New cyber ordinance: Stronger shield for women, children

The government has replaced the much-criticised Cyber Security Act 2023 with the Cyber Safeguard Ordinance, fully defining child abuse and sexual harassment on digital platforms.

A gazette notification confirmed that nine controversial sections of the act -- sections 21, 24, 25, 26, 27, 28, 29, 31, and 34 -- have been repealed.

These sections were often criticised for curbing freedom of speech and being used to harass journalists and citizens.

These provisions included punishment for criticising or sharing content deemed offensive about the Liberation War, Bangabandhu Sheikh Mujibur Rahman, or national symbols; identity fraud and impersonation; spreading false or threatening information online; collecting personal information without consent; and publishing or sharing defamatory content.

The ordinance states that all ongoing cases under these sections will be dropped, and previously handed down punishments or fines will be cancelled.

In contrast to the repealed provisions, the new ordinance defines and criminalises digital content involving child sexual abuse, sextortion, and revenge porn.

It includes any visual, audio, or written content showing or encouraging children to engage in sexual activity, whether real or simulated.

However, it makes exceptions for content created for law enforcement, education, medical, or legitimate journalistic purposes.

The ordinance also allows law enforcement agencies to act against online content that threatens national security and public order or promotes religious or communal hatred.

Authorities can also take action to remove or block such content with a tribunal's approval. To ensure transparency, the government will have to publicly disclose information about any blocked content.

The ordinance has criminalised the use of artificial intelligence to commit any crimes under the new law.

Abu Nazam M Tanveer Hossain, a public policy specialist, shared his analysis of the new ordinance with The Daily Star. He noted that the extraterritorial application of section 4 currently covers only Bangladeshi citizens in cases not involving devices physically located in Bangladesh. However, he argued, the law should extend to any Bangladeshi whose actions impact Bangladeshi citizens or society. For example, those instigating communal riots or operating online gambling platforms accessible from Bangladesh.

He appreciated section 20 for finally criminalising gambling in cyberspace, given that the Public Gambling Act of 1867 is outdated and ineffective in the digital era. He acknowledged that while different levels of punishment could be considered for those running such platforms and those participating, it is also reasonable to apply equal penalties since harm occurs only when someone engages with these platforms.

Regarding section 21, Hossain pointed out that the term "cyber fraud" is too broad. It can range from one-on-one digital scams to massive corporate crimes involving thousands of victims and billions of takas, such as the case of Ponzi trading app MTFE. He suggested categorising such crimes based on impact and assigning proportionate punishments. He also highlighted a lack of clarity between the Bangla terms "Cyber Jaliati" (cyber forgery) in section 21 and "Cyber Protarona" (cyber deception) in section 22, describing it as a potentially problematic overlap that should be addressed. He elaborated that while fraud is a broad term encompassing dishonest actions for unfair advantage, forgery is a more specific type of fraud involving falsified documents or signatures. Essentially, forgery is a tool to commit fraud.

In his view, section 23 "incorrectly" categorises identity fraud or theft under the same umbrella as cyber terrorism, Hossain said. He recommended moving identity theft to section 21 or 22, as it does not equate to acts of terrorism in severity or intent.

He praised section 8 for requiring a cyber tribunal's approval within three days after removing or blocking any content. The content must be restored if such an approval is not secured within the stipulated time. This, Hossain said, provides a necessary safeguard against arbitrary censorship. He also welcomed the provision mandating the government to make the list of blocked content public, calling it a step towards transparency and public awareness.

About section 26, Hossain commended the replacement of vague language like "hurting religious values" with a more precise term: "inflicting religious and communal hatred". He said this brings clarity and improves legal interpretation.

He also welcomed the inclusion of crimes such as revenge porn, digital sexual abuse of minors, and sextortion under section 25. These additions, he believes, will have both immediate and long-term benefits for victims and enable law enforcement to take decisive action. The provision covering blackmail using such materials, he added, will serve as protection against honey trapping and assist in faster responses from authorities.

Hossain expressed support for section 40, which requires the affected individual, not others, to file a complaint under the ordinance. Citing past misuse of this provision under the previous law, he said the change, coupled with the removal of libel as a cybercrime, will help prevent abuse. It also shifts the burden of proof onto the complainant to demonstrate actual harm or impact.

Hossain praised section 43 for granting proper legal status to forensic evidence, calling it a necessary and appropriate update.