Choking the lifeblood of democracy
"The only security of all is in a free press," Thomas Jefferson, famous American statesman and the country's third president once said.
His quote holds more relevance now as the voice of journalism has increasingly been constrained in Bangladesh thanks to various laws which the journalist community and civil society deem as weapons to rein in press freedom and curb free speech.
Currently, there are at least nine laws in Bangladesh that directly or indirectly affect journalism. Some, like the Penal Code-1860, are more than a century old and deal with issues ranging from defamation to the spread of propaganda.
But the laws that were formulated in the last decade pose a far greater threat to independent media, which is considered the lifeblood of democracy, good governance, rule of law and accountability.
The government, meanwhile, is preparing four more legislations -- all currently in draft form -- which experts see as the latest step in curtailing freedom of speech and the press further adding to the already existing Digital Security Act, a law that has been misused and abused to curb press freedom and target individuals using flimsy criteria.
"The government is formulating different kinds of laws one after another in Bangladesh which are making journalism very difficult in recent times," said Ali Riaz, a distinguished professor of political science at Illinois State University (ISU).
"Enacting these laws are intrinsically connected to the increasing autocratic bent of the incumbent. These are intended to criminalise dissent, strengthen the culture of fear, and protect the beneficiaries of this repressive system of governance," he told The Daily Star.
Journalism and free press in Bangladesh are under enormous pressure with journalists often subjected to physical violence, threats, and other forms of harassment as numerous attacks on newsmen have taken place in the last decade. And the laws are creating an atmosphere of fear and self-censorship, members of the journalist community and right defenders said.
The country's position in the World Press Freedom Index is not encouraging either. Bangladesh dropped 10 spots to rank 162nd out of 180 countries in the index, according to Reporters Without Borders, also known as Reporters sans Frontières, or RSF.
In fact, the country is one of the 28 in the world which saw "very bad" press freedom violations last year.
MAJOR LAWS REGULATING THE MEDIA
The laws that directly or indirectly affect media are i) The Penal Code, 1860 (Section 499—Defamation); ii) The Code of Criminal Procedure, 1898 (Sections 99, 108, 144); iii) The Official Secrets Act, 1923; iv) The Contempt of Court Act, 2013; v) The Printing Presses and Publications (Declaration and Registration) Act, 1973; vi) The Press Council Act, 1974; vii) The Newspaper Employees (Conditions of Service) Act, 1974; viii) Information and Communication Technology Act, 2006; ix) and The Digital Security Act, 2018.
Besides, four more laws on the cards are the (Draft) Bangladesh Telecommunication Regulatory Commission (BTRC) Regulation for Digital, Social Media and OTT Platforms, 2021; the (Draft) Over-the-Top (OTT) Content-Based Service Providing and Operation Policy, 2021 (by ICT Division); the Data Protection Law, 2022; Press Council (Amendment) Act.
Of the laws, the Digital Security Act is the hugely restrictive and controversial law that has become a powerful tool to stifle any form of perceived criticism, including independent journalism scrutinising the action of government officials.
However, the DSA did not spring out of a vacuum. It was preceded by the Information and Communication Technology (ICT) Act-2006 under the BNP-Jamaat government.
The law, which was amended during the Awami League term in 2013, was vehemently criticised by rights activists, journalists, legal experts and free thinkers because several provisions of the law, especially Section 57, were too vague or criminalised legitimate expression.
They said the section goes against people's right to freedom of expression and free speech and it contains vague wordings, allowing its misuse against newsmen and social media users.
Section 57 authorised the prosecution of any person "who deliberately publishes or transmits or causes to be published or transmitted in the website or in any other electronic form any material which is false and obscene and if anyone sees, hears or reads it having regard to all relevant circumstances, its effect is such as to influence the reader to become dishonest or corrupt, 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 instigate against any person or organisation".
Before its 2013 amendment, the maximum punishment for offences under the section was 10 years' imprisonment and a fine of Tk 1 crore. Besides, police had to seek permission from the authorities concerned to file a case and arrest any person under the law. After the amendment, the maximum jail term was raised to 14 years. And law enforcers were empowered to make arrests without a warrant.
Since 2014, the law has been widely used to arrest and prosecute individuals for expressing their views online. Scores of people were arrested in five years till 2018 under section 57 for criticising the government, political leaders, and others on Facebook, as well as in other social media.
According to a report of Human Rights Watch in 2018, the police submitted 1,271 charge sheets to the Cyber Tribunal in Dhaka, claiming sufficient evidence to prosecute under Section 57 of the ICT Act.
Following a barrage of criticism, the government in 2017 announced that Section 57 would be removed as a new "Digital Security Act" was in the pipeline.
DIGITAL SECURITY ACT
In September 2018, the Digital Security Act was passed in parliament despite stiff opposition from the journalist community and rights campaigners as they found some sections of the new law retained those problematic sections of the ICT law with even harsher penalties.
They also said the law contains vague and overly broad definitions that could be used as a weapon to muzzle contrarian voices from exercising their freedom of expression, particularly the press's, although the government insisted that the law was necessary to combat cybercrime.
The law allows police to arrest anyone without a warrant if they believe that an offence under the law has been, or is being, committed, or if they believe there is a possibility of a crime and risk of evidence being destroyed.
The law carries prison sentences of up to 14 years for any person trying to secretly record information inside government buildings. Critics say this makes investigative journalism into any government corruption almost impossible.
It also allows for up to 10 years' imprisonment for spreading propaganda opposing Bangladesh's Liberation War, and its national anthem and national flag via digital devices. Any repeat crimes carry the maximum penalty of life imprisonment.
The journalist community including the Sampadak Parishad (Editors' Council) has been expressing concern over nine sections (8, 21, 25, 28, 29, 31, 32, 43 and 53) of the act.
In trying to make a law to prevent crimes through digital devices and provide security in the digital sphere, the act ends up policing media operations and controlling the media content. Sections 8, 21, 25, 28, 29, 31 and 32 are contradictory to freedom of the press, which is guaranteed by the constitution, it said.
True to their fear, journalists and politicians were disproportionately victimised by this law. Besides, students, teachers, politicians and common people are reportedly being harassed, arrested and prosecuted under this controversial law.
As many as 2,244 people have been accused in 890 cases between January 2020 and February 2022, according to the Centre for Governance Studies (CGS), a non-government think-tank.
And, at least 842 people were detained in those two years, said the CGS in a report titled "The Unending Nightmare: Impacts of Bangladesh's Digital Security Act-2018".
The report also recorded the occupations of 315 of the arrestees: 59 were journalists and 47 were students.
A study by ARTICLE 19, a UK-based human rights body, revealed in January last year that 197 cases were filed under the DSA in 2020 alone, implicating 368 people, including 79 journalists, for expressing their opinions.
Meanwhile, nine aggrieved citizens including Dhaka University teachers and Supreme Court lawyers on January 19, 2020, filed a writ petition with the High Court as a public interest litigation challenging the legality of two sections, 25 and 31, that they claimed hamper the freedom of expression and thought.
According to Section 25 (1), "If any person using a website or any digital device-(a) deliberately or knowingly distributes any information or data that is attacking or intimidating in nature; or if a person publishes or distributes any information despite knowing that it is false to irritate, humiliate, defame or embarrass or to discredit a person.
"(b) Damages the image and reputation of the State or spreads confusion or with the same purpose publishes or distributes fully or partially distorted information or data despite knowing that it is false, and if any one assists in such actions, then all such actions of the individual will be considered a crime."
Section 31 says, "If a person deliberately publishes or broadcasts via a website or any digital platform anything that creates enmity, hatred or acrimony among different classes or communities, or upsets communal harmony, or creates unrest or chaos, or causes or begins to cause deterioration in law and order, then that activity of the said person will be considered a crime".
Following the submission of the writ, the High Court issued a rule questioning the legality of the two sections. The bench of Justice Sheikh Hassan Arif and Justice Md Mahmud Hassan Talukder asked secretaries to the ministries of law, and information and communication technology to respond in four weeks.
However, the HC could not yet hold hearing of the rule due to reconstitution of the jurisdiction of the bench led by Justice Sheikh Hassan Arif and the Covid-19 pandemic.
Writ petitioners' lawyer Mohammad Shishir Manir placed the case before another HC bench for its hearing. This bench is yet to fix any date for hearing the matter.
"I hope the High Court bench will start hearing of the rule in January next year," Shishir Manir told The Daily Star.
On several occasions, Law Minister Anisul Huq acknowledged that the law was misused and abused in certain cases and steps would be taken to stop it.
In a new development, the Information and Communication Technology Division has proposed that no case can be filed under the Digital Security Act without the express approval of a special cell headed by the divisional commissioner.
It sent a proposal recently to the law ministry for vetting.
LAWS IN THE PIPELINE MAY STIFLE FREEDOM OF EXPRESSION
At the moment, three draft laws are in the pipeline. One deals with digital, social media, and OTT platforms, the second with social media and streaming services, and the third with data protection.
In February, the Bangladesh Telecommunication Regulatory Commission (BTRC) published the draft regulation titled "Bangladesh Telecommunication Regulatory Commission Regulation for Digital, Social Media and OTT Platforms, 2021" on its website for public comment.
Soon after the draft's publication, the regulation came under a flurry of criticism.
Similar to the DSA, this regulation prohibits any content that "creates unrest or disorder or deteriorates or advances to deteriorate law and order situation" or "is offensive, false or threatening and insulting or humiliating to a person".
It also forbids content that threatens the "unity, integrity, defence, security, or sovereignty of Bangladesh, [and its] friendly relations with foreign states", content that goes against the Liberation War of Bangladesh, the spirit of the Liberation War, the father of the nation, the national anthem or the national flag, or anything that "threatens the secrecy of the government".
According to the regulation, all social media intermediaries will be required to have a resident complaint officer, a compliance officer to ensure due diligence, and an agent to liaise with law enforcement agencies and the BTRC.
The compliance officer will be tasked with making sure that the conditions stated in the regulation are upheld. Should they fail to comply with those standards, service providers will be punished according to Bangladesh Telecommunication Regulation Act, 2001 which has fines up to Tk 300 crore and imprisonment of up to 5 years.
The draft regulation defines service providers as those who provide "content, a service, or an application to the end user over the public internet". This lumps together social media platforms, web publishers, and on-demand, over-the-top services.
Soon after the publication of the draft, Transparency International, Bangladesh, an anti-graft watchdog, in a press conference, said some of its sections can be used to "gag the freedom of expression and make Bangladesh a surveillance state".
This will also put journalists, dissidents, and rights activists at risk and compel the service providers or intermediaries to practice self-censorship, it said.
"The regulation has the potential to substantially undermine freedom of expression and right to privacy, intensify surveillance efforts of the government, prompt a fragmentation of the internet, and compel intermediaries to comply with takedown requests or face draconian criminal penalties (such as fine and imprisonment), as well as the prospects of cancellation of registration or having their services blocked in Bangladesh, which poses significant business continuity risks," TIB commented.
Other rights bodies have pointed out that there is no actual way for anybody to determine what constitutes a violation.
"Many of the terms regarding prohibited online content are vague," said Bangladesh Legal Aid and Services Trust (BLAST), a rights organisation.
This creates a risk of being interpreted differently by different people, and uncertainty in terms of those creating, publishing, or sharing digital or social media content not knowing whether or not they are liable for breaches of the Regulation, it said in its submission to the BTRC.
POLICY FOR OTT-BASED SERVICE OPERATION
The ICT Division formulated a draft called "Over The Top Content-Based Service Providing and Operation Policy 2021", making registration mandatory for national and foreign online streaming platforms to continue their operation in Bangladesh.
The division defined the contents for streaming outlets, popularly known as OTT — over-the-top — platforms in the guideline.
Various entertainment programmes, dramas, cinemas, documentaries, fictions, nonfictions, sport events, docufictions, infotainment — also called soft news — advertisements, videos on demand, live or recorded contents of authorised television channels except news or talk-shows have been defined as OTT contents, according to the guideline.
It prohibits streaming such contents that oppose the liberation ideology, disrupt communal harmony, threaten the order and integrity of the state, oppose existing laws of the land, negate national culture and damage social value.
It also prohibits streaming contents which disrespect the national anthem, the national flag, the fundamental principles of the state policy and the spirit of the War of Liberation.
The guideline bans OTT platforms from streaming contents which stimulate sexual urge among children, harm religious sentiment, encourage extremism, communalism, disrupt stability in society and state and the contents which have been banned by courts in judgements or by the state with laws.
As mandated in the guideline, national and foreign steaming platforms will have to apply to the secretary of the information and broadcasting ministry for registration in the prescribed form of the ministry under the Broadcasting Policy 2014 until the draft Content-based Over-The-Top (OTT) Service Providing and Operation becomes effective.
The guideline bans video streaming of any programme or advertisements using internet or other technology in the country without having any registration.
Experts say the policy for social media and streaming services will be alarming for journalism and the free flow of information.
Since registration is being made mandatory to distribute content online, there is scope for scrutiny by intelligence agencies for the final approval for the licence, they said, adding that it will allow them to choose who to give a licence to.
DATA PROTECTION LAW
The government is drafting a data protection law, first of its kind data privacy law in Bangladesh, if enacted.
The draft law broadly sets out the rights and obligations of data subjects, data controllers and data processors, with provisions on notice-and-consent requirements, collection methods, recordkeeping, data correction and erasure, data breach notifications, and data audits.
It envisions the establishment of a new regulator, requires the appointment of a data protection officer, and mandates data localisation.
According to section 63 of the draft, for the purpose of fulfilling this act the government can issue instructions to the Director General of the Data Protection office in the interest of the sovereignty and integrity of Bangladesh, national security, friendship with foreign countries, and public order.
And once again, there is no definition of the integrity of Bangladesh, national security, friendship with foreign countries, and public order.
Another surprising thing of the draft is that there is no definition of personal data in the law and to what extent the act's purpose will be implemented without defining personal data.
The dangerous part of the draft law is that law enforcement agencies have been exempted, with the result that they are free to use personal data in any way they want, flouting all the rights to privacy.
THE PRESS COUNCIL (AMENDMENT) ACT, 2022
In June, the cabinet approved in principle an amendment to the law that would allow the Press Council to levy fines on journalists for "false reporting". The council can also take suo motu action against news that is against the state.
The cabinet, in a preliminary consideration, had struck out the provision of fines up to Tk 10 lakhs for compromising state security, harming public harmony, and unethical journalism.
The existing Press Council Act, 1974 does not have any provision to penalise any newspaper, news agency or any journalist except censuring them for professional misconduct or breach of journalistic ethics.
The government's move to amend the act has been seen and criticised by journalists and rights defenders as another attempt to shrink the already shrinking space for journalism as they say that the bill, if enacted, will further jeopardise the freedom of the press and freedom of expression.
They also said vague terms like "harming public harmony" and "state security" are being inserted into a law to be interpreted subjectively, and used recklessly, only to harass and intimidate journalists and punish dissenting voices.
A statement by Sampadak Parishad published on August 21 stated that the Parishad requested a copy of the proposed amendment this month but the council refused to disclose it, stating that it is under the jurisdiction of the ministry.
Speaking about the legislations, TIB Executive Director Iftekharuzzaman said the stated objectives of these recently enacted laws and those in the pipeline appear lofty and timely.
"However, deliberate, selective and targeted abuse of many of their provisions taking advantage of scope of motivated interpretations are fraught with risks of the country stepping into a post-media independence and post-freedom of speech era," he said.
He also said for a country born through a glorious national liberation war with freedom of speech and media independence at the core of the spirit of independent nationhood, this "disappointing turnaround can be understood only in terms of a growing political and administrative culture of intolerance of transparency, disclosure and plurality of views".
"Media is one of the frontline victims of an apparent strategy of monopolisation of political and governance space.
"As a result, while some media houses and professionals are struggling to survive by resorting to unprecedented degree of self-censorship, others are giving in to be co-opted and often serve the self-defeating agenda of media manipulation and control," Iftekharuzzaman added.
[This reporting has been supported by the International Press Institute's project on fighting attacks on journalists in South Asia]