Bangladesh’s Digital Security Act: Demise of Media Freedom?
Article 39(2) of the Constitution of the People’s Republic of Bangladesh guarantees the “right of every citizen to freedom of speech and expression” and the “freedom of the press”. It is one of a list of fundamental rights of citizens in Bangladesh guaranteed by the constitution. The right to free expression is noted in many national constitutions as well as enshrined in international treaty instruments such as the Universal Declaration of Human Rights and the Internal Covenant on Civil and Political Rights (ICCPR)
In September 2018, the Parliament of Bangladesh passed the Digital Security Bill (Bill). This is a law that unequivocally waters down Article 39(2) and seeks to place unduly broad limits on expression in press freedom in the country.
The government led by the Awami League has a digital-first political manifesto “Vision 2021” which seeks to eradicate poverty by 2021 among other critical developmental goals. The Bill is in a line of additional laws and amendments to existing ones that the Government has overseen that have the cumulative effect of restricting freedoms on the net. This Bill is the more malicious sibling of the controversial Section 57 of the older Information and Communication Technology Act, 2006 (ICT Act) which has been used a number of times over the past years to restrict the dissemination of content over digital platforms.
The Bill contains extremely wide and vague definitions for key terms, most egregiously the one for “digital security” that includes all types of security and not just external threats. It grants the responsible minister wide discretionary powers in defining the roles and responsibilities of the proposed Digital Security Agency which is tasked with implementing this Bill at a later point in time. It is inconsistent with established practice in the country, as with most other democracies where the powers of regulatory bodies are defined in the legislation that births them.
Plethora of Problems
Adding to the plethora of problems, the proposed agency and oversight body, the National Digital Security Council, are controlled and appointed by the Government. This is against international law which requires regulatory bodies in the area of freedom of expression to be independent.
While the Bill is intended to minimize or even eradicate misrepresentation or presenting false information in the social as well as electronic media it goes about it in an unconstitutional manner. Perhaps the most damning aspect is that of the eighteen sections of the bill that deal with offences, fourteen outline those that are cognizable and non-bailable. Cognizable offences are those for which the police do not need a judicial warrant to make an arrest. For non-bailable offences, once charged, an accused will normally be held in detention unless a court, in its discretion, agrees to grant bail. There are certain sections that limit forms of expression as protected under international law while others create unduly broad limits on expression. The major problematic sections are 8, 21, 25, 28, 29, 31, 32, 43 and 53. Human Rights Watch has identified Sections 21, 25(a), 31, 29, and 28 as those with a scope of being misused to criminalise free speech.
Penalties for offences under the Bill are wide ranging often bordering on the unfairly harsh. Fines range from 300,000 Tk (EUR 3,050) to 10,000,000 Tk (EUR 101,000). Prison sentences range from 3 to 14 years.
Since the passing of the Bill, journalists all over Bangladesh have been protesting the passing of the law and have stated it would be the demise of free media in Bangladesh. They are rightfully worried and have been obscuring their identities with black masks.
The Digital Security Act is a death knell for free expression and media freedom in the 8th most populous country in the world. It is our hope that civil society and legal activists in Bangladesh rise up to challenge the constitutionality of the problematic sections of the law, if not the entire Act.
Rajat Kumar is the Program Manager Digital Transformation at the Regional Office of the Friedrich Naumann Foundation for Freedom (FNF) in New Delhi. In this commentary he shares his personal views.