Assessing Digital Security Act 2018
Freedom of expression is a fundamental and universal human right that applies equally to speech communicated on the internet and speech communicated through traditional means. This freedom is not unlimited, can be subject to restrictions only if they are 'construed strictly' and 'established convincingly'
Article 19 of International Covenant on Civil and Political Rights (ICCPR) and Universal Declaration of Human Rights (UDHR) entrusted that restriction on freedom of expression must be prescribed by law, follow a legitimate aim and essential in a democratic society. This is also known as the three-part test. The recently enacted Digital Security Act fails the three-part test in ICCPR Article 19.
The overly-broad and impermissibly vague language of Digital Security Act 2018 fails to clarify the prohibited conduct and it fails to adequately warn citizens of what conduct might be punished due to imprecise language and unclear provisions. The law empowered the law enforcing agencies with arbitrary power and it has an extensive vagueness in the definition of "Spirit of the Liberation War." Therefore, it is clear that the law would rob the people of their basic human rights.
Even if the Digital Security Act pursues a legitimate aim, it is not necessary as there are lesser means available to achieve the purported aim. Rather, it would create a sense of insecurity among journalists, particularly among investigative journalists. According to the Sunday Times v United Kingdom (ECtHR, 1979), to be necessary for a democratic society, a restriction on expression must further a legitimate government aim and be proportionate to the intended aim.
The Digital Security Act, 2018 criminalizes certain acts, section 8(2) has allowed the police to block the information and the law limited the scope to write against socio-religious harmful elements such as unlawful fatwa. These terms are imprecise, undefined, and disproportionate to governments proposed aim of security in digital space. While government enacted the law to prevent crimes through digital devices and provide security in the digital sphere, but ultimately it will be policing media operations and control media freedom and freedom of speech and expression as guaranteed by the Constitution of Bangladesh.
The law not only threatens criminal sanctions but it imposes limitless fines and imprisonment. It is important to notice that out of the twenty provisions of the law that deal with offences and punishments, 14 are non-bailable. The law provides in its section 17 that if someone uses digital media to intimidate people or cause damage to the state, he/she will face imprisonment for 14 years or TK 1cr fine or both.
Section 28 provides 10 years imprisonment or 20 lakh taka fine for hurting someone's religious sentiments. The imprisonment sentence imposed on the law was disproportionate because it would create a "chilling effect" where citizens are discouraged from discussing the conduct of officials in fear of punishment. In Burkina Faso, a journalist who wrote two articles accusing a government official of corruption was sentenced to one-year imprisonment and $12,000 in monetary penalties. African Court on Human and Peoples' Rights (ACtHPR) held that Burkina Faso must amend its law to disallow criminal penalties for defamation and reasoned that the punishment represented a disproportionate interference for criticizing a public figure.
There is a common practice that if there are various options to protect the legitimate interest, that which least restricts the right must be selected. In other words, a government cannot 'use a sledgehammer to crack a nut' and thus must protect the freedom and right of the citizens as granted by the constitution.
Mustak Ahmed Shimul is as an Intern lawyer with the A.F Hassan Ariff & Associates.