"The Digital Security Act 2018: Who are the real victims"

Minister of Fisheries and Livestock, SM Rezaul Karim, stated on Thursday, 17 February, that he does not think the Digital Security Act (DSA) is making people fearful about posting their thoughts online.

He made the statement during a webinar titled "The Digital Security Act 2018: Who are the Real Victims?" The webinar was hosted by the Centre for Governance Studies (CGS), said a press release.

During the webinar, SM Rezaul Karim said that the number of Internet users in Bangladesh is increasing rapidly, so it is necessary to regulate online space better.

The minister emphasised the need for the DSA as it is the only law capable of deterring and punishing defamation in digital platforms in Bangladesh. He illustrated the kind of defamation, and humiliation people can suffer online, such as the spread of false humiliating images of people and false allegations spread in the form of viral videos. Regarding the controversial speech offence clauses in the law, the minister agreed that it is not just to file a case against someone just because they said something at the moment. He said the clauses that are being abused need to be investigated and concluded that no law is eternal, and everything is subject to change.

Other discussants of the webinar included Shirin Akhter MP, general secretary of Jatiya Samajtantrik Dal; Dr Asif Nazrul, professor of the University of Dhaka; Barrister Jyotirmoy Barua, Advocate, Supreme Court of Bangladesh; Zahirul Alam, head of News, NTV; Nurul Haque Nur, member secretary, Bangladesh Gono Odhikar Parishad and former VP of DUCSU.

The webinar was chaired by Dr Monjur Ahmed Chowdhury, chairman, CGS. The discussion was moderated by Zillur Rahman, executive director, CGS.

Zillur Rahman made the opening statement of the webinar where he quoted some findings of a study conducted by CGS in the application of the DSA. The study found that Journalists make up about 9.25% of all alleged criminals and almost 25% per cent of those whose professions could be determined. Compared to the total number of arrestees, the number of journalists arrested is disproportionately higher. An analysis of the cases filed by the victims revealed that the overwhelming majority of people were not directly affected by the complaints. Mostly the non- aggrieved parties that file the case are still among the ruling political party affiliated people. The number of politically affiliated individuals determined from the total accuser's list shows that 80% are from the Bangladesh Awami League.

CGS Chairman Monjur Ahmed Choudhury stated that the DSA has numerous issues such as the punishment stipulated in the clauses that are disproportionate to the crime; No warrant required to make arrests under DSA, etc. He remarked that the cyberspace of Bangladesh is becoming a dangerous minefield where people fear to speak their minds. The nation's people are not free to exercise their constitutional rights of freedom of speech and thought. He stated that the DSA is actively curbing these rights.

Shirin Akhter MP  stated that we require the DSA, which should not be abolished. She agreed that there might be loopholes in the law at the moment. According to her, it is the government's responsibility to ensure that these loopholes are ironed out and that people aren't falling victims due to these loopholes. According to the incumbent member of parliament, the role of the cyber security act is to protect against the illegal distribution of pornographic images of women and children, violation of personal privacy, online scams, inciting public unrest, distributing state secrets, and propagating religious bigotry.   However, these positive applications of the law are being drowned out by journalists' protests who frequently find themselves facing this law.

According to the MP, the existence of the law itself is not a human rights violation. Regarding the discourse stating that DSA cases and non-bailable offences, the MP pointed out that it is possible to get bail in these offences when the case goes to the high court. The MP also stated that she does not believe that people cannot speak up anymore. According to her, the DSA is not being used to punish every government critic. She also stated that journalists should not be afraid of writing the truth. The MP concluded that we require the DSA to ensure proper governance of a digital Bangladesh, but it needs to be improved to serve the people better. Therefore we should work to find the loopholes and fix them.

Dr Asif Nazrul reflected on Shirin Akther's point that DSA offences allow bail once it reaches the high court. He stated that high court bails are far too expensive to be afforded by the average Bangladeshi citizen. He also pointed out several inconsistencies in the application of the law. An example he gave involved his own experience of being charged under the act due to statements made by a fake account impersonating him on Facebook. He explained that the DSA clauses are essentially divided into two parts. One part is more technical and protects against computer-related offences such as hacking. The second and more controversial part is the clauses that punish "speech offences". According to the professor, the speech-related offence clauses need to be reexamined as the wording of the clauses are too vague and broad, causing them to be open to misinterpretation. He also stated that defamation cases in the DSA need to be tried under civil law, not criminal law. The professor demonstrated various examples of how the clauses can be misinterpreted and pointed out the inconsistent level of punishment if defamation is done online or in person.

According to Barrister Jyotirmoy Barua, the DSA is not the only act that is making the digital space dangerous. But it is the most significant. The ICT act 2006 already included cyber security issues. Other issues which are not included could have been added in that act. We did not need the DSA 2018 for it. The ICT act was sparsely utilized before 2013. However, the ambiguous wording of the DSA 2018, particularly under section 25, has allowed the deluge of cases illustrated in CGS's study. The Supreme Court Advocate went on to illustrate multiple procedural issues in the application of the DSA. Most of the cases under the DSA are being filed by third parties, not the claimant. However, this goes against existing criminal law policy where it is stated that defamation cases need to be filed by the claimant. Even though the courts shouldn't accept these cases filed by third parties, they are being pressured by political entities to take them to trial. The Constitution and criminal law also state that there cannot be multiple cases regarding the same issue. However, we see that in some districts, there are multiple cases filed against individuals for the same issue. Another issue the advocate pointed out was the lack of pre-trial sentencing policy in the law. Due to the lack of such policy, people are being detained indefinitely before trial without bail. According to the advocate, such lack of provisions in the law is being utilized to abuse the law. Regarding the DSA, the law is also too lenient to the failings of law enforcement but excessively harsh on the accused. The advocate stated that the courts are not addressing procedural defects on the part of law enforcement agencies. He concluded that the incompetence of law enforcement in applying the DSA needs to be addressed.

Zahirul Alam stated that journalists are the most victimized people under the DSA. Therefore, like other stakeholders, journalists are vigilant about the application of this law. He indicated that freedom of the press is obstructed due to fear of repercussions. Since it's not clearly stated in the law what can be said and not said, journalists are left unsure if they will be punished for their work. The journalist went on to say that the objective of this law is to inspire fear. This objective is made clear in the disproportionate level of punishment for such undefined crimes. The law also obstructs investigative journalism due to the restriction of recording using specific devices. TV and print media are fearing legal ramifications and self-censoring. Writers are being arrested and detained without bail indefinitely. The International community, like the UN, sees these human rights violations in a negative light. Zahirul Alam concluded that the government needs to make it clear which actions online are punishable under the law which are not. 

Nurul Haque Nur restated the shared notion among the participants that everyone thinks that we need laws. But laws need to be made to serve people. He cited the study by CGS that shows that most of the cases were filed by people in the ruling party. He stated that people's representatives who are not willing to listen to the criticisms of the people they represent shouldn't run for political office. He also elaborated on the issue of multiple cases being filed on the same issue against individuals. According to the former DUCSU VP, this is a clear indication of using the law to harass political opponents and dissenters. He further stated alleged cases of arrests made without proper investigation and arrests made just because people were on the friend list of another accused. Nurul Haque Nur concluded that the clauses in the law need to be amended, especially those curbing free speech.

The Digital Security Act (DSA) 2018 has drawn severe condemnation from human rights organisations at home and abroad in the past three years. The law has severely disrupted the freedom of expression in Bangladesh. Journalists and citizens of various walks of society have been victimised for voicing their opinion online. The Centre for Governance Studies (CGS) has tracked 835 cases with detailed information from January 2020 till 30 January, 2022, read the press release.