Is the Future Censored? Criminalising Dissent in Bangladesh through the Cyber Security Act

Online freedom of expression has been criminalised by the government of Bangladesh through its controversial Digital Security Act (DSA) 2018, and this has continued with its replacement – the Cyber Security Act (CSA). Through legal methods, the Act enables the government to eradicate critical thinking and dissent even though it is a right enshrined in the country’s secular constitution as well as in international human rights law.  

In 2006, the Bangladesh parliament passed the Information and Communication Technology (ICT) Act, later amended in 2013. According to the government, the ICT Act 2006 enabled it to safeguard against cybercrimes, create and amend laws, and administer stringent punishment to protect data security and freedom of information. In 2016, the government drafted the DSA to tackle the emerging phenomenon of cybercrimes in the banking sector, as it did not want a repeat of the Bangladesh Bank cyber heist of earlier that year. The government also wanted to address the threat of online propaganda by international terrorists using social media, which remained largely uncontrolled. Both threats highlighted how traditional security measures and geo-political boundaries could be bypassed by threat actors.

Due to the uniqueness and potential severity of cybercrimes, the Bangladeshi government believed this necessitated a new cybersecurity law. Bangladesh is not alone in this fight, and many countries around the globe have come together to collaboratively combat the threat. For example, national and international efforts have included the Budapest Convention on Cybercrime 2004, EU Cyber Security Strategy 2013, and the US Cybersecurity Information Sharing Act 2015, all of which have either incorporated, or amended, existing cybercrime laws. While the DSA is expected to combat cybercrimes whilst also protecting against harmful online content, the Act can also work as an obstacle to freedom of speech and freedom of the press. It appears that the newly passed CSA is no different to its predecessor, as it inherits all of the controversial sections of the DSA.

International Law

Freedom of speech, or the freedom of expression, are a universal human right. This is recognised in international, regional as well as national human rights laws. The right is enshrined in Article 19 of the Universal Declaration of Human Rights, Article 10 of the European Convention on Human Rights, Article 13 of the American Convention on Human Rights, and Article 9 of the African Charter on Human and Peoples’ Rights. All of the standards stipulate that without meddling, an individual can exercise their freedom of opinion and expression either orally, in writing, in print via the internet, or through art forms.

The UN Human Rights Committee, an independent body of experts established by a human rights treaty, monitors compliance with the International Covenant on Civil and Political Rights, to which Bangladesh is a party. The Covenant states domestic laws that penalise opinions about historical facts are incompatible with the freedom of opinion and expression. Under international law, governments are compelled not only to respect freedom of speech, but also protect its means of expression. For legitimate reasons, free speech has to abide to domestic laws of speech. Free speech should only be criminalised in worst case scenarios such as direct incitement of hatred or violence, and only when measures to restrict speech are proportionate. In the Bangladeshi context, individuals should not be penalised for free speech such as criticism of the government or individuals connected to it. Instead, laws like the CSA should primarily focus on tackling technology-based offences.

Bangladesh’s ICT Act – Section 57

Prior to the ICT Act becoming law, the government justified its enaction by declaring that it would not only prevent cybercrimes, but also punish cyber criminals. Although journalists were told by the government that the ICT Act would not hinder their freedom of speech or expression, according to experts, Section 57 directly undermines Article 39 of the Bangladesh Constitution, which guarantees the right of freedom of speech and freedom of the press, albeit with a few exceptions. Section 57 makes it an offence for any person to deliberately publish or transmit news on a website or in electronic form, which is fake, obscene, corrupts persons, causes deterioration in law and order, creates prejudice, or hurts religious belief. All of these suggested offences can carry a maximum 14 years’ jail term.

Historically, the press has been under constant restriction from different governments in Bangladesh. For example, prior to independence in 1971, four daily newspapers were penalised for criticising the government of the day. In the six years before 2018, the Bangladesh government used Section 57 to arrest more than 1,000 people and pursued many others that exercised their constitutional rights to freedom of speech. In September 2017, Md Nazrul Islam Shamim, special public prosecutor of Cyber Tribunal, told the Dhaka Tribune that 65-70 percent of the cases filed under Section 57 could not be proven in court. He went onto say, “Some cases are totally fabricated and are filed to harass people. Most of these cases are settled out of court”. In the digital age, citizen journalists and social media activists have extended the definition of press and journalists in the vast online space. However, Section 57 is a tool that serves to control their activities.

The New Digital Security Act (DSA)

Ignoring the concerns of human rights activists and journalists as to whether there was a need for such a law to tackle technology-based offences, the DSA was passed in the Bangladesh parliament on 19 September 2018. Although the DSA was not the first law to curb online freedom of expression in the country, Anisul Huq, Minister for Law, Justice and Parliamentary Affairs, assured the law would lay to rest the controversies over Section 57 of the ICT Act. However, Section 57 was embedded into Sections 21, 25 and 28 of the DSA, and instead of drafting new legislation, the government could have revised the ICT Act to make it more comprehensive while at the same time addressing the concerns of the advocates of free speech. Critics have labelled the DSA ‘draconian’ and ‘repressive’ and claim it targets dissenters, especially those that have different opinions to the state, which translates to those that are in power. They argue the DSA is a legal mechanism to curb guaranteed constitutional rights of free speech and expression. Since the DSA criminalises online writings through vague definitions, it diminishes the space for intellectual discourse through the promotion of self-censorship. Section 21 (1-3) criminalises writings against Bangladesh’s foreign policy, Liberation War, spirit of Liberation War, father of the nation, and the national anthem and flag. These vague definitions allow plenty of scope for abuse if in the wrong hands. Provisions for life sentences in Section 21 of the DSA have raised huge concerns. Instead of combatting cybercrimes and ensuring digital security and safety, all of the provisions in the DSA are intrusive instruments intended to curtail the freedom of expression and freedom of the press in Bangladesh.

Despite widespread national and international criticism of the DSA, the Act authorises state agencies to arrest individuals without an arrest warrant, search any premises, and seize equipment. All of this is justified on the basis of even a mere suspicion that a crime has been committed using social media. The Act also allows the government to employ law enforcement agencies to remove and block any information or data on the internet which it deems necessary, therefore, providing a backdrop to silence individuals critical of government policies as well as those who expose human rights violations in the country. Moreover, the DSA bizarrely contains a provision that allows individuals to file cases against others even though they were not personally insulted or defamed. This is very unusual because defamation laws are supposed to typically protect individuals who are subjected to the act of defamation and are being harmed. Because fourteen out of the twenty provisions in the DSA are unbailable, there is the possibility that an accused individual can be detained indefinitely. According to a report by the Bangladesh research group, Centre for Governance Studies, between October 2018 and August 2022, there were 1,029 DSA cases of which, 301 were registered against politicians and 280 against journalists.

Freedom of Expression Under Attack 

According to the Bangladesh Peace Observatory, since the beginning of the coronavirus pandemic in March 2020, at least 142 people have been arrested or detained under the DSA for ‘tarnishing’ the image of the father of the nation, ‘hurting’ the spirit of the Liberation War, and ‘reporting’ and spreading ‘misinformation’ about Covid-19 via social media. It is no coincidence that the majority of those arrested have been journalists, university teachers, political opponents, as well as private citizens. In such circumstances, it becomes very clear that the freedom of expression or the freedom of the press are no longer inalienable rights in Bangladesh. According to the UK-based human rights organisation, Article 19, in February 2020, there were at least 50 incidents of freedom of expression abuses which included: One abduction, four cases of serious bodily injuries, nine assaults, one case of gender based violence, two defamation cases, and five cases of destruction of equipment.

The DSA is open to misuse due to several vague and ambiguous sections in the Act, which resulted in over 1,100 cases being filed since October 2018, sometimes simply for voicing disapproval of government policies or decisions on social media. A recent case in point was the arrest and detention of a 14-year-old student for allegedly putting a Facebook post ‘defaming’ the Prime Minister. The DAS was used to argue the case, causing widespread public outrage. The systematic way that freedom of expression has been, and continues to be, supressed has not only created an environment of fear, but also uncertainty and self-censorship which have negatively impacted civil society in Bangladesh.

On 10 March 2020, photojournalist Shafiqul Islam Kajol mysteriously disappeared a day after a DSA case was filed against him and 31 others for ‘publishing false news and circulating it on social media’. The case was filed by Shifuzzaman Shikhor, Member of Parliament and former aide to Prime Minister Sheikh Hasina. Shafiqul had gone ‘missing’ from his office in Dhaka, but retrieved CCTV footage showed unidentified people surrounding his motorbike just before his disappearance. Prior to the High Court intervening, Shafiqul’s family were struggling to file a case of abduction at two different police stations even though two new DSA cases were filed against him. For the next 53 days there was no sign of Shafiqul until his mysterious re-appearance on 3 May 2020, in the border town of Benapole where he was ‘discovered’ by the Border Guard Bangladesh trying to ‘trespass’ into Bangladesh. There is no doubt that this was an attempt by the authorities to present Shafiqul as an absconder from justice. Instead of reuniting Shafiqul with his family, he was arrested and charged for violation of the Passport Act. He was further arrested and detained under Section 54 of the Code of Criminal Procedure. From the beginning it was evident that the police did not actively look for Shafiqul, nor were they interested in who abducted him, or how he ended up in the Bangladesh-India border more than 228km from his office in Dhaka. Shafiqul was fortunate to be returned alive by his captors because in 2019, according to the human rights organisation Odhikar, 34 persons were victims of enforced disappearance. Of them, 8 were found dead, 17 were released or presented in court, and the whereabouts of 9 remain unknown.

On the night of 14 March 2020, Ariful Islam, correspondent of the Bangla Tribune, was dragged from his home, beaten, stripped and threatened with extrajudicial killing by a Senior Assistant Commissioner and two magistrates as part of a mobile court raid. Later declared ‘illegal’ by the Kurigram municipality mayor, Ariful was targeted for his investigative reports regarding the activities of Kurigram Deputy Commissioner, Sultana Pervin. Ariful was fortunate that his story immediately gained traction with the media which undoubtedly protected him from further harassment and mistreatment.

However, not everyone who goes against those in power gets off so lightly. On 6 May 2020, author and social activist Mushtaq Ahmed and cartoonist Ahmed Kabir Kishore were sent to prison for allegedly spreading ‘rumours’. According to the case filed under the DSA, Mushtaq Ahmed began to spread anti-state propaganda, while Ahmed Kabir Kishore satirized the government’s response to Covid-19 in his cartoons ‘Life in the Time of Corona’. According to the authorities, they had evidence of ‘anti-state chatting’ in WhatsApp and Facebook Messenger exchanges between the Mushtaq Ahmed and Ahmed Kabir. ‘Evidence’ included 60 pages of screenshots, a compact disc, details of Facebook profiles, and a 2-page list of articles. Without trial, Mushtaq Ahmed died in jail on 25 February 2021, following his detention and torture for social media posts that were critical of the government’s response to Covid-19. Throughout the nine months of his detention, Mushtaq Ahmed was not allowed to meet his family and was denied bail on six separate occasions. This just goes to show that journalists critical of the political elite are treated without the due process of the law, and as Mushtaq Ahmed’s case exposed, the DSA was weaponised to viciously target dissenting voices.

The Case of Khadijatul Kubra

In October 2020, during the Coronavirus lockdown, Khadijatul Kubra, a first-year student of political Science at Jagannath University hosted a webinar on politics and human rights issues for the social media page called ‘Humanity for Bangladesh’. Webinar topics included, the struggles and living conditions of Bangladeshi migrant workers during Covid-19, the state of politics and student rights at Jagannath University, and the state of democracy in Bangladesh. The webinars attracted and connected people from Bangladesh and from other parts of the globe. A guest speaker from Canada, Delwar Hossain, an expatriate retired army Major joined one of the webinars in which he ‘criticised’ the current government. That particular webinar was watched on YouTube by police officers who filed a DSA case against Khadijatul and Delwar at Kalabagan and New Market police stations. Among other charges, both Khadijatul and Delwar were accused of defaming the image of the prime minister and Bangladesh abroad as well as hindering the current political situation through anti-state activities.

Almost two years later on 27 August 2022, police arrested Khadijatul from her home under a DSA case. The next day she was sent to Kashimpur Jail in Dhaka. According to Khadijatul’s family members, they were not even aware that she had been sued under the DSA. At the Cyber Tribunal, Khadijatul’s bail application was rejected 3 times despite her being incarcerated without trial. In many instances, people accused of serious offences such as murder, rape and money laundering get bail.

Although Khadijatul was not given the opportunity to prove her innocence, the court did not even raise any concerns over how the police determined her age during initial investigations. At the time of hosting the webinar Khadijatul was 17 years of age and for this reason she should have had protection under the Children’s Act 2013. Any person police detain under the age of 18 would need to have parental and probation officer involvement in the process. As a minor, her trial should have been processed by a juvenile court, and if taken into custody, she should have been detained in a child development centre instead of jail. However, in one case police recorded Khadijatul’s age as 19 years, and in the other case as 22 years.

Defying government repression, protests were held by university students, teachers, and human rights activists and organisations both in Bangladesh and abroad. They called on the Bangladesh government to immediately and unconditionally release Khadijatul, who according to her family has been suffering from kidney disease. On 10 July 2023, the Appellate Division of the Supreme Court adjourned Khadijatul’s bail hearing for four months, declaring she should be able to take responsibility for the views expressed on her webinar. On 16 November 2023, the Supreme Court upheld a High Court order that granted bail to Khadijatul in two separate cases filed under the DSA, clearing the way for her release. Khadijatul was finally released on 20 November 2023, after serving 14 months in jail for being present at a Zoom meeting where another participant made contentious remarks about the current government.

The Case of Sultana Jasmine

On the morning of 22 March 2023, Sultana Jasmine an office assistant in the Rajshahi land office was taken into custody by the Rapid Action Battalion (RAB) while on her way to work. Without a warrant or a case filed against her, Sultana died in RAB custody within 48 hours of her arrest. According to RAB, Sultana had a stroke after which she fell and injured her head. With a brain hemorrhage, RAB first took her to Naogaon hospital. She was then taken to Rajshahi Medical College Hospital where she died from ‘irreversible cardio-respiratory failure due to intra-cerebral hemorrhage’, as recorded on her death certificate.

According to doctors, Sultana had an injury mark on the side of her head as well as multiple intracranial bleeds. Associate Professor Kafil Uddin, who led a three-member board formed to conduct the autopsy stated, “Sultana Jasmine suffered an injury to her head apart from haemorrhages in her brain”. RAB explained the injury marks on her head were the result of her falling after the stroke. It is not clear what happened during the interrogation process that caused Sultana to have a stroke. Or if the brain hemorrhaging was a result of the stroke or the fall, or both. Sultana’s relatives disputed the RAB narrative because there were many unexplained gaps in their story and stated that she was generally in good health. They allege that RAB must have tortured her in custody contributing to her death. Questions have been asked as to why so many people in good health suffer fatal health issues while in RAB custody? And why is this not a major cause of concern that needed investigating?

31-hours after Sultana was arrested and while she laid unresponsive in a hospital bed, RAB recorded a DSA case against her for ‘syphoning off’ money from job seekers using a Facebook page. According to Enamul Haque, the plaintiff of the case, his Facebook account had been hacked and used to extort money from job seekers, and Sultana was involved. However, the official version was riddled with internal contradictions and inconsistencies. For example, why was a ‘verbal complaint’ from a government official sufficient justification to arrest Sultana prior to recording a case? Why did it take 31-hours to file a case against her after she had been taken into custody? If Sultana fell ‘ill’ while being taken to the police station, then why did it take an hour and a half before she was taken to Naogaon hospital? Another inconsistency according to Sultana’s landlord Delwar Hossain Dulal, was that Sultana’s house where she lived with her son was being watched by a group of unidentified men for around two weeks. Seen as an annoyance, Delwar and some locals approached the men and asked them why they were there, “They then told us they are the people of the government and that we ought not to disturb their work”, said Delwar. Some of the same men as well as others were involved in Sultana’s arrest on the morning of 22 March.

Cybercrimes Against Women

Since its establishment in 2013, the cyber tribunal has received more than 4,500 cases. These include internet fraud, identity theft, harassment and cyberbullying, among others. The majority of these cases were tried under Section 57 of the ICT Act, which prohibits the dissemination of distorted or offensive images as well as fabricated and slanderous material online. Despite having laws like the DSA to ‘protect’ people online, according to research conducted in 2022 by ActionAid Bangladesh, 63.51 percent of women respondents reported they had faced online violence, which compared to 2022 was an increase from 50.19 percent. The majority of the abuse faced by women online were primarily on Facebook, followed by Facebook Messenger, Instagram, IMO, WhatsApp, and YouTube.

The forms of cyber harassment included cyberstalking, personal attacks, hateful and offensive sexual comments, sexually explicit pictures, soliciting sexual favours, making fake IDs, all of which can have devastating consequences for victims. According to the Cyber Crime Awareness Foundation, more than 73 percent of cybercrime victims do not seek legal assistance, while more than half of those that do, found support was inadequate. Many victims are afraid to report cybercrime incidents due to fear of retaliation as well as confidence in the legal system. Furthermore, law enforcement agencies often lack resources and expertise to properly investigate and prosecute these crimes. This is concerning and raises the questions as to whether cybercrimes are a top priority or even taken seriously at all. Despite there being a legal framework, cybercrime continues to be on the rise and more needs to be done to address this issue, especially if women are unable to use the DSA against their abusers.

Conclusion

Advances in information technology have led to new forms of online censorship through the ICT Act, which has widely been used to arrest and persecute individuals for critical reporting and posting opinions on social media. All of this has been done under the guise of counter-terrorism, protecting public order and the image of individuals and the country. According to Human Rights Watch, between 2013 to 2018, Bangladeshi police filed nearly 1,300 ICT cases. The majority of the cases were filed under Section 57 of the Act, which approves the prosecution of anyone who ‘publishes or transmits in electronic form any material’ deemed ‘fake and obscene’, defamatory, or otherwise likely to ‘deprave or corrupt’ its audience.

Although the DSA replaced the ICT Act, Section 57 was incorporated into the DSA, but this time with even harsher penalties. The sheer number of DSA cases highlight how Bangladeshi government officials and ruling party activists have extensively used state institutions to muzzle critical thinking and dissent that question the status quo. According to human rights organisations and governments around the globe, the Bangladesh government utilises the DSA to create an atmosphere of fear and intimidation, which essentially undermine human rights. Many critics have argued that the DSA is a tell-tale sign of Bangladesh’s ongoing slide into digital authoritarianism. An increased use of surveillance and self-censorship by journalists to avoid retribution also compromises people’s right to free assembly and free speech. At the same time, to strengthen its grip on power, ruling party activists are given a free reign to use existing laws to effectively criminalise free speech.

A free society needs to have reliable and accurate journalism, public access to information, and protected privacy rights to hold public officials and members of parliament accountable. This is a vital component of maintaining a healthy democracy. The DSA has caused a precipitous decline in the right to freedom of expression in Bangladesh, especially if a person updating a status on social media, writing a blog or running a news portal can have a third-party file a case against them. Moreover, law enforcement agencies have been empowered by the DSA which is why they were able to detain Shafiqul Islam Kajol, Mushtaq Ahmed, Ahmed Kabir Kishore, Khadijatul Kubra, and Sultana Jasmine without an arrest warrant, and in some instances even without charges being framed.

Although the law was intended to protect people online such as tackling the serious issue of cybercrimes against women, it is primarily being used to clamp down on dissenting voices and political opposition. The effects of cybercrime on victims can be devastating, ranging from psychological impacts to financial loss, to reputational damage, and ruined careers. It is essential that victims receive adequate support and protection, and that they are encouraged to report cybercrime incidents without fear of retaliation. The government need to take a stricter stance against cybercrime by working together with all stakeholders to create a safer online environment. They need to ensure victims receive the support and justice they warrant instead of detaining individuals like Khadijatul whose arrest and treatment ironically tarnished the image of Bangladesh and its government.

About the GPI

The Global Policy Institute is a research institute on international affairs. It is based in the City of London, and draws on both a rich pool of international thinkers, academics as well as policy and business professionals. The Institute gives non-partisan guidance to policymakers and decision takers in business, government, and NGOs.

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