Article 39, Part III, of The Constitution of the People’s Republic of Bangladesh of 1972.
However, to ensure the coexistence of the manifold (at times conflicting) interests within a given society, the extension of the enjoyment of human rights shall be subject to some sort of limitations: no exclusion made for freedom of speech. Mindful of this, paragraph 2 of the aforementioned Article 39 establishes that the right of every citizen to freedom of speech and expression and the principle of freedom of press can be reasonably restricted by law whenever “the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence” require so. Therefore, the Constitution itself paves the way for law makers to identify the specific cases in which freedom of speech can be legitimately sacrificed on the altar of more compelling interests of the State or of society as a whole. The Information and Communication Technology Act of 2006 and the Digital Security Act of 2018 posit themselves against this backdrop. Despite theoretically pursuing Constitution-based principles, both these legal instruments have in concrete terms silenced and set aside the entire framework of guarantees enshrined in them, leading to several human rights violations in Bangladesh, raising the concern of the civil society.
The Information and Communication Technology Act of 2006
In October 2006, the Bangladesh Nationalist Party enacted the Information and Communication Technology Act (hereinafter ICTA) with the proclaimed intent to fight cyber-criminality, such as hacking and other attacks against computer systems or networks. At first sight commendable, a deeper analysis of Section 57 of the ICTA clarifies how this legal instrument was conceived to stretch its tentacles much further than that. Section 57 criminalised the publication or the transmission of any online material which, according to the specific circumstances, is deemed to be fake, obscene, or to have somehow the effect to deprave and corrupt persons, to undermine law and order, to prejudice the image of the State or person or to collide with religious belief or instigate against any person or organisation. According to the second paragraph of Section 57, the maximum jail term for these offences had initially been set to ten years. However, such a roof was raised to fourteen years in 2013 by the Government headed by the Bangladesh Awami League party. In addition to exacerbating the penalties, the 2013 amendment crossed out the reference to the need of a warrant to make a legitimate arrest under the ICTA, as well as making the aforementioned offences non-bailable. In combination with the nebulous wording of the article, these measures disengaged the law enforcement bodies from most of those legal constraints meant to safeguard individuals against the risk of arbitrary and illegitimate deprivations of personal liberty. This statement is confirmed by the fact that, since the reform of the ICTA, the cases grounded on the violations stipulated in Section 57 tripled, determining a dismaying increase in the number of people being exposed to arrests, prosecutions and sentences.
Indeed, throughout the years, the ICTA became more and more of a tool in the Government’s hands to shut down any expression of the population’s dissent against the established power. One of the clearest examples showing how digital security discourses have instead served merely anti-democratic purposes is the arrest of Shahidul Alam, a photographer who documented the violent attacks perpetrated by the Bangladeshi police to dismantle the peaceful protests of thousands of students demanding safer streets in summer 2018. In addition to posting pictures portraying police raids, Alam delivered an interview to Al Jazeera on August 5th, in which he explained that the students’ discontent that led to the protests was triggered by several other factors, such as bribery, corruption, and other illegal behaviours within the Government. A few hours after the publication of this interview, police officers arrested Alam, who was charged under Section 57 for abusing the use of electronic platforms to spread false information intended to deteriorate the Government’s image and credibility before the international community, as well as endanger law and order within the country. In the aftermath of the arrest, Alam was tortured by policemen and detained for 107 days.
In light of the injustices endured by Alam and many other individuals, national and international human rights organisations, activists, advocacy practitioners and opposition political parties directed a barrage of criticisms against the misuse of Section 57, urging for it to be repealed. After months of pressure, on September 19th, 2018, Section 57 was eventually abrogated and replaced by the enactment of the Digital Security Act. Yet, the problematic issues outlined so far in Section 57 are miles away from being sorted out. Indeed, as it will be surveyed in the following paragraph, this legal instrument too can be easily manipulated in order to pursue anti-democratic goals in the name of vaguely-defined overriding national interests, since it does not contain any effective solution to all the flaws and shortcomings which characterised the infamous predecessor.
The Digital Security Act of 2018
The heralded scope of the Digital Security Act (hereinafter DSA) – following the traces of the ICTA – consists of tackling the vast gamut of cyber-criminal activities that have been increasingly challenging security goals in the modern era. However, as promptly flagged up by the fleshed-out examination carried out by scholars Bari and Dey, the ambiguity of the construction of the norms and the harshness of the sanctions imposed severe threats to freedom of speech and expression, turning out to tie hands of both individuals and media outlets. Upon this overarching premise, it appears useful to mention the set of provisions giving rise to the main controversies.
Firstly, Section 8 allows the law enforcement bodies, incarnated specifically in the Director-General of the Digital Security Agency, to subjectively identify and remove all the online content which would endanger the unity of the country, its economic activity, its security, defence, or public order which would otherwise spread racial hatred and hurt religious sentiments. Moreover, Section 25 prescribes three years of imprisonment for whoever uses digital platforms to share offensive, false, or intimidating information which annoys, insults, humiliates or denigrates a person that causes harm to the image of the nation. The wording of these articles reveals that merely listing the overriding national interests to be preserved leaves the subjects bestowed with the power of interpretation and far too much leeway. Consequently, these two sections result in insufficient fulfilment of the indispensable precision and determinacy criteria that should always go hand in hand with any criminal norm.
Secondly, Section 21 criminalises any digital content potentially positing against the liberation war and its spirit, against the “Father of the Nation” Sheikh Mujibur Rahman and, eventually, against the Bangladeshi anthem and the Bangladeshi flag. In the clear attempt to guarantee the honourability of the milestones of the nation, Section 21 is susceptible to abuses, culminating in the censorship of critical analyses of the historical events of Bangladesh carried out by academics, researchers, and journalists.
Furthermore, Sections 28 and 31 aim to maintain the order within the Bangladeshi society, since the former prohibits the employment of web services to hurt religious values and principles, whereas the latter criminalises the utilisation of electronic platforms to disrupt the harmony of the community by spreading content capable of fanning animosity and hostility amongst classes. As for these norms too, the grey zones ensuing from lack of clarity of the drafting technique are too wide and indefinite, leading to potential misuses driven by the only purpose of muzzling dissenting opinions.
Additionally, Section 32 imposes a maximum imprisonment term of fourteen years for people endangering or unveiling state secrets through the use of digital devices and computer networks. This norm is susceptible to be instrumentalised to stifle investigating journalists, impeding them to uncover hypothetical wrongdoings and misdeeds of the Government, perpetuating therefore the poisonous atmosphere of impunity and lack of accountability.
Lastly, from a procedural viewpoint, Section 43 of the DSA reiterates the freedom granted by the ICTA to the law enforcement agencies in terms of searching, seizing arresting individuals accused under the aforementioned provisions without the need to obtain warrants from judges. As previously noted concerning to the ICTA, the removal of the necessity of warrants renders the checks and balances system amongst the different branches of law irremediably ineffective, granting, therefore, the unfettered power of action to the executive bodies, leaving citizens unforgivably defenceless, at the mercy of the Government’s injustices.
The combination of all these provisions stands in stark contrast with the control powers belonging to the civil society vis à vis institutional subjects (the so-called “bottom-up control”), resulting in a double-pronged sword cutting through the democratic functioning of the country. In doing so, not only a category of professionals is deprived of the right to freely investigate and disseminate the results of their work, but also the whole society is denied the right to benefit from media news and informedly shape their own political choices. Against this backdrop, the weakening of the public scrutiny regarding the State’s behaviour has been confirmed by the fact that despite the countless information flows delivered by international human rights organisations and media outlets about the irregularities committed by the Awami League Party in the context of the general elections of 2018, local media refrained from reporting relevant news. The journalists’ fear of suffering political suppression has been grounded on well-founded reasons – not only as far as the elections are concerned, as the case of Mushtaq Ahmed unfortunately illuminates.
Mushtaq Ahmed was a writer arrested by police and sued in May 2020 for sharing on Facebook some posts criticising the Government’s response to the sanitary crisis caused by the Covid-19 pandemic. Ever since, Ahmed was kept in pre-trial detention in a high-security prison, where he lost his life under unclear circumstances on February 25th, 2021. In the aftermath of his tragic death, thousands of protesters took to the streets demanding justice, exercising pressure on the Government to obtain the release of all the other prisoners charged with violations of the DSA throughout the years and to repeal the act itself. Notwithstanding the riots, the Bangladesh Law Minister, Anisul Haq, reacted quite coldly, stubbornly asserting that the portrayal of the DSA as a weapon to curb citizens’ freedom of speech was absurd. He added that the abrogation of such a legal instrument was still out of consideration.
Conclusion: the need for a democracy-led reform
The firm indifference shown so far by the Bangladeshi institutions to the outcries of the population is highly concerning. As a reaction to such persistent resistance, it is more important than ever to keep pushing and advocating tirelessly for a sudden and dramatic change of the State’s approach to freedom of expression, in order to finally substantiate and abide by the democratic principles enunciated by the Constitution of Bangladesh, as well as by the main international human rights documents, such as the Article 19 of the Universal Declaration of Human Rights and the Article 19 of the International Covenant on Civil and Political Rights.
Moreover, today, it is equally essential to adapt this general commitment to the digital era in which we are all plunged, taking further measures to make sure that all these rights are guaranteed in the “behind-the-screen reality” too. Given the unquestionable centrality assumed by the Internet in the last decades, the web is now a natural extension of everyday life. Subsequently, the framework for protecting human rights must be updated accordingly, giving due attention to their online counterparts. The importance of the digital sphere in the correct and swift functioning of democratic systems is a fortiori demonstrated by the so-called “Milk Tea Alliance”, an online activism movement uniting Thai, Taiwanese and Hong Kong individuals raising their voices against the oppressive Chinese government. Social media have the power to establish connections and solidarity flows that are inherently borderless. Thanks to these technologies, everyone with access to Wi-Fi can participate in global movements of political resistance, regardless of their geographic location.
The DSA, with its countless ambiguities and interstices paving the way to abuses and injustices, needs to be reconstructed, mindful of the all multifaceted nuances at stake when it comes to freedom of expression and use of digital platforms and, ultimately, to their interplay in the realm of democratic participation. In addition to the amendment of the formulation of the norms, what is profoundly needed is the reintroduction of the requirement for a judicial warrant. In line with the principle of separation of powers, it is fundamental to maintain the competence within the judges’ domains to evaluate the reasonableness and appropriateness of the restrictions imposed on the freedom of speech.
Academic Articles & Books
Bari E. and Dey P., “The Enactment of Digital Security Laws in Bangladesh: No Place for Dissent” (2019) The Geo. Wash. Int’l. Rev. 51 595;
Blair H., The Bangladesh Paradox (2020) Journal of Democracy, 31(4) 138;
Post R., “Participatory Democracy and Free Speech” (2011) Va. L. Rev. 97 477;
Siddik M. A. B. and Rahi S. T., Cybercrime in Social Media and Analysis of Existing Legal Framework: Bangladesh in Context (2020) BildBangladesh 68.
Government of the People’s Republic of Bangladesh (1972), The Constitution of the People’s Republic of Bangladesh;
The Bangladesh Gazette Extraordinary, Digital Security Act No. 46 (2018);
The Bangladesh Gazette Extraordinary, Digital Security Act No. 46 (2018);
The Bangladesh Gazette Extraordinary, Information & Communication Technology (Amendment) Act, No. 42 (2013);
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999;
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III).
“Police Get Seven Days to Grill Shahidul Alam in ICT Case”, (Aug. 6, 2018) BdNews24.com, available at https://bdnews24.com/bangladesh/2018/08/06/police-get-seven-days-togrill-shahidul-alam-in-ict-case;
- Islam, “How is Bangladesh’s Digital Security Act muzzling free speech?” (03/03/2021) dw.com, available at https://www.dw.com/en/how-is-bangladeshs-digital-security-act-muzzling-free-speech/a-56762799;
- Barth, “Bangladesh Prevents Freedom of Opinion” (Aug. 6, 2018) Fair Observer, available at https://www.fairobserver.com/region/central_south_asia/bangladesh-shahidul-alamarrest-free-press-latest-asian-news-this-week-32380/;
- Yamahata, B. Ahmed, “Towards Intersectional Solidarity In The Digital Age: The Milk Tea Alliance” (17/01/2022) Human Rights Pulse, available at https://www.humanrightspulse.com/mastercontentblog/towards-intersectional-solidarity-in-the-digital-age-the-milk-tea-alliance.