The apparent misuse of section 57 of the ICT Act 2006 (amended as of 2013) to arrest people for their Facebook comments has created a public outcry in the country. The burning question is whether this section curtails freedom of expression or not. For a healthy debate, we need to have a clear idea about what freedom of expression means and how it should be exercised in the context of new media or social media such as Facebook, Twitter, and blogs.
What is freedom of expression? Does it mean that one can say whatever s/he wants? Nobody can say whatever they want on a public platform. The freedom of expression is neither unlimited nor unconditional. It is defined on two levels of authority: international level and national level. At the international level, two covenants talk about freedom of expression while at the national level the constitution and other laws define it.
Article 19 of the Universal Declaration of Human Rights (UDHR) 1948 and the International Covenant on Civil and Political Rights (ICCPR) 1966 enshrine freedom of expression or speech. Article 19 of the UDHR says: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” In the same vein, article 19 of the ICCPR says: “Everyone shall have the right to hold opinions without interference. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” And, this right may “be subject to certain restrictions, but these shall only be such as are provided by law and are necessary.” At the national level, in the case of Bangladesh the constitution in its article 39 guarantees freedom of expression with some reasonable restrictions “imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”
The international covenants and the Bangladeshi constitution guarantee freedom of expression with reasonable restrictions. UNESCO's freedom of expression tool kits envision freedom of expression as a complex right because it is not absolute and it carries special duties and responsibilities with it. The freedom of expression right protects both the right of the speaker and the right of the listener. It also respects people's right to dignity, safety, and privacy.
Now the question is, can we say whatever we want on Facebook, Twitter or blogs? Some argue that comments made on social media should be ignored as they are people's very personal expressions. However, social media embody two spheres—a private sphere and a public sphere—simultaneously. When someone posts a comment or anything on a Facebook page, he/she can make it private or public. When a post is made publicly accessible, it becomes an act of mass communication.
The social media are effective in mass communication because of their two qualities—anonymity and speed in distribution of messages. In social media platforms like Facebook, people can act anonymously which encourages people to express raw emotions. Messages get distributed at a tremendous speed from one to another.
Social media with these qualities have become a cause of concern for the state and law enforcement agencies. Many states have responded to this with cybersecurity laws. In Bangladesh, the ICT Act of 2006 (amended as of 2013) deals with crimes committed using the Internet and social media. Section 57 of the Act can be used to arrest people for their offensive Facebook comments. One of the widely discussed cases in this regard is the arrest of journalist Probir Shikder. The police arrested Mr. Shikder on the charge of defamation following a case filed by a person accusing Mr. Shikder for defaming a sitting minister of the government in a Facebook comment. Few days before his arrest, in a Facebook status, Mr. Shikder expressed concerns about his safety as he felt that a powerful quarter including the minister was conspiring to hurt or kill him. He went to file a general diary with the local police station for his protection but the police declined to record his complaint.
A third person whose name was not mentioned in the Facebook status filed the defamation case. The police arrested Mr. Shikder under the section 57 of the ICT Act and the court put him on three-day remand for questioning. It created a public uproar, given the contribution of Mr. Shikder in exposing the people who committed crimes against humanity during our Liberation War in 1971. A son of a freedom fighter, who sacrificed his life during the liberation war, Mr. Shikder was attacked and maimed by unknown assailants several years ago for his newspaper reports exposing war crimes and criminals. When he was arrested this time, allegedly under the influence of the minister, public support through social media poured in for him. He was immediately released from police custody with the timely intervention of the prime minister.
A translation of section 57 says that a person commits a crime when he or she intentionally publishes or broadcasts something which is false and obscene by reading, watching or listening to the material in a particular condition such that a person may be inspired to do something which causes defamation, undermines law and order or creates a possibility of doing so, distorts the image of a person or the state, hurts people's religious sentiment or creates the possibility of doing so, or instigates people against a particular person or a group.
For committing such a crime, a person can be imprisoned for up to 10 years along with a fine up to Tk 1 crore (Tk 10 million). The amendment made to this section in 2013 made this offence cognizable and non-bailable which means a police officer or investigation officer could arrest someone for this kind of offence without any warrant and the person has to stay in custody until the disbursement of the case.
Vagueness of the text and the sweeping nature of the section allow its misuse by law enforcement agencies. Mr. Shikder's case is a glaring example of that. He was subjected to foul play by the police under the influence of powerful quarters. Online activists and bloggers have alleged that the police have been biased in applying this law against them. They claim that the police have been keen on hunting them down following complaints about religious defamation but are lacklustre in tracking down religious fanatics who made death threats to bloggers through Facebook.
The offences bundled together in the section are not of the same magnitude but have been assigned the same punishment. Since the offences mentioned in the section are not delineated anywhere in the law, this section could be misused to suppress freedom of expression. However, it is not to deny that legal tools are required to deal with crimes committed by using social media, to tackle incidents like those created at Ramu in 2012. A distorted Facebook image was distributed to instigate the Muslims in the area to attack Buddhist houses and temples.
Two approaches could be taken to stop the abuse of this section. First, this section could be deleted altogether. In this case, the criminal code of procedure needs to be updated to deal with crimes committed by using social media. Second, it can be amended with the inclusion of clear definitions of the offences mentioned and by assigning punishments according to the magnitude of the crimes. Third, the relevant court should be authorised to decide whether an accused will get bail or not.
At the same time, social media users also need to learn the limits of their freedom of expression. Spreading false or distorted information or image, defamation, hate speech, issuing threats through Facebook posts and messages instigating violence must not be protected in the name of free speech.
The writer is a Professor of media studies at the University of Dhaka.