Executive Summary
In this legal analysis, ARTICLE 19 reviews the draft Digital Security Act of Bangladesh (Draft Act), currently being discussed in the country, for its compliance with international freedom of expression standards.
As a state party to the International Covenant on Civil and Political Rights (ICCPR), Bangladesh must ensure that any of its laws attempting to regulate electronic and Internet-based modes of expression comply with international standards on freedom of expression. Hence, this analysis highlights concerns about possible conflicts with international human rights standards within the Draft Act; it also actively seeks to offer constructive recommendations on how the Draft Act can be improved.
In particular, this analysis shows that the Draft Act contains several broadly defined speech offences with harsh sentences, that could have a serious chilling effect on the right to freedom of expression online in Bangladesh. The provisions dealing with ‘content-related’ offences in the Draft Act fall well below international standards. The Draft Act also establishes unduly broad offences against computers and other computer-related offences. Moreover, we note that the procedural powers to investigate and prosecute cybercrimes are dangerously overbroad; we also emphasise that, under international human rights standards, all powers conferred upon the police should also be made subject to a court order.
We recommend entirely omitting several offences that are so broadly defined as to expose them to abuse for less legitimate ends. We also recommend including more precise intent and harm requirements for existing offences. Further, public interest needs to be considered in various areas of this Act; this defence offers an opportunity for the accused to establish that there was no harm or risk of harm to a legitimate interest in engaging in the proscribed activity, or that the public benefit in the activity outweighed the harm. Finally, we strongly suggest eliminating the heading of “terrorism” and categorizing these offences separately.
ARTICLE 19 hopes that the final version of the Draft Act will reflect our comments and that the Bangladesh Government and legislators will ensure that the freedom of expression online is fully protected in their national legislation.
Summary of recommendations:
- The Draft Act should provide sufficient safeguards for the protection of human rights and specifically reference international human rights standards;
- The definition of “unlawful access” in Section 2(2) of the Draft Act should explicitly require both “dishonest” intent and “infringement of security features” for access to be “unlawful;”
- In Section 2(3) the Draft Act’s “may have an adverse effect on the matters relating to the” should be replaced with “seriously harm;”
- Section 2(3)(b) should be deleted;
- The definition of “forgery” in Section 2(15) should require intent for “inauthentic” data to become actionable, and the language “incorrect and inappropriate work or procedure” should be removed;
- The definitions of terms “digital pornography” in Section 2(16) and “obscene” in Section 2(36) should be struck out in their entirety;
- Section 9 should require “dishonest” intent, and its sanctions should be reduced;
- Section 10 should require “dishonest intent,” “serious” harm to property; and the words “suppress” and “distort” should be eliminated;
- Section 10 should require intent for “inauthentic data” to be acted upon for legal purposes;
- The term “publishing” should be removed from the offences stipulated in Section 10;
- Section 11(1) should be amended to require “dishonest intent;”
- Section 11(2) should include a requirement for “interference with the functioning of a computer system” as well as intent to procure “economic benefit for oneself or for another person;”
- Section 12 should be struck out in its entirety. Should Section 12 be retained, it must be amended to specify that the conduct must be intentional and dishonest and that serious harm must result from it. Both reasonableness and public interest defences must be made available;
- Sections 13(1)(a)(I)-(III), as well as aiding and abetting, should not be terrorism offenses. These offenses should be placed outside of the heading of “terrorism.” After Sections 13(1)(a)(I)-(III) are moved, all three should be amended to require “dishonest” intent. Similarly, after Section 13(1)(a)(I) is moved it should require “serious harm” to result from the offence, and contain provisions for a public interest defence. The remaining offences under Section 13 should be omitted as they are properly addressed under already existing offences. Section 13(1)(g), especially, should be struck out entirely;
- The word “rigorous” should be struck out from the sanctions in subsection 13(2). Sanctions for this section should be reduced by at least half;
- Sections 14, 15(1) and 16 should be omitted in their entirety;
- Section 18 should also be struck out entirely. Any investigative police search powers must be properly defined, proportionate and, where they impact upon the rights and property of individuals, include strict requirements for judicial review;
- Section 24 as written should be struck out. Any compulsion should be in accordance with other portions of the criminal code of Bangladesh, and, at the least, stipulate minimum judicial review and warrant requirements.