Law enforcement to determine accuracy of news
Law minister Anisul Huq and telecommunications minister Mustafa Jabbar on 19 April said, the Digital Security Act was not made to target the media. It would not affect freedom of expression or freedom of press either.
The ministers said this at a meeting with cabinet members at the time.
Legal experts, however, say if the bill is passed, the government law enforcement agencies like RAB, police, BGB and Ansar will eventually emerge as the ultimate ‘editors’ or ‘super editors’.
“Which news content is right and which one is harmful- all of this will depend on their own logic and whims,” they said.
According to the experts, the law enforcers will be able to use this act to request BTRC to block any digital media at any time.
Bangladesh Telecommunications Regulatory Commission (BTRC) is an autonomous organisation. To be a member of BTRC, one has to have the criteria of a judge of the Supreme Court. Still, if they receive any ‘request’ from RAB, police or any other law enforcement agencies, they will ‘immediately’ respond.
The law enforcement agencies were not even given such power in the IT Act of 2006. Law enforcers had to seek court permission to seize computers used to commit any alleged crime under that act.
Under sub-section- 1 of section-8 in the current proposed act, it is possible to remove any news content published in digital media if it seems to be a threat to digital security.
Sumon Ahmed, a member of the advisory committee of the United Nations Internet Governance Forum, told Prothom Alo, BTRC can block any newspaper’s webpage containing standard Hyper Text Transfer Protocol (http), if they cannot remove contents of the page.
BTRC, however, will not be able to remove or block the webpage where ‘s’ (secured) is added to the http.
Apart from that, BTRC can block the newspapers’ webpage only in Bangladesh.
Law enforcers to be more powerful
Under section-43 of the act, if a police officer suspects any crime or evidence, he can register the incident in his office and conduct a search into any media office, seize computers, search and arrest anybody, without arrest warrant.
In sub-section-2 of section-8, the law enforcement agencies can request BTRC to remove news contents that violate the country’s solidarity, affect economic activities, defence and security, religious values or public order and spread communal hatred among people.
In sub-section 3, it is said that the contents will be removed or blocked by BTRC immediately upon receiving such request.
Acknowledging these concerns, media experts said such rules would certainly violate the freedom of expression and instigate a hostile reaction towards media persons.
Shahdeen Malik, a Supreme Court lawyer told Prothom Alo, “It seems we are going back to the Special Powers Act of 1974.”
Another lawyer Khurshid Alam Khan thinks the definition of law enforcement agencies should be clarified, as the army also falls under the definition of law enforcement agencies.
Under the act, a digital security agency is said to be created under a director general. An emergency response team will be formed for constant monitoring. Their work will be determined by a policy.
So this bill is not the final word. There is scope to make the rules even more difficult.
Digital act includes 8 ‘crimes’ from 1974 act
The eight definitions of the relevant 1974 act interpreted by justice Muhammad Habibur Rahman and Anisuzzaman in ‘Ain Shabdokosh’ (dictionary of legal terms), bears resemblance to the the law related to blocking websites.
Also, the current digital act contains almost all the eight crimes mentioned in the 1974 act. The similarities in the digital act include, three in section 8 (defence, security, ethnic hatred), one in section 25 (intimidation), two in section 27 (foreign states and public order), and two in section 31 (related to security and community).
Muhammad Habibur Rahman and Anisuzzaman recorded in eight points the reasons why newspapers were confiscated. This indicates that the special power of the law enforcing agencies to block online newspapers given in digital act is akin to the confiscation of newspapers in the 1974 act.
The eight points are: 1. Sovereignty or defence of Bangladesh; 2. Having friendly relations with foreign countries; 3. Threat to the country’s security or public security or public order; 4. Instigating hatred or hostility among different communities and classes; 5. Intervention or incitement in law enforcement; 6. Obstructing supply of essential goods; 7. Creating panic or anarchy in society; 8. Causing or intending to cause financial and social damage of the state.
No safeguard for editors
In some of the instances, the terms used to define punishable crimes for online publication are severer than those in the much debated sections annulled in 2006.
Many legal experts are surprised at the free access given to the law enforcement that will enable indiscriminate abuse of the law. They observe, it will add to the spree of arrests, filing of cases and harassment.
The editors and journalists have to depend on the police for their online publications. But in the 1973 printing presses and publications act under CrPC (Code of Criminal Procedure) section 108, safeguards were provided for editors, publishers and presses. The 108 section still has the provision.
It says, any charges could be filed against the owner, editor, publisher or printer of any newspaper registered under the 1973 presses and publications act alleging instigation of sedition, hatred, fear, if the concerned government authorities or officials issue an order in this regard.
Though safeguards remain in place for the press for the same crimes, they are not ensured for online publications.
The digital security act vests the power to determine objectionable content, with the police and Ansar, BGB and RAB. Such free license for the law enforcement is unprecedented in the country. This development implies that BTRC will become paper tiger.
Deviation from 1974 act
In the 1974 act there were remedies for banning or forfeiture of newspapers. The digital act does not address this. This act does not specify any authority to approach for or record any appeal. The span of time for a website to remain blocked is not specified either. There was no provision to confiscate any newspaper on grounds of hurting religious sentiment in the 1974 special powers act nor in section 99 of the 1991 CrPC enacted by the BNP government.
In the much-debated Act 57, there was provision for action against crimes of hurting ‘religious sentiment’. But Awami League has made the matter ambiguous by defining ‘hurting religious values’ as a crime under which online media can be blocked.
Now police, Ansar, coast guard, BGB and RAB will determine the degree of religious values being offended and will search, arrest without any warrant, and block online publications without any trial.
Section 17 of 1974 said, the government will inform the publisher, editor as soon as possible of the confiscation and will issue written orders to submit the printed copies, stop distribution, and file the writer’s name. The act also says that the government must state reasonable grounds in the order and let the accused editor and journalist to present an answer in response to the order. The government must also mention that the accused has the right to self defence.
The government has not expressed any intention of adding such provisions in the new digital act. The law minister Anisul Huq and the information technology minister Mustafa Jabbar have said they would take all the concerns of the editors' council into consideration.
The 1974 act stated that a police official, not below the rank of sub-inspector, with a warrant and with the magistrate's approval, can search a newspaper office. Any search was forbidden after sunset and before sunrise. But the digital security act lacks such safeguards.
Notably, in the abolished section 18 under the 1974 act there was provision for any report on security, friendly relations with foreign states, public order to be cleared for publication within 72 hours of submission to the government.
There was even provision for appeal to be filed within seven days of a certain report being banned. Another provision stated that the appeal should be disposed after hearing by a district judge. In the proposed digital act, the stated crimes are the same as in the 1974 act, but with no scope for seeking remedy.
*This report, originally published in Prothom Alo print edition, has been rewritten in English by Farjana Liakat and Nusrat Nowrin.