As the domain of cyberspace becomes increasingly dominant in the everyday lives of individuals across the globe, so does the potential for crimes to be committed through this. Whilst there is no universally accepted definition of cybercrime, it is basically any crime related to cyberspace, computers, networks and the internet.
Several state parties, now painfully aware of the novelty of cybercrimes, have faced difficulties transitioning from the existing set of legislation to adapting the law to deal with the array of crimes developing in the 21st century.
This is especially true for developing countries such as Bangladesh, where the majority of the population is not yet accustomed to the complexities of cyberspace, and the dangers it may entail.
One of the biggest criticisms directed at the existing cyber law framework in Bangladesh is that the particularly controversial provisions of the Digital Security Act, 2018 (DSA), and the preceding Information and Communication Technology Act, 2006 (ICT) were inconsistent with Bangladesh’s international law obligations.
Many journalists, human rights defenders and academics think that the DSA is unduly restrictive of the right to freedom of expression on the internet.
Bangladesh, being a signatory to the International Covenant on Civil and Political Rights (ICCPR), is under an obligation to ensure the guarantee of the right to freedom of expression under Article 19 of the ICCPR.
Although the right is not absolute and may be restricted in certain circumstances, any restriction of the right must satisfy the “strict test of justification” provided under Article 19(3).
The United Nations Human Rights Committee has clarified in their General Comment no 34, that, paragraph 3 lays down a three-pronged test, requiring any limitation on freedom of expression to be (i) provided by law, (ii) in pursuit of one of the legitimate aims provided in paragraph 3 and (iii) necessary and proportionate to achieve the legitimate aim.
The first limb of the test requires the restriction on free speech to be ‘provided by law’, which requires the piece of legislation in question to be “worded with sufficient precision” such that individuals can reasonably foresee the consequences of a given action and regulate their conduct accordingly.
Many think that the DSA is plagued with “overly broad terms”. For instance, section 21 of the Act makes it an offence to publish propaganda or campaign against “the liberation war of Bangladesh, spirit of the liberation war, father of the nation, national anthem or national flag”.
It is arguable that the term “spirit of liberation war” which has not been clearly defined, is too vague and may give rise to abuse by the law enforcement agencies. Similarly, s.28 of the Act makes it an offence to intentionally “hurt or provoke the religious values or sentiments”. Again, no further clarity is provided, as to what would amount to hurting or provoking religious sentiment.
The Special Rapporteur on the protection and promotion of the right to freedom of opinion and expression, Irene Khan, in her 2021 Report, was also critical of legislation which grants unfettered discretion to executive authorities without any judicial oversight.
The task of determining the extent to which removal or blocking of information is necessary should be handled by a judicial body or an independent body free from any political, financial or otherwise undue influence.
Section 8 of the DSA provides that the Director-General of the Digital Security Agency may request the Bangladesh Telecommunications and Regulatory Commission (BTRC) to remove or block any data information that ‘threatens the digital security’.
Journalists have voiced their concern regarding this provision as it may lead to excessive censorship and limitation on the freedom of expression, especially in light of the lack of judicial oversight.
However, in defence of these provisions, similar provisions can be found in the cyber law of our subcontinental neighbours.
For instance, section 69A(1) of the Information Technology Act, 2000 of India, allows the Central Government or any of its specially authorised officers to block public access to any information through any computer resource if it is done “in the interest of sovereignty and integrity of India, defence of India, security of the State…”.
Similarly, s.34 of the Prevention of Electronic Crimes Act, 2016 of Pakistan, allows the Pakistan Telecommunication Authority to “remove or block access to an information system if it considers it necessary in the interest of the glory of Islam or the integrity, security or defence of Pakistan…”.
Fears surrounding the ‘precision’ of the legislation are compounded by the sheer number of cases filed under the DSA and ICT. According to the Centre for Governance Studies, 1649 cases have been filed under the DSA since its inception. More concerning, however, is the fact that 10.7% of these individuals were politicians, and 8.6% were journalists.
These statistics seemingly reflect a disregard for the higher level of protection that international human rights law affords to politicians, public figures and members of the press.
Moreover, it may well be argued that the sanctions laid down in Chapter Six of the DSA are disproportionate. It is worth noting that out of 20 provisions that deal with offences, 14 of those offences are non-bailable, with only 5 bailable offences, and one which can be negotiated.
The existing cyber law in Bangladesh is reflective of the unique challenges faced by a developing country transitioning into the age of information. It may well be argued that certain provisions may need to be revamped, and formulated with greater precision such as to align with the State’s international obligations.
The novelty and rate at which change occurs in cyberspace is indeed a challenge for legislators, not only for countries like Bangladesh but for the global domain as a whole.
The author is an LL.B(Hons.) graduate from the University of London, UK and is presently working as a Research Associate at Stellar Chambers.
Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.