The Digital Security Act 2018: Who are the Real Victims?

22 February 2022
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The Digital Security Act (DSA) 2018, in the past three years has drawn severe condemnation from human rights organizations at home and abroad. The law has severely disrupted the freedom of expression in Bangladesh. Journalists and citizens of various walks of society have been victimized for voicing their opinion online. As a think-tank, The Centre for Governance Studies (CGS) has been able to track 835 cases with detailed information from January 2020 till the 30th of January 2022. In order to highlight this issue, the Centre hosted a webinar titled, “The Digital Security Act 2018: Who are the Real Victims?” on Thursday, 17th February 2022.

The webinar was presided over by CGS Chairman Dr. Manjur Ahmed Chowdhury and was hosted by CGS Executive Director Zillur Rahman. The discussants were SM Rezaul Karim MP, Minister of Fisheries and Livestock; Shirin Akhter MP, General Secretary of Jatiya Samajtantrik Dal; Dr. Asif Nazrul, Professor of the University of Dhaka; Barrister Jyotirmoy Barua, Advocate, Supreme Court of Bangladesh; Zahirul Alam, Head of News, NTV; Nurul Haque Nur, Member Secretary, Bangladesh Gono Odhikar Parishad and former VP of DUCSU.

Zillur Rahman made the opening statement of the webinar where he quoted some findings of a study conducted by CGS in the application of the DSA. The study found that Journalists make up about 9.25% of all alleged criminals and almost 25% per cent of those whose professions could be determined. Compared to the total number of arrestees, the number of journalists arrested is disproportionately higher. An analysis of the cases filed by the victims revealed that the overwhelming majority of people were not directly affected by the complaints. Mostly the non- aggrieved parties that file the case are still among the ruling political party affiliated people. 

The minister of fisheries and livestock, SM Rezaul Karim, stated that he does not think the Digital Security Act (DSA) is making people fearful about posting their thoughts online. According to him, around eight crore people use the internet in Bangladesh now, so it is necessary to regulate online space better. The minister emphasized the need for the DSA as it is the only law capable of deterring and punishing defamation in digital platforms in Bangladesh. He illustrated the kind of defamation, and humiliation people can suffer online, such as the spread of false humiliating images of people and false allegations spread in the form of viral videos. The minister himself has been victimized by such online harassment. According to the minister, all nations have digital security laws, not just Bangladesh. Such laws are essential to stop the spread of misinformation and stop people inciting violence. Regarding the controversial speech offence clauses in the law, the minister agreed that it is not just to file a case against someone because they said something at the moment. He emphasized the importance of freedom of the press for a democratic nation. He also briefly touched on the issue of the over-enthusiastic filing of cases and application of the law, which he regards as an issue. The minister agreed that the clauses that are being abused need to be investigated and concluded that no law is eternal, and everything is subject to change.

Shirin Akhter MP stated that we require the DSA, which should not be abolished. According to her, it is the government’s responsibility to ensure that these loopholes are ironed out and that people aren’t falling victims due to these loopholes. The role of the cyber security act is to protect against the illegal distribution of pornographic images of women and children, violation of personal privacy, online scams, inciting public unrest, distributing state secrets, and propagating religious bigotry. However, these positive applications of the law are being drowned out by journalists’ protests who frequently find themselves facing this law. According to the MP, the existence of the law itself is not a human rights violation. Regarding the discourse stating that DSA cases and non-bailable offences, the MP pointed out that it is possible to get bail in these offences when the case goes to the high court. The MP concluded that we require the DSA to ensure proper governance of a digital Bangladesh, but it needs to be improved to serve the people better. Therefore, we should work to find the loopholes and fix them.

Dr Asif Nazrul reflected on Shirin Akther’s point that DSA offences allow bail once it reaches the high court. He pointed out the tragic outcome of writer Mushtaq Ahmed who was refused bail numerous times and ended up dying while in custody. He stated that high court bails are far too expensive to be afforded by the average Bangladeshi citizen. There are several inconsistencies in the application of the law. An example he gave involved his own experience of being charged under the act due to statements made by a fake account impersonating him on Facebook. He explained that the DSA clauses are essentially divided into two parts. One part is more technical and protects against computer-related offences such as hacking. The second and more controversial part is the clauses that punish “speech offences”. According to the professor, the speech-related offence clauses need to be reexamined as the wording of the clauses are too vague and broad, causing them to be open to misinterpretation. He also stated that defamation cases in the DSA need to be tried under civil law, not criminal law. 

According to Barrister Jyotirmoy Barua, the DSA is not the only act that is making the digital space dangerous. But it is the most significant. As the ICT act 2006 already included cyber security issues we did not need the DSA 2018 for it. The ICT act was sparsely utilized before 2013. The Supreme Court Advocate went on to illustrate multiple procedural issues in the application of the DSA. Most of the cases under the DSA are being filed by third parties, not the claimant. However, this goes against existing criminal law policy where it is stated that defamation cases need to be filed by the claimant. Even though the courts shouldn’t accept these cases filed by third parties, they are being pressured by political entities to take them to trial. Despite the Constitution and criminal law stating that there cannot be multiple cases regarding the same issue, we see that in some districts, there are multiple cases filed against individuals for the same issue. Another issue the advocate pointed out was the lack of pre-trial sentencing policy in the law. Due to the lack of such policy, people are being detained indefinitely before trial without bail. Regarding the DSA, the law is also too lenient to the failings of law enforcement but excessively harsh on the accused. How the courts are not addressing procedural defects on the part of law enforcement agencies- was also elaborated by him. 

Zahirul Alam stated that journalists are the most victimized people under the DSA. Therefore, like other stakeholders, journalists are vigilant about the application of this law. He indicated that freedom of the press is obstructed due to fear of repercussions. Since it’s not clearly stated in the law what can be said and not said, journalists are left unsure if they will be punished for their work. The journalist went on to say that the objective of this law is to inspire fear. This objective is made clear in the disproportionate level of punishment for such undefined crimes. The law also obstructs investigative journalism due to the restriction of recording using specific devices. TV and print media are fearing legal ramifications and self-censoring. Writers are being arrested and detained without bail indefinitely. The International community, like the UN, sees these human rights violations in a negative light. Zahirul Alam concluded that the government needs to make it clear which actions online are punishable under the law which is not.

Nurul Haque Nur restated the shared notion among the participants that everyone thinks that we need laws. But laws need to be made to serve people. He cited the study by CGS that shows that most of the cases were filed by people in the ruling party. He stated that people’s representatives who are not willing to listen to the criticisms of the people they represent, shouldn’t run for political office. He also elaborated on the issue of multiple cases being filed on the same issue against individuals. According to the former DUCSU VP, this is a clear indication of using the law to harass political opponents and dissenters. He further stated alleged cases of arrests made without proper investigation and arrests made just because people were on the friend list of another accused. Nurul Haque Nur concluded that the clauses in the law need to be amended, especially those curbing free speech.

CGS Chairman Monjur Ahmed Choudhury stated that the DSA has numerous issues such as the punishment stipulated in the clauses that are disproportionate to the crime; No warrant required to make arrests under DSA, etc. He remarked that the cyberspace of Bangladesh is becoming a dangerous minefield where people fear to speak their minds. The nation’s people are not free to exercise their constitutional rights of freedom of speech and thought. He stated that the DSA is actively curbing these rights.

In conclusion, the discussants agreed on the necessity of a law to protect mass citizens from cybercrime. The law has to safeguard the citizens and ensure the security of everyone not only a particular group of people.