Offence of uploading conversations or video clips online

Leaked conversations and video clips often stir the social media platforms. In many cases, the leaked materials interfere with the citizens' right to privacy and also with the lawful processes of the court. It is thus important to know what the law says in this regard.

The conversations of, between, and among individual citizens are completely a private matter. The State or any individual has no legal authorisation to intercept it. The Constitution of Bangladesh, expressly recognises the right to privacy guaranteeing the protection of home and correspondence and other means of communication as a fundamental right in article 43. Here, the right to privacy of correspondence and other means of communication means the privacy of letters, telegrams, and other postal dispatches, as well as of telephone calls and other legal means of communication. In fact, this is the only provision under the Constitution where the word "privacy" is specifically mentioned irrespective of the wordings "right to privacy" as the subset of privacy of correspondence and other means of communication. However, these fundamental rights under the Constitution are subject to reasonable restrictions provided under Article 39(2) of the Constitution that may be imposed by the State.

The authorities have equipment to monitor and record telephone conversations with only objective to do so is to either detect and nab criminals or foil any attempt of subversive activities with pre-emptive measures. So, making the conversation public of some private individual on the social media constitutes an offence. Some individuals may have ulterior motive to influence the investigation or legal proceedings of the persons involved. These acts clearly militate against the right of privacy of the citizens of the country.

The Telecommunication Act, 2001 is the only law that regulates the telecommunication sector as far as data protection is concerned. According to section 30(1)(g), one of the functions and duties of the Bangladesh Telecommunication Regulatory Commission is to ensure protection of the privacy of telecommunication subscribers. Under this Act, the disclosure of any confidential information shall be deemed to be misconduct and the Act provides punishment for that. Any person working within the telecommunication administration of Bangladesh is not authorised to disclose any message of a person to any other person. No Commissioner, or consultant, officer or employee or any other person employed by the Telecommunication Regulatory Commission shall knowingly disclose or allow to be disclosed any confidential information to any other person in a manner so that the information may be used to the benefit of that other person or to the detriment of a related person (section 85(2)). 

Under section 67(b), no person shall intercept any radio communication or telecommunication, nor shall they utilise or divulge the intercepted communication, unless the originator of the communication or the person to whom the originator intends to send, it has consented to or approved the interception or divulgence. The section 68(b) (ii) stated that except for the requirement of a legal proceeding of the Commission or a court or of a consequential proceeding, disclose any information about the sender or addressee or contents of a message which has come to his knowledge only by using or in connection with the use of a telecommunication apparatus or radio apparatus.

There is only exception is the Government's power to intercept. Under section 97 of the Telecommunication Act, on the grounds of national security and public order, the Government may empower certain government authorities (intelligence agencies, national security agencies, investigation agencies, or any officer of any law enforcement agency) to suspend or prohibit the transmission of any data or any voice call, and record or collect user information relating to any subscriber to a telecommunications service. Except for authorised persons as described in section 97 of the Telecommunication Act for security agencies, if anyone taps or intercepts telecommunications between two persons without their authorisation, then such intervention shall be considered an offence.

The perpetrators seem to be trying to influence the investigation and judicial system in favour of some citizens. These acts are against the constitutional right of privacy and some other laws of the land. The relevant authority should hence investigate into the incidents as per law of the land.

The writer is Non-Government Adviser, Bangladesh Competition Commission.