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Controversial Issues of Section-57 of the ICT Act, 2006: An act that Needs to be Removed

Publish On : 21/08/2017

Abstract

One of the intrinsic of human being is the desire of being free which sense makes them distinct from other animals. The State is on legal obligation to maintain, protect and promote them according to law. ‘Freedom of Thought and Expression’ and ‘Right to Privacy’ both are guaranteed by the Constitution of Bangladesh. As an emerging democratic country it bears more importance for the progress of democratic process and culture. Section-57 of the ICT Act, 2006 deals with Punishment for publishing fake, obscene or defaming information in electronic form, in appearance mostly contradictory with ‘freedom of thought and expression’ whereas under this section’ right to privacy’ is highly focused bearing huge ambiguity therewith. In the era of information and technology right to privacy how much should be protected and possible to protect  and maintenance is rational in real life, there should have minimum parameter and guidelines in law. Considering the reality removing ambiguity of the section for minimizing the suffering of mass people in enforcement of it is the demand of time. This article is on the ways to come out from these dilemmas along with  recent government  initiative to cancel the  section and reduce human hassle. 

Right to Thought, Freedom of Expression & Right to Privacy

Freedom of thought is the precursor and progenitor of and thus is closely linked to other liberties, including freedom of religion, freedom of speech, and freedom of expression. World and nearly all democratic constitutions protect these freedoms. Freedom of thought is the matrix, the indispensable condition, of nearly every other form of freedom. With rare aberrations a pervasive recognition of this truth can be traced in our history, political and legal.

Recognition of ‘Right to Thought’ and ‘Freedom of Expression’

The United Nations’ Human Rights Committee states that this, distinguishes the freedom of thought, conscience, religion or belief from the freedom to manifest religion or belief. It does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice.

Government is very much positive towards the people demand and considering the issue seriously. Law Minister Anisul Huq said - the section 57 of the Information and Communication Technology Act is a hurdle to the freedom of expression.The government will formulate a new law – Digital Security Act – in which the confusion and ambiguity of Section 57 will be removed, he said. The draft of the Digital Security Act is now under vetting, the law minister said. “The government will ensure freedom of expression.”

Recognition of Right to Privacy in International Instruments

The right to privacy is our right to keep a domain around us, which includes all those things that are part of us, such as our body, home, property, thoughts, feelings, secrets and identity. The right to privacy gives us the ability to choose which parts in this domain can be accessed by others, and to control the extent, manner and timing of the use of those parts we choose to disclose.   The right to privacy is a human right and element  of various legal traditions which may restrain both government and private party action that threatens the  privacy of individuals and this right  is  recognized  more than 150  national constitutions.   Privacy rights   are inherently intertwined with information technology. Privacy uses the theory of natural rights and generally responds to new information and communication technologies. Right to privacy is explicitly stated in the Universal Declaration of Human Rights that, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

Right to Thought and Freedom of Expression in Bangladesh

In the context of Bangladesh, the idea, connotations, meanings and uses of the words and phrases such as “freedom of expression‟, “freedom of speech‟, “right to communication”, “communication right”, “right to information” and “access to information” are intertwined and synonymous.

The notion “freedom of expression” can be understood from two approaches, inter alia “equality of human being‟ and “interest of political liberty‟. In equality view, free speech rights serve an overarching interest in political equality and on the second view, people are entitled to make their own individual evaluations of speech, and government is forbidden to intervene for paternalistic or redistributive reasons. Having freedom of speech, one can communicate ideas without any suppression or interference or punitive action. The rights protect individual’s ability to think and to express thoughts in material form, including written, filmed, staged, or otherwise depicted visually. It protects all speech, however offensive or unpopular. It is the bulwark of liberty.

Under its Article-39, the Constitution of Bangladesh guarantees the freedom of thought and conscience, and of speech. Recognizing it as a constitutional right, second paragraph of the Article says-the right is guaranteed subject to any reasonable restrictions imposed by law in 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. Although the constitution provides for freedom of expression subject to reasonable restrictions,  the press can be constrained by national security legislation as well as sedition and criminal libel laws. The punishment for sedition ranges from three years to life in prison. The 15th amendment to the Constitution includes language that equates criticism of the constitution with sedition. There are laws which can help protections for the right to freedom of expression and information, including media freedom in Bangladesh, such as the Community Radio Installation, Operation and Broadcast Policy, 2008; The Right to Information Act, 2009 and the establishment of an Information Commission under this Act; the National Policy on Information and Communication Technology (ICT), 2009 and The Whistle Blowers Act, 2011. The Right to Information Act, 2009 guarantees the rights to all information held by public bodies, simplifies the fees required to access information, overrides existing secrecy legislation, and grants independence to the Information Commission tasked with overseeing and promoting the law, according to the press freedom group.

Law 39. Freedom of thought and conscience, and of speech
(1) Freedom of thought and conscience is guaranteed.
(2) Subject to any reasonable restrictions imposed by law in 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–
(a) the right of every citizen to freedom of speech and expression; and
(b) freedom of the press, are guaranteed.

Reazuddin Ahmed, a former president of Bangladesh Federal Union of Journalists, said, “Section 57 is a draconian law and it should be repealed as it goes against the spirit of freedom of press and freedom of expression.”

Is freedom of speech or expression under threat in Bangladesh?

Recent events make it clear that the answer is most certainly yes. Prominent human rights lawyer Sultana Kamal was threatened by Hefazat-e-Islam with physical violence after making hypothetical comments on a television talk show. In the meantime, a legal notice was served demanding the arrest of veteran journalist Afsan Chowhdury, who has been accused under the ICT Act of defamation in a Facebook post.

Both cases point to a deeply disturbing trend in Bangladesh — the slow and steady clamping down of our fundamental, democratic right to free speech. But as the two examples show, the threat to freedom of speech is coming from two different directions, one from extremists trying to hit at the constitutional freedoms of the country, the other from the government itself. Because of these forces, the free press of Bangladesh is also under attack: Journalists routinely find themselves under fire for simply doing their jobs, and there are countless accounts of media personnel being assaulted by law enforcement agencies or politically-connected goons. It is no wonder that Reporters Without Borders ranks as as one of the worst countries in the world for press freedom, ranking 146 in the Press Freedom Index.

Section 57 of the Information and Communication Technology Act stipulates that any post, image, or video on an electronic format that causes to deteriorate law and order, prejudice the image of the state or person or hurt religious beliefs are non-bailable offences. The punishment is a minimum seven years in prison up to a maximum of 14 years. The fines can go up to Tk1 crore.

The Section-57 of the Information & Communication Technology Act, 2006

The concern section of the Information & Communication Technology Act, 2006 stated, “If any person deliberately publishes or transmits or causes to be published or transmitted in the website or in electronic form any material which is fake and obscene or its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it or causes to deteriorate or creates possibility to deteriorate law and order, prejudice the  image of the State or  person or causes to hurt or may hurt religious belief or instigate against any person or organization, then this activity of his will be regarded as an offence. In  providing punishment,  it  says-Whoever commits offence under sub-section (1) of this section he shall be punishable with imprisonment for a term which may extend to ten years and with fine which may extend to Taka one crore.

Controversies of Section-57 of the Information and Communication Technology Act, 2006

Most other parts of the text are understood but section-57(1) of the Act outlines the scope of cyber crime and appears most confusing. From the text of the Act it appears that even any innocent online posting can become a cyber crime, if the authority believes that it has provoked a third person to become derailed or dishonest. In other words, the crime doesn’t depend on the offensive or illicit nature of the posted material. It depends on the readers’ or viewers’ personality and attitude. The question is, if a crime-prone person becomes derailed or dishonest by watching or reading a seemingly honest content then why an innocent content provider will be responsible for that crime-prone person’s act? Need an expert opinion from any lawyer to make sure that we aren’t missing something here. On the other hand the Information and Communication Technology Act, 2006 is far more ambiguous that leaves unprecedented and unchecked power at the hands of the “authority”. According to article-57(2),  such offender can be punished with a sentence of up to ten years imprisonment and  a fine up to Taka one crore. Since cyber crime is being treated as a serious offence, the nature and definition of the crime needs to be unambiguous, transparent and clear in its expression. The ICT Act contains a number of vague, imprecise and overbroad provisions that serve to criminalize the use of computers for a wide range of activities in contravention of the right to freedom of expression, including the right to receive and impart information, protected under international law. Although the right to freedom of information is not absolute, the re the restrictions contemplated under the Act do not fall within the scope of exceptions permissible under international law, including Bangladesh’s treaty obligations. Section-57 of the ICT Act criminalized publishing or transmitting or causing to publish or transmit any material which is fake and obscene or its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it or cause to deteriorate or create possibility to deteriorate law and order, prejudice the image of the State or person or cause to hurt or may hurt religious belief or instigate against any person or organization, then this activity of his will be regarded as an offence. This provision is  incompatible with Bangladesh’s obligations under Article-19 of the ICCPR. The offences prescribed are vague and overbroad, the restrictions imposed on freedom of opinion and expression go beyond what is permissible under Article 19(3) of the ICCPR and the restrictions are not necessary and proportional to achieve a legitimate purpose.

Khandaker Muniruzzaman, acting editor of daily Sangbad, said section 57 is a “repressive law” and one of the main reasons of enacting such a law is to control journalists so that they think twice before writing anything about powerful quarters. Journalists are not above the law and there is way to take legal steps against them, but implicating journalists under a special law is nothing but serving interests of the powerful, he said.“The law goes against freedom of speech, freedom of expression and freedom of press. There should be no such law in a civilised, democratic country. It must be repealed.

Points of Ambiguity

Section 57 of the Information and Communication Technology (ICT) Act-2006 goes against people's right to freedom of expression and free speech, say legal experts. Particularly, they add, the section contains vague wordings, allowing its misuse against newsmen and social media users. Section-57 of the Information and Communication Technology Act, 2006 is the synonymous to ambiguity and a threat to people’s free speech freedom of expression. According to the legal experts this provision is a threat to people’s right to freedom of expression and speech. They believe the vague narrative of this section is misleading and is allowing its misuse against newsmen and social media users. Section-57 is so vague that law enforcers can interpret it as they will to arrest anyone anytime. There is no any rule of procedure or guidelines to the law enforcing agencies for applying this. This section is so flexible to interpret in any way and any sort of expression in public can be covered. This one is so obstruct and rough translation that a nude child sitting on father’s lap image publication can also be interpreted as an offence under the section.

Shaban Mahmood, president of Dhaka Union of Journalists, said filing cases against journalists is an impediment to freedom of press. “We heard that in many cases, section 57 has been used as a weapon against journalists only for political reason. This is very unfortunate.” He said they will go for a tougher movement if the section is not repealed immediately. In Bangladesh, an aggrieved person can send a rejoinder or legal notice to a newspaper, lodge complaints with the Press Council or even file a defamation case under the Penal Code. But the recent trend is that cases are being filed against journalists under section 57, apparently to ensure immediate harassment of the accused, as one can be arrested under this law even before investigation. It is an abuse of the law.”

Recent Experience of Enforcement of This Section

Section-57 of the Information and Communication Technology (ICT) Act, 2006 particularly  this section contains vague wordings, allowing its misuse against newsmen and social media users. The demand for its repeal intensified following the arrest of journalist Probir Sikdar who was arrested and sent to jail after he posted a status on Facebook, expressing fear that his life was in danger and that a Minister, a renowned businessman and a fugitive war criminal would be responsible if he were killed. Following the post, a party leader sued against him under the ICT act for “tarnishing the image” of the minister. Before getting released after a huge people’s protest he had to endure mental torture in custody apart from physical sufferings.

Four bloggers inter alia Asif Mohiuddin, Subrata Adhikari Shuvo, Moshiur Rahman Biplob and Rasel Parvez are also facing trial under section-57 of the ICT  Act for allegedly making derogatory comments about Islam and hurting religious sentiment. Applying this section has been arbitrarily detain Nasiruddin Elan, Director of prominent human rights organization Odhikar, has been arbitrarily detained and he was denied bail by the cyber crimes tribunal on 6 November 2013. Adilur Rahman Khan, Odhikar’s Secretary, has also been charged under the ICT Act and still he is in detained.

According to a source at the Cyber Tribunal in Dhaka, around 700 cases have been filed under section 57 since 2013. A total of 260 cases were filed till the first week of June this year, the Star Weekend magazine reported, quoting the source

On July 2, Iqbal Hossain Chowdhury Milton, chairman of Islampur Union Parishad in Rangunia upazila of Chittagong, filed a case against senior reporter of daily Samakal, Taufiqul Islam Babar, over a June 22 report on the alleged involvement of AL leader Hasan Mahmud's aides in criminal activities. 

Three journalists were sued by Afruz Mia, president of Pukra union Jubo League in Habiganj, on June 3 over a report involving local AL lawmaker Abdul Majid Khan.

The accused are Golam Mostofa Rafiq, editor of Daily Habiganj Samachar; acting editor Rasel Chowdhury and Managing Editor Niharanjon Saha Niru.

Rights activists and journalists have been critical of section 57 from the very beginning and the debate over the provision and demand for its repeal intensified following the arrest of journalist Probir Sikdar in 2015.

The veteran journalist was arrested and sent to jail after he posted a status on Facebook, expressing fear that his life was in danger and that LGRD Minister Khandaker Mosharraf Hossain, businessman Moosa bin Shamser and fugitive war criminal Abul Kalam Azad would be responsible if he were killed.

Tahmina Rahman, Bangladesh and South Asia director of ARTICLE 19, a UK-based rights body, said section 57 is not only a problematic provision but has a huge potential for violations and abuse against people who exercise freedom of expression. “The grounds are very broad, not narrowly defined. The section lacks clarity and doesn't provide for the protections that we have in other laws. So when the section is used, there are chances of misuse. So we have been calling for repeal of the section. There is no scope for reviewing section 57.”

Government Response:

Government is very much positive towards the people demand and considering the issue seriously. Law Minister Anisul Huq said - the section 57 of the Information and Communication Technology Act is a hurdle to the freedom of expression.The government will formulate a new law – Digital Security Act – in which the confusion and ambiguity of Section 57 will be removed, he said. The draft of the Digital Security Act is now under vetting, the law minister said. “The government will ensure freedom of expression.”

Considering some other issues government has issued an order on August 2 inn regard of case sued according to Section-57, Information and Communication Technology (Amended) Act, 2013.

Where  it is said that it is to be informed regarding the subject mentioned above that the reports regarding the case sued for criminal activities subjected in Section-57, are being published in different print and electronic media. Complaints have been raised due to the failure of proper implementation of law in some contexts of the cases sued in different police stations. Aiming to bring all the criminals under legal procedure through its proper implementation and ensuring not to harass the innocent people, the following issues must be followed under Section-57 before the case is sued:

a) To maintain high alert in regard of the cases sued according to Section-57, Information and Communication Technology (Amended) Act, 2013.   
b) To verify the compalints registered as General Diary (GD) in the concerned police station if any doubt arises about it.
c) To take legal advices from the Law Department of Police before the case is sued.
d) To ensure so that the innocent people don’t get harassed.

Under such circumstances, all the instructions mentioned above regarding the criminal activities belonging to the Section-57, Information and Communication Technology (Ammended) Act, 2013 are to be observed properly before the case is filed.

So we can hope that this order will get enforced by our government and the raised issue will be addressed accordingly.

BASIS President Mustafa Jabbar said-It is our pride that Bangladesh is moving towards the development using ICT as tools to move forward. Like other sector it impacts a lot in our media and freedom of expression. Recently, cyber space has seen rapid expansion in Bangladesh. At the same time, there have been several attempts to choke free thinking and writing in the cyber sphere. Cyber Security legislation and implementation are mandatory for the advancement of country’s ICT sector. Now, it’s a demand of time in Bangladesh to transfer into digital in  real sense. It is the hope that the government also agrees with us regarding the misuse of the section -57 and circulate a notice with some legal instruction to file case against some one under the section 57. Expecting that it will reduce the misuse of the law.

Personally, I think, ICT or Digital Security Act will get stain-free once this section is cancelled. Hopefully, the government will consider  the public opinions and finalize the law along with the cancelation of this section. Since the honorable Minister has committed before public to address the issue so I believe he will keep his commitment. We have to wait patiently to get something better. We just need to aware and confirm that the legislation doesn’t impact on our basic rights. Otherwise, we do have scope to speak and discuss the issue with the concern authority  in future too. Government, in this case, will show proper generosity, as they showed till that day on this issue, I believe. And regarding the issue of the prevention of the Cyber Security Act application, I would like to say that once the Section 57 is cancelled, it would be much easier to prevent these issues. So, our first demand is to remove this section from the digital security law .

Concluding Remarks & Recommendations

Freedom of expression is an important indicator of a democratic society and development. If freedom  of expression is prevailed in a country or society, other democratic rights and freedoms will automatically be ensured.

1.If the government wants to keep it, there should be rules of procedure specifying how the act would be applied .

2.The concerned Ministry (ICT), has  enacted the rules of complain procedure, there is the  possibility that the recent notice will stop the  misuse of the law. As soon as possible it should be implemented and media can play a role to aware people about this order so that law should be applied cautiously.

3. We believe that our government will keep their promise and this section has to be erased from the concerned Act as it has gone much beyond the reasonable restrictions put by the constitution on freedom of speech

4.Law enforcing agencies inter alia police should be guided properly in enforcing this section..

5. Section-57 of the ICT Act, 2006 is a clear violation of the rights enshrined in article-3949 of the constitution of Bangladesh. That’s why provision should be amended and should be made clear as per the constitutional guarantee prevail and international obligation of the state remains protected.

6.Citizens should be made properly educated and aware of writing and posting anything in the form of electronic contents that may affect anyone’s religious belief.

7.Hard law is violated immensely. Going through this experience of the history penalty provided under this section may be reconsidered, amended therefore and new form of punishment may be provided.

8.This section should be clarified properly, so that the social media user can maintain social communication without any sort of fear and threat of arrest.

Finally

By exercising the freedom, people can participate in decision-making through free access to information and ideas. To understand the presence of freedom of expression and right to information, we need to understand the local political context, history and cultures. Bangladesh is politically a highly polarized and divided country. The guarantees of the rights do not depend only on the relevant laws, but social, political and cultural processes. Despite the presence of all difficulties, it can be argued that there is certain level of freedom of expression in Bangladesh than any other developing countries. But it is positive that the Government of Bangladesh moving forward to amend the Section-57 of the Information and Communication Technology Act, 2006 because it is being used to assault freedom of expression and freedom from arbitrary detention. This should be done for ensuring rule of law, rule of justice, and the stability of democratic process and establishment of long term democratic culture in Bangladesh.

 

Courtesy
Mohammad Badruzzaman
Senior Lecturer, Department of Law, Uttara University, Dhaka, Bangladesh,
The Daily Star, Dhaka Tribune.

 

 




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