Proposed Digital Security Act -- a shield or a sword?

The draft 'Digital Security Act 2018' was approved at a cabinet meeting chaired by the prime minister recently. The new law would render sections 54, 55, 56, 57 and 66 of the Information and Communication Technology (ICT) Act defunct. The proposed Digital Security Act spells out both offences and punishments for violation of the Act. Both bailable and non-bailable offences are included in the draft. Currently, a debate is on, especially in the media, whether the upcoming law will be used as a shield to protect the general people, government and innocent parties or as a sword to snuff freedom of expression.

It would be pertinent to have a close look at some of the provisions under the proposed Digital Security Act before it becomes a law:

Section 21 says anyone spreading negative propaganda against the Liberation War or the Father of the Nation, using digital devices or instigates to do so, will risk being sentenced up to 14 years' jail or a fine of up to Tk 10 million or both. He or she will face maximum punishment of life sentence or Tk 30 million as fine or both for committing the offence for the second time.

Section 25 says, a person may face up to three years in jail or a fine of Tk 300 thousand or both if he or she is found to have deliberately published or broadcast on the website or in electronic form something which is attacking or intimidating or which can make someone dishonest or disgruntled; knowingly publish or broadcast false and distorted (full or partial) information to annoy or humiliate someone; knowingly publish or broadcast false and distorted (full or partial) information to tarnish the image of the state or to spread rumour. A person will face up to five years in jail or Tk 1.0 million as fine or both for committing the offence for the second time.

Section 28 says, a person may face up to seven years in jail or Tk 1.0 million in fine or both if he or she is found to have deliberately published or broadcast something on the website or in electronic form or get it done to hurt one's religious sentiment and values. A person will face up to 10 years in jail or Tk 2.0 million in fine or both for committing the offence for the second time.

Section 29 says, a person may face maximum three years in jail or Tk 500 thousand in fine or both if he or she commits offence stipulated in section 499 of the Penal Code through website or in electronic form.  He or she will face up to five years in jail or Tk 1.0 million in fine or both for committing the offence for the second time, it said. Section 499 of the Penal Code reads, "Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person."

Section 31 of the proposed law says a person may face up to seven years in jail or Tk 500 thousand in fine or both if he or she is found to have deliberately published or broadcast something on the website or in electronic form which can spread hatred and create enmity among different groups and communities and can cause deterioration of law and order. Punishment will be up to 10 years in jail or Tk 1.0 million in fine or both for committing the offence for the second time.

Section 32 says a person may face up to 14 years in jail or Tk 2.0 million in fine or both on the charge of spying if he or she illegally enters the offices of government, semi-government and autonomous bodies to gather information and uses electronic device to record something secretly.

A person may face up to 14 years in jail or Tk 10 million in fine or both for hacking, according to section 34 of the Act.

If anyone illegally enters any critical information infrastructure, he or she will face maximum seven years' imprisonment or Tk 2.5 million in fine or both, and he or she may face up to 14 years in jail or Tk 10 million in fine or both for doing any harm to the infrastructure, according to section 17.

Legal experts point out that many of the ICT Act's provisions have been reproduced in different forms in the proposed new law which still carries sentences of up to 14 years in prison. Sections 19 and 20 of the draft Digital Security Act are replications of the same digital crimes covered in section 57 of the ICT Act. The penalties under the ICT Act are mitigated to some extent. But the cumulative total of the penalties is amplified in the dispersed sections of Digital Security Act. The Act enumerates that if the public or religious sentiment is instigated by anyone which may deteriorate law and order situation through digital means, s/he will be apprehended without any warrant and punished if the allegation is proved.

Section 32 of the proposed Act considers secret recording of any information at any government, semi-government or autonomous institution as espionage. Many journalists and online activists, who expose corruption in government departments by secretly recording irregularities, fear that their activities may also be punishable, being regarded as espionage. Researchers term the provision an updated version of section 3 of the Official Secrecy Act of 1923 on spying. Journalists and law experts fear that abuse of the proposed law would hinder rights ensured by the Right to Information Act 2009. The proposed law also empowers security agencies to search or arrest anyone without any warrant issued by a court if a police officer believes that an offence under the Act has been committed or is being committed, or there is a possibility of crimes.

As per section 43 of the draft, a police official can search or arrest anyone without any warrant issued by a court. Journalists observe that section 57 of the ICT Act has been kept in the proposed law with some changes, despite assurances in the past of removing the controversial provision. Section 57 deals with defamation, hurting religious sentiments, causing deterioration of law and order and instigating against any person or organisation through publishing or transmitting any material on websites or in electronic form. It stipulates maximum punishment of 14 years in prison for the offences. Another distinct feature of the proposed law is the formation of a 'Digital Security Agency'.  According to the draft law, the government will form such an agency to ensure national digital security and combat cyber crimes. A director general will lead the body.

The government has approved the draft to tackle digital crimes. But the apprehension is that the proposed law could be used to suppress freedom of expression in the country. Mentioning the Act as a threat to freedom of speech, expression and the safety of the citizens, the Transparency International Bangladesh (TIB) has called for amendment to the draft law on the basis of the opinion of all stakeholders.

Supporters of the proposed law may contend that it would be a legal solution to yellow journalism and malafide reporting.  However, opponents argue that there are adequate legal safeguards in our legal framework, and that is why, there is no need to introduce such provisions which may hinder freedom of expression. For example, the Press Council Act, 1974 can be used to punish excesses by the media and even criminal and civil remedies can be pursued under the existing laws.

Clearly, the government has taken a significant step to ensure digital security in Bangladesh. However, the proposed law exposes various loopholes. Many journalists and right activists believe that the government may use some of its controversial provisions as a sword rather than a shield to control their voices and activities. But the government strongly believes that the proposed law will be used as a shield for the innocent party and a sword for bad people.

Freedom of expression is a fundamental right and the government should always be careful about the rights of the people. Success of any law depends on its implementation. Implementation of any law positively can be used as a shield, the same law implemented negatively can be used as a sword. 

Dr Md Nayem Alimul Hyder is Associate Professor, Department of Law & Justice, North East University, Sylhet, Bangladesh. [email protected]