The letter also reads the draft regulations seek to implement a content governance framework devoid of adequate judicial oversight, clarity and predictability, and integration of human rights and due process.
It said the regulations are inconsistent with the international human rights framework, including the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).
The letter said the regulations contravene widely endorsed principles for content governance rooted in international human rights standards including the Manila Principles on Intermediary Liability and the Santa Clara Principles on Transparency and Accountability in Content Moderation.
Efforts by telecommunications regulators to change regulations to address concerns around “over-the-top” (OTT) services can have significant negative impacts on human rights as well as broader principles such as network neutrality, if done improperly.
The regulations appear to mirror many of the provisions in the problematic Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, in India.
The Indian rules are an example of a framework that hurts democracy and must not be emulated. They have been criticised for jeopardizing human rights, with demands for withdrawal from many quarters. The Indian rules are currently facing multiple legal challenges before Indian courts, which have issued interim orders against the Indian government to not enforce significant portions of the rules.
"We respectfully call upon the BTRC to withdraw and reconsider the Draft Regulations, as they erode digital security and put human rights and freedoms at risk. The BTRC must frame its consultation around the exact problems it wishes to address and engage with stakeholders on what regulatory options are best suited to address them, rather than forcing through one, overbroad set of regulations."
In anticipation of a sustained and meaningful consultation with all stakeholders on any further development of the regulatory framework for internet intermediaries and digital services available in Bangladesh, the organisations highlight the following initial key concerns with respect to select provisions in the draft regulations:
The absence of a safe harbor provision and specter of penalties for intermediaries, and their employees, will have a chilling effect on free speech and result in over-censorship.
The traceability requirement will undermine end-to-end encryption, violate privacy and thwart free expression. Further, vulnerable individuals and communities, including journalists, dissidents and activists, would increasingly be at risk of being targeted.
The mandate for intermediaries to block an overbroad and ambiguous range of content, including content that is “insulting”, “harmful”, “offensive” or “breaches secrecy of the government”, is illegitimate, an unreasonable restriction on the fundamental right to freedom of expression, and categorically against the Necessary and Proportionate.
Truncated timelines for content removal would result in over-censorship and/or excessive prior restraints, arbitrary decisions, erosion of due process, contravention of democratic principles, and unreasonable restrictions on the basic human right to freedom of opinion and expression under Article 19 of the UDHR and ICCPR.
Overbroad definitions (e.g., OTT is defined as “content, a service or an application that is provided to the end-user over the public internet”) in an attempt to implement a one-size-fits-all approach to regulate multiple services that are functionally, technically, and operationally different, are fundamentally flawed.
The government’s plans to adopt a Code of Ethics which is binding on all media, defined broadly, which effectively gives the Ministry of Information unfettered power to set content rules for the media, contrary to international law.
Legislative backing and parliamentary approval is important for implementing a framework with such far-reaching and transformational impact on fundamental rights and internet freedom. The Draft Regulations should involve prior consultation with all stakeholders, in line with democratic procedure and international best practices.
Further, sustained, meaningful and in-depth consultation with stakeholders is a prerequisite to the development of a rights-respecting framework.
"We urge the BTRC to engage in such a process prior to developing regulations for intermediaries and digital services that would impact people’s rights and freedoms, and indeed democracy itself," the organisations said.
Forty five organisations are: Access Now, Article 19, Asian Forum for Human Rights and Development (FORUM-ASIA). Association for Progressive Communications (APC), Business & Human Rights Resource Centre, CCAOI, Center for Democracy & Technology, Center for Media Research - Nepal (CMR-Nepal), Collaboration on International ICT Policy for East and Southern Africa (CIPESA), Committee to Protect Journalists, Digital Democratic Collaboration (DACol), Digital Empowerment Foundation, India, Electronic Frontier Foundation, Encrypt Uganda, Global Partners Digital, Global Voices, Human Rights Watch, Innovation Solution Lab, International Council of Indian Muslims (ICIM), Internet Freedom Foundation, India, Internet Society, Internet Society Catalan Chapter (ISOC-CAT), Internet Society Delhi Chapter, Internet Society Hyderabad Chapter, Internet Society Venezuelan Chapter (ISOCVE), Internet Society Kenya Chapter, Interpeer Project, Kapil Goyal (Individual), KICTANet, Kijiji Yeetu, Last Mile4D, Manushya Foundation, National Corruption Control & Human welfare organization (NCCHWO),India, OpenMedia, Open Knowledge Foundation, Organization of the Justice Campaign, PEN America, Ranking Digital Rights, SFLC.in, Simply Secure, Tech for Good Asia, The Tor Project, UBUNTEAM, Vaultree and Wikimedia Foundation.