Analysis: DSA or CSA, fear still grips fingertips
Human rights activists repeatedly pointed out how the DSA was used to repress dissent. Freedom of expression wasn't only muzzled, it was, in fact, criminalised
The replacement of the Digital Security Act with the Cyber Security Act looks like an old trick being rehashed, doing little to ease fears that grip our fingertips on cyberspace.
The Digital Security Act (DSA) was enacted in the year 2018, aimed at replacing the controversial Section 57 of the Information and Communication Technology (ICT) Act, 2006 (as amended in 2013), which was passed during the BNP-Jamaat reign.
Roughly put, Section 57 of the ICT Act made it illegal to post material online that was false and obscene, and which could lead to influencing others to become corrupt or dishonest, or deteriorate law and order, prejudice the image of the state or person or hurt religious belief.
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Before its 2013 amendment, maximum punishment for offences under the section was 10 years' imprisonment and a fine of Tk1 crore. Besides, police had to seek permission from the authorities concerned to file a case and arrest any person under the law.
After the amendment, the maximum jail term was raised to 14 years. And law enforcers were empowered to make arrests without a warrant.
The misuse of the law led to widespread condemnation, prompting the government to scrap the section and introduce the DSA.
In the DSA, however, the sceptre of Section 57 remained, although it was diluted and spread around.
The DSA did little to alleviate fear. It led to even more self-censorship and filing of cases, almost lending a cloud of reimagined Omerta – a blanket silence induced by fear of posting the wrong thing online, or posting something which could be interpreted in a way to fall foul of the law.
Human rights activists repeatedly pointed out how the DSA was used to repress dissent. Freedom of expression wasn't only muzzled, it was, in fact, criminalised.
The newly-proposed Cyber Security Act (CSA) looks to be no different.
Punishment is relaxed in a few sections and some offences have become bailable. What remains, however, is most concerning: the matter of free speech is left in murky waters, dipping into which remains a criminal offence in many cases.
While the changes in punishment can bring a sigh of relief, it does little to alleviate the panic and self-censorship that have become part and parcel of using social media in the country.
The CSA also serves as a tool to modify, or police, human behaviour in cyberspace.
Consider Section-28 (3) of the DSA, which deals with the publication, broadcast etc of information on any website or electronic that "hurts religious values and sentiments."
What can exactly hurt someone's religious values or sentiments isn't defined, broadly or otherwise.
The same section remains in the CSA, although it has become bailable and punishment has been reduced from a maximum of 5-years to a maximum of 2-years.
One of the most-talked-about changes is the scrapping of jail sentences in defamation suits. Section 29 (1) of the DSA titled "Publication, transmission, of defamatory information" provides for a maximum of three-year imprisonment, a maximum of Tk5 lakh in fine, or both.
Under the CSA, the provision for jail time will be scrapped, but the maximum fine will be raised five times to Tk25 lakh.
This is also worrisome. Most people slapped with the hefty maximum fine will be left in a state of financial insecurity. The panic remains, lessened in one aspect, but made more pronounced in the other.
Then there is Section-32 (2) of the DSA, which deals with punishment for deteriorating law and order. It vaguely states that if any person intentionally publishes or transmits anything in the digital sphere which "creates enmity, hatred or hostility among different classes…destroys communal harmony or creates unrest..." then it would lead to a maximum seven-year imprisonment, without bail.
Under the CSA, this has been reduced to five years and the offence is now bailable.
But the offence itself, the "criminal" act, leaves too much room for interpretation and hence misuse.
Indeed, in most changes, it was seen that jail time has been reduced, although the wording remained more or less the same.
Increasingly stricter punishment for repeated offences, however, was toned down in some cases. Also, some offences – which were non-bailable in the DSA – have now become bailable.
While announcing the CSA, Law Minister Anisul Huq himself said the DSA was a cause for alarm for many, admitting that the law was often misused.
The numbers speak for themselves, when it comes to the issue of misuse.
Some 7,001 cases had been filed across the country as of 31 January of this year under the DSA.
The Centre for Governance Studies, in their findings in January, revealed that only 2% sued under the DSA came close to the court.
This meant most of those accused languished in the uncertainty of what was to come – certainly a form of harassment.
Speaking to The Business Standard, Nur Khan Liton, executive director of human rights organisation Ain O Salish Kendra, said, "All the provisions of the old law are kept in the new one, but some changes are made in terms of punishment and bail."
He also said, "It can be said the same repressive law is kept intact but comes in a new package."
The rights activist also said the previous law gave the police extensive power to make arrests or conduct searches, and this has not been amended.
Eminent jurist Shahdeen Malik, in an interview with the BBC Bangla, said, "Only in one or two instances, sentences have been reduced. Also, the provision of doubled punishment for a second offence has been abolished.
"But people who become victims of misuse of this law have nothing to be optimistic about," he said, adding that those who used to be jailed for seven years will now be jailed for three.
Stating that issues such as "insult" and "defamation" should be prosecuted under the civil law, he said, "Such cases are being prosecuted under the criminal law. This remains the main objection. These areas have not been changed."
As the state looks to police behaviour in cyberspace, perhaps it can turn the mirror on itself and see how it has fared in this regard.
The United Nations has already chalked out a set of norms for responsible state behaviour in cyberspace.
Of the 12 norms, one deals with respecting human rights and privacy.
It clearly says that "States, in ensuring the secure use of ICTs, should respect Human Rights Council resolutions 20/8 and 26/13 on the promotion, protection and enjoyment of human rights on the Internet, as well as General Assembly resolutions 68/167 and 69/166 on the right to privacy in the digital age, to guarantee full respect for human rights, including the right to freedom of expression."
These resolutions protect the promotion, protection and enjoyment of human rights, including the right to freedom of expression, on the Internet and in other technologies.
The government is entrusted to abide by these norms. Whether it has done so or not is quite evident.
