Proposed Digital Security Act: A critique

The Cabinet has recently approved the Digital Security Act, 2016. Since there has not been an opportunity to get hold of the exact version of the law, direct scrutiny of the various provisions of the law is not possible yet. There is also a possibility, however slim it may be, the policymakers would take the disparagement of the various provisions of the law on board and would make amendments to it. Having said that, from what is already in the public domain, there is already a disquieting signal that the passing of this proposed law and in particular its Section 32 would be a very austere regressive step on several counts which this write-up would seek to discuss. Indeed, if one compares some provisions of the law (as they are being referred to in various reports), they are wider in embrace than a law like the Official Secrets Act, 1923 passed by the colonial masters in itself is a testament to the law's backsliding nature.

The law, if implemented in the form as is being referred to in media reports, would deal a severe blow on press freedom. And a blow on press freedom would mean that the public's right to know about matters of public importance would also be compromised. The proponents of the law may contend that with many of our media outlets being tightly controlled by their owners, at times the journalists may be forced to tow the lines of their bosses. However, even if for the sake of argument, we accept that such an unfortunate trend has given an impetus to this new law, it must also be said that for dealing with the excesses of the media, there are adequate legal safeguards in our legal framework. For example, the Press Council Act, 1974 can be used to punish excesses by our media and even criminal and civil remedies can be pursued under the existing laws.

Even from a purely political and strategic standpoint, this law would likely hurt the interest of both the public and government (assuming there is a divergence between the interests of the two groups) on several counts. While the much-talked-about Section 57 of the Information and Communication Technology Act, 2006 has been used to prosecute many, in reality, media reports suggest that the rate of conviction under that Section has been quite low which would imply that either the Section has been used for frivolous reasons or the prosecution has not been able to establish their case. And at least two things are more or less certain: many innocent people have suffered and the already overburdened judiciary has been needlessly burdened even more. A similar outcome is quite probable under the proposed Digital Security Act too.

Investigative reports by both the print and electronic media have in recent years often exposed many corruption and irregularities by the bureaucracy of this country. Thus, a provision like Section 32 of the proposed law which fails to draw a line between spying and investigative journalism would for sure be a blessing for many corrupt bureaucrats. Under Section 32 of the proposed law, even the collection of information from a governmental office may amount to spying. Perhaps even a child would attest that it would be very difficult, if not impossible, to gather information about corruption or irregular practices when such a gathering of information would require approval from the persons responsible for such corruption or irregularity. Thus, a journalist willing to do an investigative report even by merely having to go through some form of a process of obtaining authorisation for the collection of information from a government office, may put some corrupt personnel on alert and make the succeeding investigation process a much more challenging one. The secrecy-promoting tone of the law also in no way sits with the stance of the current government which seeks to take pride in fostering a culture of transparency in its activities such as e-government procumbent and increasing digitalisation of its services. 

From a strictly legal viewpoint, it is also not improbable that when the law is officially implemented, a legal challenge against the provision would be mounted in the Supreme Court. What would be argued before the court and how the court would interpret the provision is uncertain. However, in view of the constitutional guarantees of the freedom of the press and other fundamental rights of citizens to which the ethos of the proposed law is inconsistent, it is quite likely that a provision like Section 32 would fail to pass a constitutional challenge. Thus, it is not unlikely that some of the provisions of the proposed law may be set aside by the Supreme Court which would not in any way be conducive to the image of the government.

Indeed, one may be excused for thinking the proposed law may afford some protection to the corrupt persons in authority and may afford them more security from the public scrutiny, but it would make the journalist much more insecure and thus, in turn, would seriously undermine democratic values. At best, a provision like Section 32 of the proposed law, may apply to those in the defence forces or government's intelligence agencies, etc., whose very job is to protect the government's information for the sake of greater public good. The proposed law in the form as it is being discussed in media reports would be fitting with a colonial regime against whom the Father of the Nation and the freedom fighters of Bangladesh have fought, not with a modern democracy where transparency is of perennial importance. 

The writer is an Associate Professor at Department of Law, North South University.

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