The
Bangladesh Digital Security Act (BDSA) was passed into law by Bangladesh President Abdul Hamid in October of 2018. The Act succeeded the
Information and Communication Technology (ICT) Act of 2006 in governing cyberspace and laying out a framework for defining online crime and penalties for the same. The law was enacted despite several strong expressions of concern from within Bangladesh and other parts of the world. The Act has
drawn the ire of several communities around the world due to the newly defined restrictions on free speech that it contains. While it had been hoped that the BDSA would roll back some of the tools used to prosecute dissenters under the infamous Section 57 of the ICT Act, the new law allowed for more wide ranging suppression of dissent owing to vague, and at times absent, definitions of online activities that are criminal. While it is important to unwrap the nature of activities that are illegal under the new act, it is equally crucial to understand the powers given to the administration under the Act and how it has chosen to deploy them.
Bangladesh’s history of prosecuting ‘online crime’
Chapter VIII of the ICT Act codified the powers of investigating authorities to prosecute crimes under the Act and laid out parameters for Sessions Courts as well. The ICT Act declared crimes under the act as non-cognisable offences, ensuring that investigations and arrests were conducted only after a review by a Sessions Court. This meant that law enforcement agencies could not register FIRs simply by monitoring the social media platforms and required a court order to investigate a particular instance of dissent online. However, in allowing public complaints to the tribunal sufficient to begin the investigation, authorities ensured that instances of dissent could be investigated as they were allowed to file individual complaints as well.
Criticism has been leveled at the offices of the public prosecutor in Dhaka as well as at the investigating authorities for being inept at investigating and filing strong charge sheets and cases with the Tribunal. Of the cases presented to the Tribunal, the police filed a final investigation report for only 26% of cases, of which nearly 65% could not be tried as the probes were found to be carried out in disregard of proper procedure.
In 2013, the Government of Bangladesh introduced an amendment to the original act of 2006 that changed the complexion of criminal prosecution for online offences under the Act. Offences under the act were made cognisable, which meant police could pursue investigation and arrest suspects without a court-issued warrant. Additionally, the amendment set up a special tribunal known as the Cyber Tribunal to try cases under the ICT Act. The Tribunal was set up with stringent guidelines on the time it had to clear cases in an attempt to increase conviction rates. During the initial years of establishment of the Tribunal, a surprisingly low number of cases were actually filed in court. In the first three years of its establishment, there were under 200 cases filed under the Tribunal. The rate at which cases have been cleared have also been problematic, with
reports suggesting the conviction rate of the Tribunal stood at 3% till 2019. Criticism has been leveled at the offices of the public prosecutor in Dhaka as well as at the investigating authorities for being inept at investigating and filing strong charge sheets and cases with the Tribunal. Of the cases presented to the Tribunal, the police filed a final investigation report for only 26% of cases, of which nearly 65% could not be tried as the probes were found to be carried out in disregard of proper procedure. A special public prosecutor for the Cyber Tribunal also
claimed that the reports filed by the police had a lack of digital forensic evidence due to which the prosecution could not build a credible case and the accused was acquitted after the trial. The issues with processing such cases have been further compounded by the fact that most records of the Cyber Tribunal are not available publicly.
Clamping down on free speech
Analysis of overall statistics suggests that law enforcement agencies in Bangladesh have been lenient with prosecuting and investigating cases under the ICT Act. However, scrutinising individual cases of prosecution against cases of dissent online, under the infamous Section 57 presents a different picture. In the last few years, the administration in Dhaka has brought a number of cases against poets, journalists and activists who have taken to social media to question the government’s authority. Reports show that a majority of the charge sheets filed since the Cyber Tribunal was set up are under Section 57 of the ICT Act.
According to a Special Prosecutor in the Cyber Tribunal, 65-70% of the cases filed under Section 57 do not stand a chance of being proven in court but are merely used to intimidate and harass individuals. The police have been aggressive in pursuing several cases that prima facie cause no harm to society, including an investigation that
led to the arrest of a 15 year old boy for defaming Islam and ones that
led to arrests for merely ‘liking’ a Facebook post that was deemed illegal. There have been several cases where journalists and media persons have been intimidated with cases under Section 57; the editor of
Daily Star, one of Bangladesh’s most widely read dailies, was hit with 83 different lawsuits with damages amounting to $8 billion in under two weeks in February 2016. Section 57 had become a tool of fear used by majority groups and the police to suppress dissent and free speech on social media. The Bangladesh government has pushed for even stricter enforcement of laws against online crime,
approving a new unit last year to proactively curtail and investigate cases of ‘online crime’. The new unit will see a 700% increase in personnel from the previous division tasked with these cases and is likely to be equipped with advanced keyword search algorithms to be able to identify instances of ‘criminal speech’ on social media to being investigation and prosecution.
In the last few years, the administration in Dhaka has brought a number of cases against poets, journalists and activists who have taken to social media to question the government’s authority.
Prosecuting dissent under the Digital Security Act
The Digital Security Act was created to assuage critics of Section 57 of the ICT Act and came into being after the Law Commission in Bangladesh decided to review the Section. Contrary to expectations, the BDSA casts an even wider net over free speech and dissent than its predecessor. The Act not only broadens the scope of what constitutes online crime but also takes away the few legal protections granted under the ICT Act.
The BDSA declares acts of ‘online crime’ as not only cognisable but also non-bailable offences. The Act does not allow the Cyber Tribunal to use any standard tests in judicial process that can be used to grant bail in certain circumstances. Additionally, the Act gives the investigating officer the power to enter and search premises, physically search suspects, seize any equipment or material that is suspicious and arrest suspects in the investigation without a warrant. That Act also reads in a manner that allows investigating officers to ask service providers and other intermediaries for data without requiring a court-obtained warrant or subpoena. The Act nullifies virtually all safeguards enshrined in the Criminal Procedure Code in Bangladesh, protections which are afforded to suspects in investigations on far more heinous crimes. The Act also allows for blatant disregard of the principle of necessity and proportionality enshrined in the legal system.
The BDSA declares acts of ‘online crime’ as not only cognisable but also non-bailable offences. The Act does not allow the Cyber Tribunal to use any standard tests in judicial process that can be used to grant bail in certain circumstances.
While giving police a free hand to investigate and arrest, the Act also places strict timelines for completion of investigations and trials. There is a
60-day window for investigations afforded to police officers beyond which lengthy reports have to be filed with the Tribunal for any extension, even after which the investigation can be extended to 105 days. Supporters of these timelines claim that it will help improve conviction rates and bring quick justice to the victims of cybercrime. However, with the range of powers at the disposal of investigating authorities, these stringent timelines encourage the police to aggressively pursue arrests and then convictions while disregarding due process enshrined under various procedural codes. The government has already displayed its intent of increasing the resources that investigating agencies will have to identify and look into cases of ‘online crime’, which combined with tight schedules for winding up investigations will not only condone but also prompt abuse of powers by law enforcement authorities.
Effects on free speech
It would be unfair to attribute clamping down on free speech to the Awami League government alone, but in their second term this administration has virtually removed all protections given to the freedom of expression in the country. The chilling effect that such policy decisions will have on free speech and dissent in Bangladesh will be severe and likely irreversible in the near future. Dhaka has progressively become more brazen in attempting to stifle political dissent and protest which has faced little criticism from inside Bangladesh itself. The broad definitions of criminal activities online, powers given to the police under law and the resources that investigating authorities are being granted are enough to ensure that the administration can suppress discontent with impunity.
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