When does creative content break the law?

A short film released this month caused quite a stir on social media. The short titled "Boishommo" (Discrimination) shows a young man, the protagonist, hanging out in the park with his friends, when he spots a woman smoking in public. He takes it upon himself to school her on why she cannot do this—not because smoking in public spaces is illegal—but because she is a woman.

A woman seen smoking publicly pollutes the moral fabric of our society (but a man doing the same thing does not). When his tirade fails to intimidate the lady into changing her "immoral" ways, he uploads a video calling on the masses to find women who dare smoke publicly and upload their clips on social media.

The entire premise of the short, of a man having not only the gall, but considering it his moral duty to chastise women to behave "properly" is bone-chilling. What's next? The length of her pants, her uncovered hair, her desire to even sit outside? Men's need to control women's behaviour is not news to any woman in the world. It is at the root of everything from domestic violence to random men in Ramna Park telling women they should not run in public. What is news, however, is that twisted desire being unabashedly and publicly announced as a call to arms.

There is no dearth of misogynistic content on the internet but at some point, a line is crossed. We don't mean Facebook taking down the video because it "violates community standards". We mean content that violates the law of the land. In the rest of this piece, we discuss how the publishing of such a video is a violation of the laws of Bangladesh.

While Article 39 of the Constitution protects freedom of expression, there are limits and exceptions to this right when such expression disrupts, among other things, public order. The broadcasting of such a video amounts to a criminal offence under the Penal Code 1860, wherein section 505 states:

"Whoever makes, publishes or circulates any statement, rumor or report….(c) with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community or (d) with intent to create or promote, or which is likely to create or promote, feelings of enmity, hatred or ill-will between different communities, classes or sections of people, shall be punished with imprisonment which may extend to seven years, or with fine, or with both." (Only relevant sections have been highlighted for brevity.)

The video violates Penal Code 505 in several ways. First, it is made with the explicit intention to incite men to intimidate women who do not conform to the status quo. The protagonist states clearly that women who smoke must be taught a lesson and expounds a strategy of cyberbullying for achieving that goal. And, this is in the context of a country where women's security is already deplorable. Content like this that seeks to incite any kind of abuse on any woman is especially dangerous.

Second, the video misinterprets the law in a way that creates ill-will towards women. The protagonist vents about the preferential treatment of women in public life (bus seats, scholarships) and says he feels discriminated against as a man—not realising that it is a Constitutional obligation in our country to provide affirmative action for women under Article 28(4). Spreading propaganda that incorrectly argues that the rights enjoyed by women come at the expense of those enjoyed by men is incitement to attack women.

Third, the video encourages people to break the law. Women and Children Repression Prevention Act 2000 in Section 10 clearly states that sexual harassment of women is an offence, and as per the Supreme Court Directives from the BNWLA Case (2010), verbally abusing a woman because of her gender amounts to sexual harassment (Guideline 4). Taking photos and videos without someone's consent is an affront to privacy laws. Sharing such content in electronic format to defame a person violates Section 57 of the ICT Act.

Section 57 of the ICT Act states: "If any person deliberately publishes or transmits or causes to be published or transmitted in the website or in any other electronic form any material which is false and obscene, OR if anyone sees, hears or reads it having regard to all relevant circumstances, its effect being such as it…defames a person, disrupts or creates the possibility to disrupt the law and order situation, tarnishes the image of…any person…or such material instigates people against any person or organization, then this activity of the person will be regarded as an offence punishable with minimum 7 to maximum 14 years of imprisonment and fine of taka 1 crore." (Only relevant sections have been highlighted for brevity.)

In addition to inciting people to violate Section 57 of the ICT Act, the makers of the video themselves violate the same act because by circulating this content publicly they are propagating electronic content that deteriorates law and order by encouraging targeted online and offline harassment of women.

There are many other legally gray issues with the video such as condoning the use of public shaming as a form of vigilante justice. It declares men and women cannot have equal access to public spaces which violates our very Constitution. These and many other points have been extensively discussed by those who have spoken up on social media against the video. As a result of the outcry, the video has been swiftly taken down. Social media activism is the first line of defence for fighting misogynistic content on the internet but let's not forget that the laws of Bangladesh also provide ample ammunition to take that fight offline and hold people accountable for the content they create.

Shammi Quddus is a graduate student at the Harvard Kennedy School and Stanford Graduate School of Business. Arpeeta Shams Mizan, Lecturer of Law at the University of Dhaka, holds an LLM degree from Harvard Law School. The authors gratefully acknowledge the expert legal advice from the Legal Circle.