Commentary: ‘Analogue law’ for ‘Digital Bangladesh’

This government's sterling achievement of setting in motion a "Digital Bangladesh" suffers a serious blow by way of the proposed Digital Security Act that the cabinet has just approved. 

Once passed, this "digital" law will actually, and ironically, throw Bangladesh back into the "analogue" era -- in the sense of a throwback to the past -- in terms of freedom of expression.

"Digital Bangladesh" has set in motion an exchange of ideas and views among millions, creating an open forum for discussion that our people have never enjoyed. The whole world is caught up in it and we are an integral part of it. It is the platform of new democracy.

Here, in this digital space, millions upon millions of our citizenry engage in debates over the issues of their interest in a way that is unthinkable in any other platforms. Sometimes, a simple photograph of a polluted river or a child in distress triggers a social movement, leading to quick solutions or answering the needs.

Such freedom of expression will be severely curbed if the law in question is passed.

We will be the first to admit that there are incidents of serious abuse of the social media space. But we cannot cut off the head to get rid of a headache. In fact we will still not get rid of the "headache" because those who abuse the social media space will continue to do so regardless of what the law is. It is only the general people who will be affected and harassed by it. 

We have had cases of Facebook posts triggering communal disturbances and shattering religious harmony. But all these were deliberate and pre-planned. Those who did it committed serious crimes under several existing laws. Surprisingly, however, most of them have never been apprehended, leave alone punished. It is hard to believe that the new law will come in the way of their nefarious designs.

In some very specific sense, the draft law that the cabinet approved on Monday spells the death of freedom of expression and of independent journalism as we know it today. Ostensibly, it is only applicable for digital media. But all newspapers now have online presence and they offer multimedia contents, which makes the law applicable for newspapers too.

We wonder why Sheikh Hasina's government is going for this law.

We ask: Has any democratic country, anywhere in the world, ever benefited from curbing freedom of expression of the people and by controlling its independent and free media? Has any elected government ever performed better by throttling freedom of expression? Can a single instance be cited (other than China, which operates on a totally different system) where a country prospered with the press shackled? Has any purpose been served by muzzling the press other than delinking an elected government from its electorate?

The answer is an emphatic no.

In fact there is sufficient evidence to conclude that within democratic countries it is the enemies of democracy who mislead an elected government into believing that the free press is an impediment to their "good" intentions and goad them into adopting anti-freedom laws. The inevitable distancing of the government and the people that follows results in their marked drop in popularity and subsequent fall.

Governments usually have two channels of information -- official channel and the independent media. Official channels are always manned by government servants who loath giving unpleasant news to their political masters.

So any government seeking authentic information must by definition depend on the media. So when it muzzles the media, the government in effect shuts its own source of independent information. This makes them totally dependent on bureaucrats and we all know the consequences.

In Soviet Union, the whole socialist experiment collapsed because the Brezhnevs and Kosygins never knew whether the policies they were enunciating and the directives they were giving ever saw the light of the day and got implemented. Everything was okay on paper till one day the ground from under their feet shifted and the whole edifice fell apart.

So then why, we repeat, is the government of Sheikh Hasina adopting laws whose anti-people characteristics are so palpably clear? The prime minister often talks about "conspiracies" being rife. In our view, this is among the biggest of them and the government is clearly falling into a trap of its own creation.

When police are given the power to search and arrest without warrants, can any civic activist or journalist be ever expected to report facts that run counter to the official versions? When a journalist can be hauled up before the court for "spying" because he or she is in possession of a secret government document, notwithstanding the law minister's assurance yesterday, no media will dare to report it. 

Has the world been served better because of Wikileaks, Panama Papers and Paradise Papers?  Under the law in question, all the Bangladeshis whose names appeared in those papers could take us to court and the police could arrest us for publishing "secret" documents.

The biggest danger of the law in question is that it does not sufficiently distinguish between genuine cyber-crimes and impediments to freedom of expression and the freedom of media. The draft is replete with provisions that can easily be used and abused to curb the press. This is further exacerbated by vagueness of language that leaves too much room for interpretation which, in turn, poses threats to freedom of expression.

We in the media suffer from a "trust deficit" because of our experience. Laws are implemented or otherwise on political grounds and other extra legal considerations. Defamation cases filed under the Penal Code are regularly accepted by lower courts even when the law clearly states that only aggrieved persons can lodge such cases.

It is to be noted that between 2012 and June 2017, a total of 1,417 cases were filed under the ICT act -- a whopping 65 percent of them for defamation under section 57. As high as 65 percent accused were acquitted by the court after or during trial. In addition, police did not even find any merit to press charges in some 180 cases.

This makes it clear how the ICT act, particularly section 57, has been abused to gag freedom of expression.

Therefore, our fear that the proposed law too will be misused is only justified. 

 A free and vibrant media has served Bangladesh well. It has contributed significantly to improving the image of the country and of its democracy. The Digital Security Act will affect both severely.

PROPOSED DIGITAL SECURITY ACT

SECTION 21 

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 1 crore or both.

He or she will face up to life sentence or Tk 3 crore fine or both for committing the offence for the second time.

SECTION 25

A person may face up to three years in jail or Tk 3 lakh fine or both if he or she is found to have deliberately published or broadcast in the website or 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 10 lakh fine or both for committing the offence for second time.

SECTION 28 

A person may face up to seven years in jail or Tk 10 lakh fine or both if he or she is found to have deliberately published or broadcast something in the website or in electronic form or get it done to hurt religious sentiment and values.

A person will face up to ten years in jail or Tk 20 lakh or both for committing the offence for the second time.

SECTION 29

A person may face maximum three years in jail or Tk 5 lakh 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 10 Lakh fine or both for committing the offence for the second time.

SECTION 499 OF THE PENAL CODE 

"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 

A person may face up to seven years in jail or Tk 5 lakh fine or both if he or she is found to have deliberately published or broadcast something in 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 10 lakh fine or both for committing the offence for the second  time.

SECTION 17

If anyone illegally enters any critical information infrastructure, he or she will face maximum seven years' imprisonment or Tk 25 lakh fine or both, and he or she may face up to 14 years in jail or 1 crore in fine or both for doing any harm to the infrastructure.

SECTION 32

A person may face up to 14 years in jail or Tk 20 lakh fine or both on the charge of computer spying or digital spying if he or she illegally enters the offices of government, semi-government, autonomous or statutory bodies and collect or preserve or sent any top secret or secret documents through computer, digital device, computer network, digital network or any electronic from and help to do this.

He or she will face up to life sentence or Tk 1 crore in fine or both for committing the crimes second time.