The Information and Communication Technology (ICT) Act's controversial Section 57, which is set to be revoked, will return in new forms in the proposed ‘Digital Security Act 2017’.
In the face of widespread criticism from different quarters, the government has decided to abolish the Section 57, along with Sections 54, 55, 56 and 66 of the much talked about ICT law.
But, the draft ‘Digital Security Act 2017’ has incorporated some provisions which are in the controversial ICT act’s Section 57.
The final draft of the Digital Security Act 2017 received the nod at an inter-ministerial meeting at Bangladesh Secretariat on Wednesday. Officials engaged in drafting the law, said the draft will now be sent to the cabinet for approval and then to parliament to pass it as a law.
Information minister Hasanul Haq Inu on Wednesday said the Digital Security Act could be passed in the next winter session of parliament.
According to the proposed Digital Security Act, once the draft act will come into effect, the sections 54, 55, 56, and 57 of the ICT act will stand abolished.
According to the ICT Section 57, “If any person deliberately publishes or transmits or causes to be published or transmitted on the website or in electronic form any material which is fake and obscene or its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, or causes to deteriorate or creates possibility to deteriorate law and order, prejudice the image of the state or person or causes to hurt or may hurt religious belief or instigates against any person or organisation, then this activity of his will be regarded as an offence.”
For such an offence, according to the Section 57, the person can be jailed not more than 14 years or not less than 7 years and fined maximum Tk 10 million.
The definition of the offences under the section 57, the non-bailable provision and punishment drew huge criticism and had made the act controversial.
Following widespread misuse of Section 57, the police headquarters directed the police stations to seek permission from the higher authorities before booking any person in a case under the section.
Also, the ruling Bangladesh Awami League (AL) asked its activists to consult the party before suing any journalist under the section.
Legal experts who’ve already gone through the draft of the Digital Security Act said the offences defined under ICT’s Section 57 have been incorporated in various sections with varied range of punishment in the new Act.
Layer Jyotirmoy Barua told Prothom Alo that Section 57 is against human rights.
“The government said that the Section 57 will be scrapped. If the provisions are kept in different forms in different sections of the new act, how can you say that the Section 57 is abolished?” said Jyotirmoy.
According to the Section 27 of the draft act, if anyone or a group consciously publishes or transmits or helps do anything on website or in any other electronic form to hurt religious sentiment, the act will be considered a crime. The offenders will have to languish in jail for maximum five years or fined maximum Tk 1 million or both.
If the person commits the crime for the second time or third, s/he will be jailed for 7 years and fined maximum Tk 2 million or both. The offence is non-bailable here as well.
Asked about the matter, Supreme Court lawyer Shahdeen Malik told Prothom Alo that the law which calls ‘attack on sentiment’ a crime must be misused.
“What hurts whom totally depends on a certain individual and that is prone to the misuse.”
“If you really want to keep such provisions, there should be a provision that it must be reported to the magistrate first, instead of police. Once the magistrate is convinced, then he can refer it to the police,” he noted.
While talking to newsmen, the law minister, Anisul Huq, however, claimed that Section 57 will not be retained in the digital security act.
Those ‘checks and balances’ which are required to defend the freedom of speech will be preserved in the Digital Security Act as well as in the proposed Broadcast Act.
Section 28 of the draft digital act says that if a person commits any crime on any website or in any other electronic platform under section 499 of the Code of Criminal Procedure (CrPC-1860), the person will face maximum two years of imprisonment or will be fined Tk 300,000 or both.
If the person commits the crime for the second time or more, s/he will be imprisoned for maximum five years or fined Tk 1 million or both.
Section 499 of the Penal Code reads, “Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or published any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation or such person, is said, except in the cases hereinafter excepted, to defame that person.”
Whereas Section 30 of the digital security act says that if any person or group deliberately publishes or transmits on a website or in any other electronic platform any material which creates enmity and hatred among different sections or communities or hurts communal harmony, or creates instability or anarchy or the possibility of deterioration in law and order, the activity will be regarded as a crime.
If the section is violated, the person will be jailed for maximum five years or fined Tk 500,000 or both.
If the person commits the crime for the second time or more, s/he will be imprisoned for maximum seven years or fined Tk 1 million or both.
Another section of the draft act reads that if anyone promotes any propaganda and transmits that or helps do that against Bangladesh’s freedom fight or sentiment of the Liberation War or Father of the Nation, the person will be sentenced to life term in jail or fined a maximum 10 million or both.
Another section of the draft act says if any person sends or preserves any secret information by intruding into any government, semi-government, autonomous or constitutional body through computers, digital devices or digital networks or any electronic means, the activity will be regarded as a computer or digital espionage crime.
For such a crime the person will be sent for maximum 14 years to jail or fined Tk 2.5 million or both.
If anyone commits the offence for the second time or more, the punishment will be life imprisonment or a fine of maximum Tk 1 crore or both.
Besides, if any person violates the law even staying abroad, the offence will be taken into cognisance as an offence committed at home.
Information minister Hasanul Haq Inu said different terms of punishment have been proposed for different types of crimes in the draft Digital Security act.
A debate continues over the Section 57 for a long time as a number of people have already been harassed under the section.
Quoting statistics of the police headquarters, a Prothom Alo report on 2 August said as much as 42 cases were filed under the ICT act in January and the number of cases rose to 79 in June. A total of 391 cases were filed against 785 persons between January and June this year. Police have already arrested 313 of them. Most of the persons were sued under the Section 57.
Dhaka University professor Asif Nazrul Islam was sued under Section 57 with a Madaripur police station by shipping minister Shahjahan Khan’s nephew. The professor, however, secured bail recently.
Dwelling on the digital security act, Asif Nazrul said as the definition of the offences mentioned in the act is not clear, the ruling party’s leaders and activists can easily file case against any person whenever they wish.
The ICT act was enacted in 2006 and amended later in 2013, making it stricter.
The government started drafting the Digital Security Act in 2015. At first, it was named as Cyber Security Act-2015 and it was renamed as Digital Security Act-2016.
* This report, originally published in Prothom Alo print edition, has been rewritten in English by Toriqul Islam