Digital Security Act: Scrapping 2 sections, amending 8 recommended

The recommendations sent by the UN Office of the High Commissioner for Human Rights to the government regarding Bangladesh’s Digital Security Act, calls for the complete scrapping of two sections of the act (21 and 28) and amendment of eight.

Most of these sections concern freedom of expression and journalism, and are not congruent with the International Covenant on Civil and Political Rights.

While talks have been on between the government and the UN Office of the High Commissioner for Human Rights (OHCHR) regarding the law since 2019, there has been no significant progress in the amendment of the act. Meanwhile, the cases and arrests against journalists under this law continue unabated.

On 29 March, a case was filed under the Digital Security Act (DSA) against Prothom Alo editor Matiur Rahman and the next day, in the same case, journalist Samsuzzaman was sent to jail (later on 3 April released on bail).

On 31 March, the UN High Commissioner for Human Rights Volker Turk called for the act to be suspended and necessary amendments made to sections of the law in keeping with international human rights laws.

Many in Bangladesh have demanded that the law be abolished. In this regard, law minister Anisul Huq on Sunday told journalists, this law in no way can be abolished. It is necessary. However, it can be amended if need be.

The law minister repeatedly referred to the law being misused. However, he did not mention any specific plans to suspend the law or make amendments. When asked when the law would be amended, law minister Anisul Huq told Prothom Alo on Monday, the recommendations made by the UN Office of the High Commissioner for Human Rights are under consideration. The matter is also being discussed with the civil society in the country. Steps will be taken in accordance to the outcome of the talks.

After reviewing the Digital Security Act, the UN Office of the High Commissioner for Human Rights in June last year submitted their recommendations to the government of Bangladesh. A copy of the recommendations, called ‘OHCHR Technical Note to the Government of Bangladesh on Review of the Digital Security Act’, indicates that they have been holding meetings and discussions with the Bangladesh government since 2019 on the issue. In those discussions, the government said that they are ready to accept expert opinion of the organisation in order to review the act.

Despite opposition from within the country, the government went ahead to enact the Digital Security Act in 2018. Since then, over the past four and a half years, it has been often used to suppress dissenting views. The law had been mostly used against politicians, journalists and teachers with dissenting views. There are also allegations of it being used proportionately high against the minorities. While there is no official update on this, according to several non-government agencies, cases have been filed under this law against under at least 2,800 persons.

Points for consideration

The OHCHR recommendations have an overall premise on what should be taken into consideration when amending the act. They feel that the general rule should be the accused should remain free when the case is in adjournment or under trial and during a provision should be added to the law as an alternative to detention.

The recommendations also said that bail and the deposit must be within affordable means. In exceptional cases, pre-trial detention should be in accordance with the degree of the offence of each person. The pre-trial detention period should be as brief as possible with arrangements for regular review. These relevant criteria must be specified in the law and not as unclear and vague like ‘public safety’.

If the court turns down the bail appeal of any accused, it should not in any manner influence his presumed innocence. The logic or necessity of detention at repeated intervals  should be reexamined in accordance to Article 14(2) of the International Covention on Civil and Political Rights or ICCPR. If there is no possible alternative, then the accused must be tried as speedily as possible or released.

The OHCHR recommendations reminded that in 2018, Bangladesh had accepted the recommendations of the Universal Periodic Review of the UN Human Rights Council. The recommendations speak of review and amendments to ensure freedom of expression and to render the laws related to freedom of expressions completely in accordance with international human rights laws.

Top on the list of areas of particular concern in the DSA is the criminalisation of various legitimate forms of expression. The OHRCR recommendations sate that there is a lack of clarity in this definition of criminalisation and it is very broad and the punishment extreme. There is also provision for life imprisonment if the offence is committed for the second time. Referring to Section 19 (3) of the International Convention for Civil and Political Rights, of which Bangladesh is a signatory (2000), OHRCR said that the cause of the offence must be very specific for the general people and the law enforcement to understand. Unless it is clearly specified and there is room for it to cover a wide area, then there is added risk of abuse in the implementation of this law.

Recommendations to scrap two sections

OHCHR has recommended the scrapping of two sections of the DSA. These are sections 21 and 28. Section 21 states that, “If any person by means of the digital medium makes or instigates to make any propaganda or campaign against the liberation war of Bangladesh, the spirit of the liberation war, father of the nation, the national anthem, or national flag, then such act of the person shall be an offense. Such person shall be punished with imprisonment for a term not exceeding ten years or/with a fine not exceeding Taka one crore or/with both. If any person commits the same offense for the second time or repeatedly, he shall be punished with imprisonment for life or/with a fine of Taka three crore.”

In its recommendations sent to the Bangladesh government, OHCHR said that such a broad terminology will make legitimate expression an offence. It also mentions the general concern of the human rights committee about curbing freedom of speech concerning respect towards the authorities, the national flag or symbols.  According to the committee, the legitimate aim of criticizing heads of state and the highest political authority and other public personalities and the identity of the criticised persons cannot be the only basis for determining the stringency of the punishment under this act. 

The law against expressing views on historical matters violates freedom of expression.

Pointing out that Section 21 of the Digital Security Act is not in keeping with Section 19(3) of ICCPR, OHCHR recommended that this section be removed. They also said that if anyone has already been accused under this section, the Bangladesh government can consider acquitting him of charges and providing adequate compensation.

Section 28 of the DSA states that if any person or group made publication, broadcast, etc. of information on the website or in any electronic format that hurts the religious values or sentiment, with an intention to hurt or provoke the religious values or sentiments, then such act of the person shall be an offence. Such person shall be punished with imprisonment for a term not exceeding five years or/with fine not exceeding Taka ten lac or/with both. If any person commits the offence for the second time, he shall be punished with imprisonment for a term not exceeding ten years or/with fine of Taka twenty lac or both.

OHCHR said that this section lacks the required clarity. Bangladesh Penal Code (295A) is clear on this (mentioning deliberate and malicious intention of outraging the religious feelings of any class), but this is not stated in the DSA. In the Penal Code there is provision for a two-year sentence or fine, but this punishment in DSA is much more severe. Here to the general view of the human rights committee is that it is not compatible with Article 19 (3) of ICCPR. The convention mentions when it will be considered an offence. That means when it is tantamount to inciting discrimination, adversity or violence, then it is an offence.

OHCHR has recommended the scrapping of DSA's Section 28 and if anyone has already been accused under this act, to acquit him from the charges and consider adequate compensation.

Recommendation to amend Article 8

OHCHR highlighted the review of DSA sections 8, 25, 27, 29, 31, 43 and 53, recommending that these be amended.

Section 25 of the act speaks of 'offensive, false or threatening data-information and Section 29 of 'defamatory information'. OHCHR said that these are considered civil offences in many other countries.

These sections haven't been taken into consideration the argument for truth or public interest as in the human rights committee proposal. Comparing it to the Bangladesh Penal Code, they said that the Penal Code recognises the public interest argument.  In Article 499 of the code, the punishment for this offence is two-year imprisonment or a fine. But under DSA, the sentence is much more stringent, three years or a fine. And if the offence is repeated, then the sentence is increased to five years or fine.

OHCHR said in light of the international human rights law, defamation should not be considered an offence, otherwise the media will be discouraged from publishing important and essential information for public interests. A threat to freedom of expression is created and journalists are obstructed from carrying out their legitimate duties. Defamation should be settled by civil laws. Only in serious instances is the criminal code applied, but it must be kept in mind that imprisonment is not an appropriate law for defamation.

Regarding Section 27 of the DSA pertaining to cybercrimes, OHCHR said that the provisions under this section are broad and extensive, and do not help the general people clearly understand the question of controlling their behaviour. The terminology used gives rise to apprehension that cybercrime can be considered terrorism.

OHCHR also commended that collecting information with the intent of hampering friendly ties with any foreign country, is not an adequate basis to be considered a crime. They said that Article 15 of ICCPR is not consistent with the DSA clause in this regard. They recommend that in defining terrorism, the definition directed by the Special Rapporteur of Human Rights and Fundamental Freedoms should be used.

Section 32 of the DSA regarding 'breaching secrecy of the government' means any offence under the Official Secrets Act. The penalty for this is a 14-year prison sentence. OHCHR has expressed its concern concerning the extensive application and reach of this section. They say that this may have a negative influence on investigative journalism. And the role of investigative journalism in ensuring transparency and accountability in state activities is important.

OHCHR has recommended that this section be made congruent with the ICCPR. They also said that an amendment should be made in such a manner that the protection of truth and public interest arguments and whistleblowers, is ensured.

Article 8 of the DSA states that in certain circumstances, the police and digital security agency can ask the Bangladesh Telecommunication Regulatory Commission (BTRC) to block or remove data-information. OHCHR said that the power bestowed in this section is outside of the limited approved in ICCPR.

There is no obstacle to suspend the act in the process of reforms and amendment. But there must be legal and actual need for this to be done
Shafiq Ahmed, former law minister

The section lacks clarity and the definition of the offence is so broad that it can be applied to an excessive and disproportionate degree, unnecessarily harassing a large number of people. The section also allows the removal of content that is not even unlawful or an offence.

OHCHR feels that BTRC is not an independent body, but an executive one. The authority to take decisions to block or remove content should be bestowed on an independent body, preferably judicial.

Article 43 of the DSA gives the police unlimited power to search, seize and arrest, OHCHR mentions in the recommendations. They say that in investigating a crime, search and arrest without prior approval of the court is contrary to the recommendations of the human rights committee. This power is inconsistent with ICCPR Article 19(3). And so the power of the investigating officer must be clearly specified.

Certain clauses in Section 53 of the DSA mention offences which are bailable and non-bailable in this act. The non-bailable sections of 21, 27, 28, 31 and 32  are included and OHCHR has recommended that these be amended or scrapped. Regarding the matter of being non-bailable, they said it has no remedial measures for those awaiting trial.

Pointing out that around 80 per cent of those jailed in Bangladesh are pre-trial prisoners, they said that in international human rights laws, pre-trial detention is an exception, not a rule. In these sections, there is no provision to evaluate the detention of the under-trial prisoners separately and to re-evaluate these at regular intervals, and so this is incongruent with Articles 9 and 14 of ICCPR.

OHCHR considers it a normal rule to ensure release until the matter is tried. In alternative cases, they recommend bail with reasonable deposit, separate consideration for each under-trial person in detention, exceptions based on evaluation and ensuring speedy trial of these in pre-trial detention. They also feel vague such a 'public safety' should not be used in evaluation or extensive application.

'No obstacle to suspend the act'

The UN High Commissioner for Human Rights Volker Turk called for the immediate suspension and amendment of the DSA. When asked about this, former law minister Shafiq Ahmed told Prothom Alo that there is no obstacle to suspend the act in the process of reforms and amendment. But there must be legal and actual need for this to be done.