Stakeholders’ consultation mostly ignored in final draft of social media, OTT regulation

Even though Bangladesh Telecommunication Regulatory Commission (BTRC) had invited feedback on the draft of its new social media regulation, the finalised version shows that little or no heed was paid to the major stakeholders.

Last Wednesday, BTRC gave the High Court the meeting minutes of the last three sessions held by the Regulation Formation Committee when finalising the draft of the regulation. The minutes portray that crucial feedback given by stakeholders was not even discussed, let alone adopted.

The finalised "BTRC Regulation for Digital, Social Media and OTT Platforms" was submitted to the High Court on the same day.

The final draft allows the government to order individuals to take down content, empowers it to order social media companies to block content, and grants it indemnity for its actions under the law.

Over the months, Transparency International Bangladesh (TIB), Bangladesh Legal Aid Services Trust (BLAST), Global Network Initiatives and others sent feedback ringing alarm bells about the government constricting the space for free expression.

BLAST, in its recommendations, had told BTRC that "imposing restrictions on the creation and dissemination of online content will create a chilling effect on freedom of expression concerning issues of rights and justice, including by and about marginalised communities, and will inhibit democratic debate and discourse."

"The grounds on which social media intermediaries are required to take down content are similar to certain Digital Security Act provisions that have already been identified by commentators as arbitrarily restricting freedom of speech and expression," read the recommendations by BLAST.

The grounds on which social media intermediaries are required to take down content are similar to certain Digital Security Act provisions that have already been identified by commentators as arbitrarily restricting freedom of speech and expression.

— BLAST, in its recommendations on the regulation

This includes content that threatens the "unity, integrity, defence, security, or sovereignty of Bangladesh, [and its] friendly relations with foreign states" or "is against the Liberation War of Bangladesh, the spirit of the Liberation War, the Father of the Nation, the national anthem, or the national flag", "threatens the secrecy of the government" or "creates unrest or disorder or deteriorates the law and order situation" or "threatens public order".

TIB had pointed out that requiring all social media intermediaries, tech companies, internet service providers, OTT platforms and online news publishers to get locally registered, and empowering BTRC to cancel the registration if their activities go against the regulation will put them in a bodysuit.

It said it puts foreign companies at risk of surveillance and disincentivises them from operating in Bangladesh.

These concerns -- among many others -- were not addressed and the finalised draft still retains these provisions.

The BTRC submission to the HC reads, "It was agreed that the Regulation shall be finalised after necessary consideration and/or evaluation of the feedback/input from several concerned stakeholders in this regard."

Yet this commitment to evaluate feedback from stakeholders is not reflected in the meeting minutes.

During the eleventh session, held on September 4, the committee reviewed the definitions of terms like "content", "digital device", "intermediary" and "curated content".

Two weeks later, on September 18, the committee met again for their twelfth session. They discussed and decided that companies that are already registered, do not need to register again. However, it did not speak of doing away with the requirement.

During this meeting, they decided to adopt one feedback made by Global Network Initiatives (GNI), a collective whose members include Meta, Microsoft, Uber, Zoom, Telenor Group, Yahoo, Google, Nokia, Vodafone, Verizon, Human Rights Watch, Wikimedia, Committee to Protect Journalists and others.

GNI had expressed alarm at the fact that the draft regulation features excessive penalties for violations, including fines of up to Tk 3 billion and/or imprisonment for up to 5 years and targets company personnel.

During the 12th meeting, the committee decided to scrap criminal liability, and include corporate liability instead. The latest draft kept intact provisions for fines if the regulations were violated but removed the ceilings that were mentioned in the previous drafts. Instead, it just added that the "fine should not be excessive".

In addition, during the 12th meeting, the committee dropped the section in the previous draft that forced companies to circumvent end-to-end encryption and identify "first originators" of any content or message sent.

Ten days later, the committee met for the 13th time, and finalised the draft, leaving key concerns up in the air.

Ashish Kumar Kundu, the director-general (legal and licensing division), who signed the meeting minutes, told this newspaper that many stakeholders were consulted and met with before this draft was finalised.

The commissioner of the division was contacted several times over the phone, but this newspaper was unable to reach him.