In most cases, the state prosecution has failed to prove charges brought about in various instances of cyber crime. Over the past seven years, the cyber tribunal in Dhaka has disposed of 768 cases. Only in 22 of the cases have sentences been passed. That amounts to 2.86 per cent. In most of the remaining 97.14 per cent of the cases, the accused have been acquitted of charges or the charges have been dismissed. These details were revealed in a review of various case documents including the daily case list of the cyber tribunal.
Many of these accused, however, had to remain in jail until the judicial proceedings were completed. Many even were taken into remand by the police. Certain accused persons as well as lawyers have said that many of the accused have had to make political, social or financial compromises with the plaintiff in order to remain in their localities. They have had to face financial, mental and physical sufferings in attending the judicial proceedings. And with no legal provision for compensation, these victims receive no recompense.
Over the past two years, Prothom Alo has gathered details of the cases disposed of from 2013 till October last year. A total of 2669 cases were lodged at the cyber tribunal in this span of time. The unsettled cases are now under trial at eight divisional cyber tribunals. There are around 3500 accused persons in these cases.
From the very outset, the media, human rights organisations, various political parties and others have been active against certain sections of the Information and Communication Technology (ICT) Act and the Digital Security Act. They said that these laws would suppress people’s right to speak out. The threat of harassment would create fear among the people and their fundamental rights would be infringed upon. Legal experts contend that the dismissal of over 97 per cent of the cases proves these apprehensions to be true.
The settled cases were filed under various sections of the ICT Act and the Digital Security Act. Of the 22 settled cases, 20 were filed under Section 57 of the ICT Act. The penalty under this act is 7 to 14 years imprisonment and a fine of Tk 10 million. Of the remaining two cases, one was filed under Section 54 and 66 of the ICT Act and the other under Section 23, 29, and 31 of the Digital Security Act.
Crimes under Section 57 of the ICT Act include publishing in electronic form, fake, obscene, prurient material or material defamatory to state or religion or an individual or organisation, etc. Alleging the misuse of this section, human rights and media activists as well as civil society have demanded that it be abolished. In 2018 the government abolished four sections of the ICT Act including Section 57. Then in the same year the government enacted the Digital Security Act against cyber crimes. Since then, all cyber crime cases are being dealt with under this law.
Final report in 69 per cent of the cases
Police has submitted the final reports of 529 of the 768 cases settled in the Dhaka cyber tribunal. After receiving the final reports, the court dismissed charges against the accused in 68.88 per cent of the cases.
Of the remaining settled cases, the court cleared the accused in 107 cases before the complaints were formed for the hearing. And the court acquitted the accused of all charges in 110 cases as the prosecution could not prove the allegations brought against them. In all, 97 per cent of the accused have been acquitted or cleared of all charges. There were around 850 accused persons in these cases.
Cases are filed for certain posts on social media, but those posts can no longer be found when the investigations are made. The accused remove the posts. Witnesses don’t turn up in many cases. That is why the charges cannot be proven eventuallyNazrul Islam, special public prosecutor (PP)
A review of the cyber tribunal records reveal that the police have given final reports in 499 cases filed under the ICT Act. And 468 of these were under Section 57. The remaining cases were under the Digital Security Act.
When asked about the matter, special public prosecutor (PP) Nazrul Islam told Prothom Alo, cases are filed for certain posts on social media, but those posts can no longer be found when the investigations are made. The accused remove the posts. Witnesses don’t turn up in many cases. That is why the charges cannot be proven eventually.
About the low rate of sentences, PP Nazrul Islam said, “There are quite a few reasons why the rate of sentences is low. I have noted 50 to 60 cases where there are all factors to ensure that sentences are passed. But then the plaintiff or the plaintiff’s parents or brother comes to us and says the matter has been resolved locally and we want the accused to be acquitted.”
Additional Commissioner (DB) of Dhaka Metropolitan Police, AKM Hafiz Akhter, told Prothom Alo, the main task during investigations is to collect evidence and submit this to the court. When there is any wavering in the witnesses, it is difficult to prove the allegations. A final report has to be submitted.
He said, “The main issue of cyber crimes depends on labs. We collected statements in the cases dealt with by DB. If the rate of sentences is low, then the matter of investigations needs to be looked into thoroughly.”
Khaled Hossain, a small businessman of Haraddah village in Satkhira sadar was arrested on 7 October 2019 under Sections 25 and 29 of the Digital Security Act. The local Bhomra union Awami League president Gazi Adul Gafur filed a case against him at the sadar police station, accusing him of posting a distorted picture of the prime minister in Facebook. Khaled was behind bars for a month after his arrest. He had to get bail from the High Court. Later police investigations revealed Khaled hadn’t posted any distorted picture of the prime minister on his Facebook page. On 30 September this year, the police submitted the final report, calling for him to be acquitted for charges.
Speaking to Prothom Alo over mobile phone, Khaled Hossain told Prothom Alo, “I did not post any distorted picture of the prime minister on Facebook, yet I had to go to jail for a month under the Digital Security Act. I was subject to extreme harassment.” He said from the beginning of this case till acquittal, he had to spend over Tk 100,000 in jail, to get bail from the High Court, repeatedly appearing at the Dhaka tribunal, and on food, stay and other expenses.
The plaintiff, local Awami League leader Abdul Gafur, speaking over mobile phone to Prothom Alo, said, “I filed the case against Khaled for posting a objectionable picture and writing about the prime minister. But the police did not inform me about the final report.”
Investigating officer of the case, sub-inspector (SI) of Satkhira police station Manik Kumar Saha, told Prothom Alo, the plaintiff was informed about the final report. CID carried out forensic tests on the mobile phone of the accused and found no evidence of the allegations. If so, why had the case been accepted? He replied, the plaintiff had submitted a screenshot of Khaled Hossain's Facebook post.
Human rights activists have advised not to arrest the accused in cases filed under these two acts until investigations are done because these laws leave ample scope for harassment. Human rights activists Nur Khan, speaking to Prothom Alo, said, "We have been speaking of these apprehensions from the very start. A person is arrested, spends time in jail, has to appear in court regularly, faces social castigation and then is acquitted of charges." Lessons should be learnt from this and no arrests should be made in haste before investigations.
94 per cent of the cases under Section 57
Prothom Alo's investigations reveal that 94.65 per cent of the under-trial cases at the cyber tribunal, filed under the ICT Act, have been lodged under the controversial Section 57. Of the 2261 cases under the ICT Act at the tribunal, 2140 are under Section 57. The rest are under the Digital Security Act.
The crimes mentioned in Section 57 have been included in sections 25, 28, 29 and 31 of the Digital Security Act. A total of 408 cases under the Digital Security Act are at the Dhaka Tribunal. Almost half of the cases under this act have been filed under sections 25, 28, 29 and 31. Section 25 deals with data or information that is attacking, false or intimidating in nature. Section 28 deals with hurting religious sentiment. Section 29 deals with defamation. And Section 31 deals with disruption of law and order.
Investigations carried out by Prothom Alo reveal that 10 cases filed seven years ago under Section 57 still remain unresolved. And 72 cases filed six years ago are still under trial. There are 125 cases that are five years old and 377 cases four years old.
Sensational cybercrime cases of Dhaka include those of writer Mushtaq Ahmed and cartoonist Ahmed Kabir Kishore, Odhikar secretary Adilur Rahman Khan, writer and publisher Shamsuzzoha Manik and his brother Shamsul Alam, journalist Prabir Sikder, researcher Afsan Chowdhury and others
Police arrested photographer Shahidul Alam on 5 August 2018 under Section 57 of the ICT Act, accusing him of using social media for instigation during the safe roads movement of the students. He was accused of spreading false propaganda on social media and in the local and foreign media, which was harmful to the state. He was accused of rendering the government questionable and misrepresenting the country as a failed one in the international arena. He was kept behind bars for over a month before being released on bail. The case proceedings have been suspended upon an order from the High Court.
Sensational cybercrime cases of Dhaka include those of writer Mushtaq Ahmed and cartoonist Ahmed Kabir Kishore, Odhikar secretary Adilur Rahman Khan, writer and publisher Shamsuzzoha Manik and his brother Shamsul Alam, journalist Prabir Sikder, researcher Afsan Chowdhury and others. Cases have been filed under the ICT Act and Digital Security Act against a multitude of opposition political activists, journalists, university teachers, researchers, human rights activists and common people. Journalist Prabir Sikder was recently acquitted from the case against him.
The BNP-Jamaat alliance government enacted the ICT Act in 2006 to deal with cybercrimes. Seven years later, in 2013, the Awami League government formed the cyber tribunal in Dhaka for the trial of crimes under this law. Till October last year, 2669 cases were submitted to this tribunal. As a result, all persons involved in these cases all over the country have to come to Dhaka and remain in the city for months on end at huge expense. And the number of cybercrime cases also increased rapidly. Then on 4 April this year the government formed cyber tribunals in seven other divisional towns of the country. The unresolved cases filed in different divisions outside of Dhaka were then sent to the respective tribunals. Presently there are 1362 cases under trial at the Dhaka cyber tribunal. And 20 cases have been suspended at the order of the High Court.
Cases for criticism
Prothom Alo studied news reports on 109 cases appearing in seven national dailies and the websites of a number of regional dailies from January to June 2020. This revealed that most of the cases were for criticism, defamatory statements, sharing distorted pictures and for spreading rumours. Over three-fourths of the allegations (85) were about adverse comments concerning the government, ruling party persons and ruling party activities. Some of the allegations were about demeaning religion or hurting religious sentiment. There are also charges for publishing incorrect news. But records of the cyber tribunal show that 97 per cent of these charges fail to stand in court.
According to the penal code, bringing about false cases is a punishable crime. But the Digital Security Act has no specific provision for punishment of those bringing about false charges. However, the cyber tribunal PP has said that if it is proven in court that the plaintiff has brought about false charges, the injured party can take legal action under the penal code and other laws.
Senior lawyer Ehsanul Haque Samaji feels that a provision should be added to the Digital Security Act so that no one other than the injured person or the authorised person can file a defamatory case. This will decrease the propensity to file false and motivated cases.
Cases for the sake of harassment
There has been controversy from the outset about the ICT Act and the Digital Security Act. Now questions have also arisen concerning the success in applying the law. There are also questions in some instances about the transparency and neutrality in the investigations. Human rights bodies from the beginning had been apprehending that the law would be used politically. Now it is observed that the law is not only being used for political reasons, but also as a tool to bargain and negotiate with political leaders.
It was seen that in most instances, the accused in these cases are acquaintances, neighbours or political rivals of the plaintiff. This law is also be used as a tool of harassment in land-related conflicts. For example, Abul Kalam of the village Mirgaon in Biswanath upazila of Sylhet filed a case under the Digital Security Act with the Biswanath police station in 2018 against three of his neighbours. He alleged that they had somehow opened his Facebook page and posted up pictures ridiculing the prime minister. The accused were Ataur Rahman, Atiqur Rahman and Mujibur Rahman. Atiqur Rahman and Mujibur Rahman were brothers. Mujibur Rahman lives in the UK.
The case has been on for four and a half years. Ataur Rahman claims that this was a false case file by Abul Kalam due to a land dispute. Ataur Rahman, claiming to be former joint general secretary of the union Awami League, speaking to Prothom Alo's Sylhet correspondent Manaobi Singha, said, "Why would I spread a picture ridiculing the party leader and prime minister of the country?"
Ataur Rahman said, "In the first phase the three of us got bail from the High Court for eight weeks. We had forgotten that the bail period ended and a warrant was issued in our names. We were arrested. Then we took bail again." He termed the Digital Security Act as a very "complex law" and said, "We spent around Tk 500,000 to get bail twice, to travel to and from Dhaka and appear in court. Now a move is on to reach a compromise."
Four and a half years on, now plaintiff Abul Kalam is also saying, "The case was filed out of misunderstanding. We are now working on a compromise. Money was spent on the case. As the matter is approaching a compromise, I will not say anything further."
Officer-in-charge (OC), posted to the Biswanath police station three months ago, Gazi Ataur Rahman, told Prothom Alo that there are preliminary investigations when allegations are made. If it is found that there is truth in the allegations, then the case is recorded. There is no scope of any innocent persons being harassed.
When asked about the matter, Supreme Court lawyer Tanjib-ul Alam told Prothom Alo these findings indicate that the long-standing apprehensions concerning these two laws are more or less proven to be true. It has not been possible to prove allegations in 97 per cent of the cases and so this means that the law is being abused. As to what can be done regarding the abuse of the law and to prevent harassment, he said that the detention clause can be reviewed. Until the investigations are complete, no one should be arrested. And if a case is to be filed under the non-bailable section, the government's permission must be taken. Then the fundamental rights of the people can be protected. If it is proven that the case is false or motivated, there must be provision for compensation. Then no one will use this law as a weapon.
* This report appeared in the online and print edition of Prothom Alo and has been rewritten for the English edition by Ayesha Kabir