Digital security act: Special cell’s nod must for filing case

No case can be filed under the Digital Security Act without the express approval of a special cell headed by the divisional commissioner, the ICT ministry proposed yesterday.

The proposal was sent to the law ministry for vetting, said sources at the ICT division.

According to it, this three-member cell will be set up in every division.

While the divisional commissioner will head the cell, the other two members will be the divisional cyber tribunal's judge and an additional district magistrate.

Prior to filing or accepting any case under the DSA, the details must be presented to this cell and a minimum of two members must provide consensus, said the sources. 

The cell does not need to meet physically and can convene virtually to provide a decision.

These steps are to be followed when deciding to prosecute someone for the publication of false, offensive or defamatory information, instances of cyber-terrorism, breach of government secrecy and illegal transfers of data.

Law enforcers must notify the cell and seek its approval in cases of arrests without warrants.

The proposal came at a time when UN high commissioner for Human Rights Michelle Bachelet said they were engaging with the government on the review of the act.

Speaking at a press conference at the Intercontinental Hotel yesterday, Bachelet said, "We have submitted our recommendations for the repeal and revision of certain provisions of the act, with a view to ensuring their compliance with international human rights laws and standards, and preventing arbitrary application or misuse."

The law allows the government to make rules for carrying out the purposes of this act. It states, "If any difficulty arises in implementation of the provisions of this act, the government may, by notification in the official gazette, take any necessary action in this regard to remove such difficulty."

If the law ministry approves the proposal, it will be published as an official gazette under the orders of the president.

If a gazette is published in this regard, this will be the first instance of a rule being passed to aid the implementation of the DSA.

The act has been consistently criticised for being unfairly used to silence journalists and proponents of freedom of expression, to target political opponents and to victimise minority communities.

Data from the Centre for Governance Studies and independent sources show that between 2019 and February 2022, at least 224 journalists were prosecuted and at least 70 arrested.

At the moment, 14 of the law's 20 offence-related sections are non-bailable, while it allows for arrest without warrant. A warrant is not needed even in instances where an offence is yet to be committed but officers "suspect it will be so".

Since the beginning of this year, Law Minister Anisul Huq had been making comments about taking steps to address the problematic implementation of the law. In January, he said the law can be amended if necessary.

In May, he said this law has been misused and abused "to some extent" and he had instructed the home ministry to ensure that cases lodged under the act go to special cells, established in 2006 under the Information Communication and Technology Act, for examination.

These cells -- separate entities from the ones proposed the by the ICT Division yesterday -- would assess the cases for primary evidence and accordingly transfer them to the court. Arrests can only be made after the cell's recommendation, Anisul had said.