On January 29, 2018, the cabinet approved a draft law, intended to replace the much-criticized Information and Communication Technology Act (ICT). The draft is even broader than the law it seeks to replace and violates the country’s international obligation to protect freedom of speech.
“The proposed law totally undermines the government’s claim that it has no intention of curbing the right to freedom of speech,” said Brad Adams, Asia director. “With at least five different provisions criminalizing vaguely defined types of speech, the law is a license for wide-ranging suppression of critical voices.”
After the repeated abuse of section 57 of the ICT Act to prosecute journalists and others for criticizing the prime minister, her family, or her government on social media, Bangladesh authorities committed to repeal the law. Although the proposed new law to replace the ICT Act limits prosecutions for defamation to those that could be prosecuted under the penal code and imposes an intent requirement for certain offenses, it also contains provisions that are even more draconian than those in section 57.
Section 14 of the draft would authorize sentences of up to 14 years in prison for spreading “propaganda and campaign against liberation war of Bangladesh or spirit of the liberation war or Father of the Nation.” The United Nations Human Rights Committee, the independent expert body that monitors compliance with the International Covenant on Civil and Political Rights (ICCPR), to which Bangladesh is a party, has expressly stated that laws that penalize the expression of opinions about historical facts are incompatible with a country’s obligations to respect freedom of opinion and expression.
Section 25(a) would permit sentences of up to three years in prison for publishing information which is “aggressive or frightening” – broad terms that are not defined in the proposed statute. The use of such vague terms violates the requirement that laws restricting speech be formulated with sufficient precision to make clear what speech would violate the law. The vagueness of the offense, combined with the harshness of the potential penalty, increases the likelihood of self-censorship to avoid possible prosecution.
Section 31, which would impose sentences of up to ten years in prison for posting information which “ruins communal harmony or creates instability or disorder or disturbs or is about to disturb the law and order situation,” is similarly flawed. With no clear definition of what speech would be considered to “ruin communal harmony” or “create instability,” the law leaves wide scope for the government to use it to prosecute speech it does not like.
Almost any criticism of the government may lead to dissatisfaction and the possibility of public protests. The government should not be able to punish criticism on the grounds that it may “disturb the law and order situation.”
Section 31 also covers speech that “creates animosity, hatred or antipathy among the various classes and communities.” While the goal of preventing inter-communal strife is an important one, it should be done in ways that restrict speech as little as possible. UN human rights experts have stated that:
It is absolutely necessary in a free society that restrictions on public debate or discourse and the protection of racial harmony are not implemented at the detriment of human rights, such as freedom of expression and freedom of assembly.
The law’s overly broad definition of “hate speech” opens the door for arbitrary and abusive application of the law and creates an unacceptable chill on the discussion of issues relating to race and religion.
Section 29, like section 57 of the ICT Act, criminalizes online defamation. While section 29, unlike the ICT Act, limits defamation charges to those that meet the requirements of the criminal defamation provisions of the penal code, it is nevertheless contrary to a growing recognition that defamation should be considered a civil matter, not a crime punishable with imprisonment.
Section 28 would impose up to five years in prison for speech that “injures religious feelings.” While this provision, unlike section 57 of the ICT, requires intent, that addition is insufficient to bring it into compliance with international norms. As noted in the seminal Handyside case, freedom of expression is applicable not only to information or ideas “that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.” A prohibition on speech that hurts someone’s religious feelings, reinforced by criminal penalties, cannot be justified as a necessary and proportionate restriction on speech.
“The Digital Security Act is utterly inconsistent with Bangladesh’s obligation to protect freedom of speech,” said Adams. “Parliament should reject the bill and insist on a law that truly respects the right of the country’s citizens to speak freely.”