Why are we worried?

The Editors' Council yesterday at a meeting with the law minister and post telecommuni-cations and ICT minister expressed deep concern over some provisions in the digital security bill placed in parliament last week. Freedom of expression and independent journalism, they feared, will largely be affected if those provisions remain in the proposed legislation.

In response, Law Minister Anisul Huq said "the concerns of the Editors' Council are logical for the major part." Based on their concerns, it was decided that he will ask the parliamentary standing committee on the Post, Telecommunication and ICT ministry now scrutinising the bill to invite the Editors' Council to any of its meetings after April 22 so that the editors can place their concerns in writing before the committee. The law minister's assurance seems heartening.

But what are the concerns centring the fate of freedom of expression and independent journalism in the wake of the proposed digital security law?

For one thing, the proposed digital security law suffers from the vice of procedural irrationality. If enacted by parliament, the legislation will in effect introduce a policy of double standards and discrimination between alleged offenders committing the offence of defamation through digital devices and those committing it through traditional media.

People accused of defaming others through traditional media like newspapers or books or leaflets under section 499 of the Penal Code of 1860 will have safeguards from being prosecuted on charge of the alleged offence. According to section 198 of the Code of Criminal Procedure of 1898 only the persons aggrieved by the alleged defamatory content may sue the offenders. No third party is allowed to file the defamation case.

But people accused of defaming others through digital devices like computers or any other communication device such as a mobile phone or a tablet will not have the same safeguards. Persons aggrieved or anybody on their behalf can file defamation cases. This may again open a floodgate of lawsuits for abuse, as had happened in case of the draconian section 57 of the ICT Act, 2006 to muzzle dissenting voices and criticism.

Punishment also varies for committing the same alleged offence—defamation. People accused of defaming others through digital devices will face harsher punishment than those who commit the same offence through traditional media. According to section 500 of the Penal Code, "whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both."

But under section 29 of the proposed digital security law, one may face imprisonment which may extend to three years or a fine of Tk 5 lakh or both. And this is just for committing the offence for the first time. If someone commits the same offence a second time or repeatedly, he will face imprisonment which may extend to five years or a fine of Tk 10 lakh or both.

The absence of safeguards in the proposed digital security law and harsher punishment is disturbing, to say the least, at a time when we are experiencing the fastest growth of internet use in people's daily lives and their habit of using digital platforms to express their opinions.

This procedural unreasonableness in the proposed digital security law has diluted one good thing. The proposed digital security law did not bank on the draconian section 57 of the Information Technology Act, 2006 to define defamatory action. Section 57, which still remains in force, is vague and makes everything—be it true or false—published about a person in the website, and if that person feels defamed by the content, to be defamation. This ambiguity has given scope for widespread abuse of this provision, sparking uproar and strong demand for its cancellation to protect people's fundamental right to freedom of expression. The way defamation is defined in section 57 also runs counter to the one stipulated in section 499 of the Penal Code, 1860.

Hot on the heels of widespread criticism and demand for abolishing section 57, the government has promised to remove the ambiguity from the cyber defamation law in the proposed digital security act. The proposed legislation banks on section 499 of the Penal Code to define the defamatory action.

According to section 499 of the Penal Code of 1860, whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation or such person is said to defame that person. There are ten exceptions in this provision.

By those exceptions efforts were made to protect people's freedom of expression. For example, the first exception says it is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is of course, debatable.

Another exception reads it is not defamation to express in good faith any opinion related to the conduct of a public servant in the discharge of his public functions, or with respect to his character, so far as his character appears in that conduct, and no further.

But banking on section 499 of the Penal Code to define the defamation in the proposed digital security law may not work effectively to protect freedom of expression in the digital age due to absence of the safeguards as discussed above. So, apprehension of abusing the proposed digital security law to gag freedom of expression and independent journalism still remains justified.

The nature of the cases filed under section 57 of the ICT law in previous years has been a glaring example of how the defamation law was used to muzzle dissenting voices and criticism. The misuse of such a cyber law is not just limited to Bangladesh. Section 57 of our ICT Act, not too long ago, had its counterpart in India in the Information Technology Act 2000. Following widespread abuse of this provision against dissenting voices, the Indian Supreme Court scrapped it in 2015 terming it unconstitutional and against freedom of expression. But the same draconian provision still exists in the law book of Bangladesh with a stringent punishment of imprisonment which may extend up to 14 years. And this provision is set to re-emerge in new form in the proposed digital security law.

The British rulers were against freedom of press and free speech. But the above discussion shows the punitive measures introduced by our government in the cyber laws are harsher than the ones made by the colonial rulers in the Penal Code. Nothing can be more unfortunate. Are we moving forwards or backwards?

Shakhawat Liton is special correspondent to The Daily Star.