All that is wrong with the Digital Security Act
The Digital Security Act (DSA) was enacted in the year 2018 purportedly replacing the controversial Section 57 of the Information and Communication Technology Act, 2006 (as amended in 2013). This new law has however shown a more restrictive approach towards freedom of expression in its wordings and application than the former one. This excessive interference with free expression has encouraged demands from people of many walks for the abolishment of the DSA. In response, the risk of unsupervised/unprotected use of cyberspace has often been presented as a justification for the legislation. In this backdrop, it is important to identify what is wrong with the Act, if any.
Article 39 of the Constitution of the People's Republic of Bangladesh recognises freedom of expression as a fundamental right. However, it presents a long list of restrictive grounds with the said guarantee. This plethora of limits on free expression has often been criticised for creating an array of disproportionate exceptions to the general rule, and not conforming to international standards. Although the provision may itself need revision, the explanation provided by the Constituent Assembly as to its application can help avoid arbitrary curtailment of freedom. The restrictions imposed, as they argued, on free expression must be reasonable, and are to be subjected to judicial review. Moreover, standards for applying the restrictive grounds can be derived from international law as Bangladesh has a commitment to uphold individual freedom of expression under international law. Along with these, comparative constitutional law standards of freedom of expression can be of aid in guiding a proper evaluation of the legislation.
Although the Act aims to ensure digital security, it ends up providing only a tautological definition by mentioning it as 'the security of any digital device or digital system.' This vague and overly broad definition results in arbitrariness when Section 8 empowers the Director General of the Digital Security Agency as well as the members of the law enforcement agency to remove or block information published in digital media if it threatens 'digital security'.
Apart from allowing the leeway of arbitrary imposition of censorship, the Act suffers from the vice of excessive criminalisation as well. The Act repeats (rather harshly) the old mistakes of criminalisation of defamation, sedition, and of hurting religious sentiments as it was done in the Penal Code 1860, a colonial holdover still in place.
Again, Section 25 of the DSA criminalises 'spreading information with an intention to affect the image or reputation of the country or to spread confusion.' This does not have any reasonable link with the ground of state security or other constitutionally permitted restrictive grounds. The relevant standard test as found in the case Brandenburg v Ohio is the criminalisation of expressions that cause imminent lawless action. Penalising for expressions that merely affect the reputation of the country or spread confusion is too wide to be justified by any domestic or international standard. Moreover, the vague and overly broad wordings of the provision can bring a chilling effect to the expressions on matters of public concern.
To avoid biases in free speech regulations, restrictions should be imposed in a content-neutral manner. In other words, expressions can only be limited if they ignite imminent violence or riots, but not otherwise. Section 31 of the Act elaborately covers the expressions that create hostility or disturb communal harmony. However, Section 28 of the Act again criminalises expressions that hurt religious sentiments. The presence of Section 31 renders that Section 28 covers nothing but restrictions based on ideological contents. Moreover, it is inconsistent with the concept of secularism, a fundamental principle and 'a guide to the interpretation of the constitution.' Similarly, Section 21 imposes restrictions based on "propaganda or campaign against liberation war, spirit of liberation war, father of the nation, national anthem or national flag." This again, is not only vague and overly broad but also a content-based restriction. To make the situation worse, these content-based restrictions are provided with a disproportionate penalty and categorised as cognizable and non-bailable.
Freedom of expression is essential for institutionalising a culture of democracy. It protects even offensive expressions from the unjustified control of the government, and creates a free marketplace of ideas. The DSA indiscriminately places the essential cyber security provisions such as digital fraud or hacking with provisions that lack justification to disproportionately limit free expression. A substantial revision is needed to make the law compatible with the standards in place.
The writer teaches law at the Bangladesh University of Professionals (currently on study leave).