Government resolute to ‘control’ digital medium

Let’s take for instance the high price hike of daily essentials. Being angry, you sent a message to your friend on messenger. Or being disappointed you shared a meme, which contains photo of someone involved with the government, on social media with your thoughts on it. A writer writes a screenplay based on these grievances of people and the artwork is aired on any video streaming site, OTT.

You, your friend, screenplay writer and OTT platform – everyone could be in danger. Because, alongside the already existing Digital Security Act (DSA), three more acts, regulation and policy are going to be passed. You can be sued either under this or that act or regulation.

Such provisions have been included in the drafts of these acts and regulations that the organisations that run the internet-based communication media will be compelled to publish your personal chat with your friends. Under the laws and regulations, the organisations would be compelled to help identify you if any of your friend from abroad sends you message that would be deemed as forbidden under the laws and regulation.

The proposed act, regulation and policy are – ‘Data Protection Act, 2022’ prepared by ICT Division, ‘Regulation for Digital, Regulation for Digital, Social Media and OTT Platforms’ prepared by BTRC (Bangladesh Telecommunication Regulatory Commission) and Ministry of Information and Broadcasting’s draft ‘Over The Top (OTT) Content-Based Service Delivery and Operations and Advertisement Broadcasting Policy, 2021’. These three act, regulation and policy will be finalised after taking opinions of stakeholders. However, debates have already arisen over the drafts.

The drafts spoke about protecting the country’s sovereignty and territorial integrity, maintaining the state’s security and friendly relations with foreign countries and public discipline. At the same time, those have forbidden the streaming of contents that could destroy the spirit of Liberation War, hurt religious sentiment, or goes against the country’s social and cultural values. The problem is nothing of these has been clarified.

Concerned people say people could be in danger because of this ambiguity. If implemented, the act, regulation and policy could be used to violate person’s privacy, and control freedom of speech, right to opinion and right to practice art and culture, as the Digital Security Act is being used. Over all, the government has taken a stride to take tougher steps to control the digital media.

Roughly, the proposed act and regulation say, any internet-based organisation has to set data centre within the territory of Bangladesh. Any person’s digital footprint could be tracked while their WhatsApp, Messenger and other personal communication media could be brought under surveillance. Information has to be provided on demand. The act will have provisions with jail term and fine but chance for an aggrieved person to take resort to the court is small.

Prothom Alo talked to Posts and Telecommunication Minister Mustafa Jabbar and State Minister for ICT Affairs, Zunaid Ahmed.

Mustafa Jabbar claimed nothing has been done contravening the Constitution. Instead of answering directly, he posed a counter question, should we allow communal attacks like those took place recently and anti-state activities going on in social media?

The Minister further said the Constitution has given freedom but that’s within the law. People can roam on the roads but not being stark naked.

Regarding the Data Protection Act, State Minister for ICT Affairs, Zunaid Ahmed told Prothom Alo the law is being made so that the country’s data remains within the country. The act is not being made to control people.

The government, however, highlighted several reasons to protect people during the passage of Digital Security Act. Since the passage of the act, overlooking different stakeholders’ objections to it, allegations are being brought about arrests and rampant harassment. Later, on 1 March 2021, Law Minister Anisul Huq told BBC Bangla that the government was taking step so that no person could be arrested or case filed against anyone before any investigation, if any allegation is brought.

Those who have been looking into the Data Protection Act, 2022, are concerned about three things. Firstly, compulsion for different multinational companies like Facebook, Twitter, Google and Amazon to save data within the territory of Bangladesh; secondly, endowing disproportionately too much power on the Executive; and thirdly, impunity for the government employees.

Under the act, data means, any information, knowledge, incident, conception or direction in a computer system. The Director General, controller, person involved with data processing or the data collector will enforce and implement the act. They are mainly the people appointed by the government.

According to the draft Data Protection Act, Bangladesh’s court, law enforcement agency and authorities will have access to data localised by the multinational companies.

The reason of apprehension for data localisation within Bangladesh territory is, there are allegations that authoritarian states use personal data to curb democratic movements. US-based non-profit organisation, Freedom House published a special report ‘User Privacy or Cyber Sovereignty’ in 2020. The report said big data can curb democratic movements.

The draft Data Protection Act further said the government could issue any directive to the Director General from time to time for the sake of the country’s sovereignty and territorial integrity, state security, friendly relations with foreign countries or public discipline.

Through this the government is being given disproportionately huge authority, say the concerned people.

If any person’s personal data gets released online, the victim cannot go to the court directly. The draft Data Protection Act says, the victim has to file an application to the DG. If the DG finds merit in the allegation, he can take legal action or take steps to for filing a case. But people will not have any means for redressal if the DG thinks no such incident has happened.

Another point is impunity to the government employees. Section 66 of the draft act says, no legal action could be taken against any government employee for his actions done in good faith that would incur any loss for anyone or apprehension of loss.

The State Minister for ICT Affairs, Zunaid Ahmed, however, told Prothom Alo that they would amend this provision.

BTRC made the draft of ‘Regulation for Digital, Regulation for Digital, Social Media and OTT Platforms’ at the directives of the court. The High Court pronounced the order following a writ petition filed by a certain Md Tanvir Ahmed.

Speaking to Prothom Alo, Independent University’s law department teacher Nuran Choudhury said, “As far I understand, the High Court’s directive was mainly about revenue. But there is nothing about revenue in the regulation though there are many other things there.”

He further said, “This Regulation would be the biggest hindrance to implement the Vision 2041 that talks about a knowledge-based society.”

Explaining the reasons of his apprehensions, Nuran Choudhury said if the regulation is implemented, not only Netflix and Amazon, Google too would lose interest to run their activities in Bangladesh. That is because the regulation says BTRC can order for withdrawal of any content in “special circumstances”. Not only this, BTRC could take punitive actions as well. For this, the Commission will not even have to take permission of the court. But there is no mention of what constitutes the “special circumstance”. Surely the two words will create scopes of misuse of the Regulation.

Though the draft Regulation talks about OTT Platform, it has actually included all the virtual service providers or apps. People use apps like Messenger, WhatsApp and Signal widely. These platforms keep the identity of message senders and receivers hidden. But the BTRC Regulation has made it compulsory to help identify the message senders and receivers.

Associate Professor of Law Department at Dhaka University, Quazi Mahfujul Hoque Supan recently told a discussion, organised by Fundamental Rights Protection Committee, that the Regulation used many words which have not been clearly explained or defined.

Concerned people said the Regulation proposed in Bangladesh has similarities with India’s Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Regarding this, proceedings of 17 cases underway in six courts in India.

Regarding the Regulation Mumbai High Court observed, “People would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression, if they are made to live in present times of content regulation on the internet with the Code of Ethics hanging over their head as the Sword of Damocles.”

Global Network Initiative (GNI), a leading technology company and global platform of rights bodies, expressed their concerns to the BTRC on 9 March about the proposed Regulation. GNI said the Regulation will create threats for freedom of expression. If it is implemented, it would create undue pressure on the service providing companies for controlling the contents and providing information.

There are concerns about the Ministry of Information and Broadcasting’s draft ‘Over The Top (OTT) Content-Based Service Delivery and Operations and Advertisement Broadcasting Policy, 2021’ as well. Though it is claimed that the objectives of the Policy is to ensure patronizing creativity, help creative artworks, and liberty of thought and conscience. But it has not explained several words and clarified its jurisdiction.

Popular web series director Ashfaq Nipun told Prothom Alo that what is being imposed in the name of OTT policy, there is no such thing in the world. There are some fuzzy issues in the policy. For example, hurting sentiment.

He said there is no certainty that none would feel hurt if a simple scene of a male and a female walk side by side is streamed. Anyone could be aggrieved in any way. If anyone faces trial only for this, the OTT platform authorities will spend most of their time in court.

* The report, originally published in the print and online editions of Prothom Alo, has been rewritten for English edition by Shameem Reza