How Bangladesh’s Section 57 allows the state to gag free speech in the name of law and order

Despite the passing of 47 years since its independence, and various efforts to institutionalise democracy, Bangladesh has never embraced the tenet of freedom of expression. Free speech, as enshrined under Article 39 of its Constitution, remains a highly qualified right that is subjected to restrictions. Although the ruling Awami League won the 2008 elections partially on a popular pledge to build a “Digital Bangladesh”, over the last few years, a draconian law – the Information and Communication Technology Act (enacted in 2006 and amended in 2013) – and its indiscriminate application have made digital speech a heavily policed and punished area. This is particularly manifested in the law’s controversial Section 57.

Section 57 “authorises the prosecution of any person who publishes, in electronic form, material that is fake and obscene; defamatory; ‘tends to deprave and corrupt’ its audience; causes, or may cause, ‘deterioration in law and order’; prejudices the image of the state or a person; or ‘causes or may cause hurt to religious belief’”.

According to Human Rights Watch, between 2013 and April 2018, the police submitted 1,271 chargesheets against journalists and citizens, most of them under Section 57 and with many of the cases involving multiple accused. In July 2017, a Bangladesh public prosecutor told journalists that trials in 400 cases filed under Section 57 had begun. This May, Human Rights Watch published a list of cases filed under Section 57 in the last six-odd years that highlights the rise in digital prosecution, which corresponds with an increase in internet use in the country. Close to half of the population in Bangladesh uses the internet and Dhaka is the city with the second-largest number of active Facebook users (22 million) in the world. Therefore, we see that digital literacy is followed by digital prosecution, and the information highway is becoming a surveillance and prison grid.

Even prior to the spread of digital literacy and the full expansion of Section 57, the court system was frequently used to curb speech and traditional journalism. In a two-week period in 2016, 67 criminal defamation cases and 16 sedition cases were filed by citizens against Mahfuz Anam, editor of Bangladesh’s largest English newspaper, The Daily Star. The country’s largest Bengali newspaper, Prothom Alo, has faced more than 100 criminal cases against its staff since 2013, half of them still awaiting resolution in courts.

A special aspect of prosecution under Section 57 is that cases can be brought not just by the police and other state agencies but also by private citizens. This aspect is vulnerable to wide abuse as it can be used to settle personal grudges. Last year, a private citizen filed a case under Section 57 against academic and professor Afsan Chowdhury for remarks he had allegedly made on Facebook. Earlier this month, actress Quazi Nawshaba Ahmed was detained under the Act and photographer Shahidul Alam arrested under Section 57 for comments they had made online on the massive student protests for “safe roads”.

On Tuesday, a media report quoted Dhaka Metropolitan Police Deputy Commissioner (Cyber Security) Mohammed Alimuzzaman as saying that they have initiated legal action against the persons behind 150 social media profiles for spreading rumours during the student protests, and filed six cases under the Information and Communication Technology Act. Another report said a school headmaster had been arrested for allegedly making derogatory remarks against the prime minister and that he would be booked under the same law.

Crackdown on critics

Successive administrations in Bangladesh have had antagonistic relationships with the media, civil society and even citizens critical of the government. This was evident when the Bangladesh Nationalist Party-Jamaat-e-Islami coalition was in power between 2001 and 2006, with journalists being charged with criminal defamation and sedition cases being filed against civil society members.

Similarly, under a military-backed caretaker government in 2006-2008, the Emergency Powers Rules allowed legal action to be taken against media critics while the military’s intelligence wing, the Directorate General of Forces Intelligence, is known to have used threats and intimidation against journalists critical of the administration.

The end of military rule and the coming to power of the Awami League did not bring about any change in this antagonistic landscape. Instead, by 2009, social tensions were escalating and the space for criticism and dissent shrinking rapidly. This was largely in the wake of a mutiny in the Bangladesh Rifles that left over 70 dead in February of that year. Days after the bloodshed, the government blocked YouTube after a recording of a meeting between the prime minister and Army officers was posted on the video-sharing platform. By 2010, there was concern that the Directorate General of Forces Intelligence was again exerting influence to reduce critical commentary in the media, and journalists and newspaper editors were being threatened for criticising the government or military. Several television channels were also shut down by the state regulatory body.

The ICT Act, 2006

The Information and Communication Technology Act, 2006, has been a key part of the current administration’s policy to integrate digital communication and technology at the national and local levels with its goal of advancing development. This strategy has seen progress in several socio-economic sectors including education, health, poverty reduction, women’s empowerment, food security and export-oriented garments. But beyond the development objective, the Act was also drafted to serve as the primary legal reference for matters related to internet access, and to define freedom of expression online, cover crimes committed through electronic means that do not come under the Penal Code and other legislations, and regulate digital communications.

For instance, by defining hacking as a crime punishable by up to three years in prison or a fine of 10,000,000 Bangladeshi taka ($125,000) or both, the Act recognised the right of citizens to communicate electronically. But legal protections within the law have limited the number of arrests and prosecutions. The possible role of the Act in undermining freedom of expression and speech has caused alarm. Section 57 has been particularly controversial.

How the law was used

While the vagueness of the premises of violations outlined in Section 57 are disconcerting enough, political developments in Bangladesh and the subsequent use of this section by state and non-state actors are even more troubling.

In 2012, gangs of men organised via social networks attacked the Buddhist minority community and destroyed their shrines in Ramu village, following false accusations against a Buddhist man of defamation of Prophet Mohammed on Facebook. Similar attacks against Hindu minorities took place in 2013 in the town of Santhia following the use of a fake Facebook account to create the pretext for premeditated attacks.

Finally, there were the events surrounding the 2013 Shahbag movement, which was mobilised through social media and centred around the demand for the death penalty for war criminals of the 1971 Liberation War. While initially a non-violent campaign that attracted citizens from all social, economic and political backgrounds, the killing of a Shahbag blogger derailed the movement. The death led to protests by Shahbag activists and a counter-mobilisation and violent street attacks by an affiliation of madrasas called the Hefazat-e-Islam, which accused the activists of being “anti-Islam”. Various Islamist groups began creating lists of “atheist” bloggers, leading to a spiral of vigilante murders of secular bloggers and LGBTQ activists.

Against this turbulent backdrop within which misinformation and unverified images were spread through social media, the government amended the Information and Communication Technology Act, eliminating the need for arrest warrants and official permission to prosecute, restricting bail, and increasing prison terms to 14 years. Under this 2013 amendment, a person could be arrested on the basis of a complaint to the police, regardless of whether the person filing it had themselves been prejudiced, defamed or otherwise “injured” by the offending material. This opened the door for arrests to be made for any statement that could be interpreted by any citizen as critical of the prime minister or her family. The Act also instituted a Cyber Tribunal to solely deal with offences under this law.

Ironically, the amendment of the Act was initially inspired by the targeted violence against the Buddhist Jumma community (Ramu), the Hindu community (Santhia), secular Shahbag bloggers and LGBTQ activists (2013-2015). Yet, since its passage, the amendment has rarely, if ever, been used against forms of hate speech and violence directed against minority Hindu, Christian, Buddhist or Adivasi communities. Instead, it has mostly been used against activists, bloggers, journalists, photographers and academics.

The amended Act was used in April 2013 after a list of 80 alleged violators was drawn up by a social committee formed by the government that included several Muslim clerics. It led to the arrest of four bloggers who had expressed their views on religious extremism on social media and were members of the Shahbag mobilisation. The detention and arrest of many more bloggers, Facebook users, journalists and civil society activists who had criticised the government on social media or in the press followed. The majority of the charges involved criticism of the government, defamation, or offending religious sentiments, while the rest were allegations against men publishing intimate photographs of women without their consent.

In addition to frequently using Section 57, which has resulted in the suppression of diverse opinions in the digital space, authorities in Bangladesh have also blocked Facebook, YouTube and other social network platforms without prior notification on multiple occasions.

The frequent use of Section 57 underscores several realities:

1. The use of social media has too often led to unverified allegations and news spreading across the political landscape, exacerbating political tensions. This, in turn, has led, in some cases, to violence and human rights violations.
2. The authorities are ill-prepared to deal with online activism and hence resort to the draconian implementation of Section 57 to quell all forms of speech and freedom of expression, including political dissent and criticism of the administration.
3. The civilian population and media remain extremely vulnerable to the oppressive measures of the government legitimised by a problematic law.

The proposed Digital Security Act

There has been severe criticism of the Information and Communication Technology Act, and Section 57 in particular, on the grounds that it challenges Article 39 of the Constitution, which guarantees freedom of expression. In 2015, prominent members of civil society filed a High Court petition against Section 57 alleging that it violated freedom of expression and had created a hostile environment that promoted self-censorship among bloggers, journalists and citizens. In 2017, following public outrage at the arrest of a reporter for a Facebook post in Khulna district, the Bangladesh government proposed replacing the Information and Communication Technology Act with the Digital Security Act, which it argued would include checks and balances on arrests over speech while being a timely response to cyber crimes.

Comprising 36 sections, the draft Act has not yet been passed by Parliament although it has been approved by cabinet. If it becomes law, it would mean that Section 57 of the Information and Communication Technology Act, along with Sections 54, 55, 56 and 66, would be technically “repealed”. But critics have expressed alarm about the draft law, claiming it is simply a redistribution of the disturbing provisions of Section 57 into four sections (21, 25, 28 and 29) and is in fact more far-reaching and draconian than its predecessor. In January 2018, the cabinet secretary stated that the Digital Security Act was not designed to target journalists. But journalists point to provisions that treat “the use of secret recordings to expose corruption and other crimes as espionage”, arguing that this would “restrict investigative journalism and muzzle media freedom”.

There are concerns about other provisions too. For instance, Section 21 of the draft law proposes a 14-year jail term for anyone convicted of “negative propaganda and campaign against liberation war of Bangladesh or spirit of the liberation war or Father of the Nation”. Section 25 (a) says publishing information that is “aggressive or frightening” is punishable by up to three years in prison, without defining how such determinations would be made.

Section 28, which deals with speech that would be considered to “injure religious feelings” and carries a prison term of up to five years, requires proof of intent. The abuse of such a provision to target citizens in the context of Bangladesh raises significant concern. Section 29 focuses on online defamation but, unlike the Information and Communication Technology Act, limits such charges to those that meet the requirements of the criminal defamation provisions of the Penal Code. But this still runs contrary to a growing argument in the country that defamation should be treated as a civil matter and not as a crime carrying a prison sentence.

Section 31 says posting information that “ruins communal harmony or creates instability or disorder or disturbs or is about to disturb the law and order situation”, and speech that “creates animosity, hatred or antipathy among the various classes and communities”, would carry a prison term of up to 10 years. But it does not clearly define what kind of speech would be considered a threat to “communal harmony” or one that would “create instability”. Given past experience, we can expect speech aimed at minority populations to not be the main focus.

Shrinking space for dissent

Given the lack of robust definitions of what would constitute violations of several such provisions, it is possible to extrapolate that similar to Section 57, the door to misuse of the proposed Digital Security Act to target journalists, academics, and private citizens remains open. Combined with the harshness of the potential penalty laid out for each violation and the established record of the number of journalists, bloggers and civil society actors who have been arrested, detained and even jailed under Section 57, it is quite conceivable that the proposed law would increase the possibility of self-censorship and further curtail the right to freedom of speech and expression as per Constitution.

As the space for dissent narrows in neighbouring India and Pakistan, Bangladesh, in its efforts to remain a democracy, should be vigilant of the slippery slope of gagging fundamental rights and freedoms in the name of “law and order” using draconian legislation. While recognising the record of abuse and misappropriation of Section 57 and seeking its repeal is a step in the right direction, implementing the Digital Security Act with its existing flaws would usher in fresh crises.

The current trend of silencing its citizens through legal intimidation does not bode well for the country’s democracy. Can the government step back from the temptations of narrowing the space for public discourse and instead move forward to harness digital technology to advance achievements, bring about economic growth and greater social stability? This is the question that must now be answered.

Katatare Prajapati Collective (Katatare.Prajapati@gmail.com) is a group of Bengali academic scholars and activists.