From DSA to CSA: Key areas of concern stay

Not only was the Digital Security Act not repealed, the proposed changes in the law were not in line with the recommendations made by Bangladesh civil society groups and the United Nations.

Also, no stakeholders were invited to review the draft changes before it was approved in the cabinet on Monday, and Cabinet Secretary Md Mahbub Hossain has said the draft will not be revealed to the public before it goes to parliament as a bill for its passage.

In its technical note given to the government, the United Nations Office of the High Commissioner for Human Rights (OCHCR) called on the government to decriminalise defamation as well as dissemination of "offensive, false or threatening data-information".

In many countries, it is a civil liability issue. Moreover, in the DSA, the clauses do not include checks such as whether the information being disseminated is in public interest, the OCHCR points out.

"Bangladesh should consider decriminalising defamation, and in any case, it should countenance the application of criminal law only in the most serious cases […] It should consider criminal defamation laws with civil law that are more narrowly defined," recommended the OCHCR.

Section 25, which criminalises the publication of "false", "offensive" or "threatening" information, still carries a jail term, albeit reduced by a year to two years in the newly named Cyber Security Act. In addition, offenders can still be fined Tk 3 lakh.

The Centre for Governance's Studies' (CGS) DSA Tracker logged a total of 381 journalists being accused until mid-July under this law since its inception in 2018.

As many as 100 of them were sued under section 25, which still carries a jail term.

Section 29, which criminalises defamation, no longer carries a jail term, but the fine has been increased to Tk 25 lakh. CGS data also show that one out of four journalists prosecuted under DSA are booked under this section.

Similarly, section 31 still carries a jail term of 5 years – reduced from 7 years. The section, which criminalises the "deterioration of law and order", is another provision widely used to sue journalists, according to the CGS data.

The section has now been made bailable.

"Your (journalists') concerns are of great importance to the government. I can say that you will be happy with the amendments," Law Minister Anisul Huq had told reporters at the Secretariat on 25 July.

The OCHCR in its technical note called on the government to amend section 31 and only penalise speech "within the narrow scope of incitement to hatred."

"An amended version of section 31 should define incitement narrowly as the broader the definition in domestic legislation, the more it opens the door for arbitrary application," it said.

The OCHCR had also recommended that the government amend section 32, which refers to "breaching of government secrecy" saying, "the broad scope of this section coupled with the harsh penalty of a maximum jail term of fourteen years and/or fine, could have a negative impact on investigative journalism."

The section remains as is, with the only difference being a reduction in penalty to 7 years, and the offence is now bailable.

The OCHCR had also commented that section 21 of the law be changed. This section, which criminalises any kind of propaganda or campaign against the Liberation War, spirit of the Liberation War, Father of the Nation, national anthem or national flag, was called overly broad by the UN body.

It said that this criminalised legitimate expression, lacked precision and made it difficult for individuals to regulate their conduct to avoid prosecution.

"The harshness of the penalty, including life imprisonment for repeat offences, could act as a deterrent to legitimate public discourse," it said, asking the government to repeal this section.

The section has been kept intact, and this is still a non-bailable offence, although the jail term has been reduced from 10 years to seven.

The OCHCR had also pointed out that the Digital Security Act allows for warrantless searches, seizures and arrests if a police officer believes "that an offence under this Act has been or is being committed, or is likely to be committed in any place". The UN body had said that Bangladesh should amend this section to ensure that law enforcing officers know what kinds of expression are restricted, and safeguards are put in place to make sure that there is no abuse of power.

The section, previously section 43 and currently section 42, remains as is, word-for-word.

In addition to these, a group of civil society members had met the law minister on March 30, and submitted a recommendation pointing out that the law is being used disproportionately against minors, and that the law includes nothing to ensure that their rights are protected.

This recommendation was not taken up although there are approximately 20 children in prison, incarcerated under this law, said the civil society group, including Dr Iftekharuzzaman, executive director of Transparency International Bangladesh; Barrister Jyotirmoy Barua; Professor CR Abrar and others.

"There is no alternative to repealing the law because it violates fundamental rights and the rights of citizens," the group had said in its submission to the minister.

Experts point out that the issue with the law is not just with its penalties, but the offences described under the law.

DSA Tracker shows that the majority of those filing the cases are politicians (38.7 percent) and 80 percent of those politicians are directly linked with the ruling party.

While Awami League leaders and activists filed as many as 246 cases, only three of those cases were from BNP, two were from Jatiya Party, and one each from Islami Andolon, Hefajat-e-Islam and Communist Party Bangladesh.

Dr CR Abrar, an academician who was a part of this civil society group, said that the new Cyber Security Act is nowhere near the recommendations they made.

"Our only recommendation was to repeal the law. The minister was adamant that the law must be kept and amended, but we pointed out that amendment is not an option," he told The Daily Star yesterday.