How to future-proof online content regulation

Bangladesh has witnessed an exponential increase in the creation and consumption of online content in recent years, fuelled by the rapid digitalisation of services and a high internet penetration rate. 

Despite the emergence of a young, technologically adept and digitally attuned consumer class – poised to be one of the largest in the world – the country is yet to adopt any meaningful legal or policy measures to address harmful contents. 

As a knee-jerk response to the legislative vacuum, a slew of public interest litigations has been filed before the High Court Division of the Supreme Court of Bangladesh in the last few years.

For instance, in 2019, a case was filed to challenge the failure of the government to ensure internet safety and called for the adoption of intelligent filtering technology and circumvention system for harmful online content. 

Later, in 2020, another proceeding was initiated to challenge the inaction of the government to restrain the streaming of 'immoral and reprehensible' contents on over-the-top platforms, like Netflix and Amazon Prime Video, and demanded formulation of guidelines to actively monitor and regulate such platforms. 

Subsequently, a committee was formed, which is in the process of drafting guidelines. Earlier last month, another lawsuit was filed to ban certain gaming and video streaming services, including PUBG and TikTok, and to form another committee to formulate guidelines to regulate content and mobile applications. 

Some of these gaming services are now banned in the country. Also in September 2021, in another case filed in the public interest (and summarily rejected on technical grounds), the court chided the BTRC for its failure to prevent smear campaigns on digital platforms.

Any rule-making effort, whether by the executive, legislative or executive branch of the government, requires careful consideration of several important issues.

First, it is important to recognise the various nuances when it comes to content regulation, underpinned by the simple fact that information and communication technology is perpetually evolving and its development traverses national boundaries. 

The digital ecosystem is composed of interrelated components upon which multiple industries and initiatives depend, and therefore content regulation will invariably have far-reaching implications – its impact, for instance, on e-commerce, education and financial services is a virtual certainty. 

Additionally, the fundamental difference between services that facilitate user-generated content (like Facebook and YouTube) and broadcasters of curated content (like Netflix and Hoichoi) should be factored in crafting a legal framework. 

It is also vital that content regulation should not only be viewed through the lens of telecommunication, data protection or digital security regulations, as otherwise, this will choke diversity in digital services and pluralism of contents, and ultimately lead to self-censorship and service disruption. 

Illustration: TBS

This will choke diversity in digital services and pluralism of contents, and ultimately lead to self-censorship and service disruption. For instance, the current efforts of the government to use data localisation as an instrument of content regulation is an example of injudicious policy direction.

Secondly, legislative intervention is inevitable. While the cases above have created a strong impetus for constructive dialogue on content regulation, however, the multiplicity of suits on substantially similar matters carries a risk of contradictory outcomes. 

For example, both the 2020 and 2021 cases called for the formulation of a legal framework, which will invariably overlap because the term "over-the-top platform" used in the 2020 PIL is an umbrella expression that potentially includes gaming and video streaming services. Moreover, even if the courts can introduce a congruous framework, its implementation is a whole other ball game.

Because any legislative or judicial intervention would likely impact digital communication and access to online content, it should be based on principles of good governance and proportionality. 

Any legislation or guidelines designed should be articulated, future-proof, fit-for-purpose, harmonious with fundamental rights related to freedom of expression and privacy, and in line with international comity. 

Also, as the digital ecosystem is not limited by geographical boundaries, such legislation and guidelines should be consistent with international standards and benchmarks. 

Minister Mustafa Jabbar, for example, recently conceded that the Digital Security Act, 2018 is now obsolete in terms of its ability to adequately address harmful contents online, and it is because the law was drafted with a tunnel vision to address certain classes of contents only. 

Therefore, it is paramount that, moving forward, the lawmakers acknowledge that there can be no off-the-shelf solution and take a step back to understand the broader policy and legal considerations. 

Legislation should be conceived using non-adversarial and consultative approaches. The best way forward would be for the executive branch to prepare, and invite opinions on, a white paper outlining the government policies, to encourage the exchange of information and analyses and create awareness on the broader policy issues and likely economic impact.

Shahzeb Mahmood is a Research Associate at Centre for Governance Studies. He can be reached at [email protected].

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect the opinions and views of The Business Standard.