Digital Security Act: A tool for harassment

The Digital Security Act (DSA) was enacted in 2018 to provide cyber security to citizens, but its wide scope and vague provisions are being exploited for more nefarious purposes.

Human rights defenders have repeatedly highlighted that the act can be used as a weapon to muzzle contrarian voices from exercising their freedom of expression, particularly the press, but this is only the tip of the iceberg of problems that it poses. The act can be abused to harass anybody from any profession, not just journalists. 

The most dangerous aspect of the DSA is the wide range of offences it considers cognizable and non-bailable. Such offences allow police to conduct an investigation and carry out an arrest without an order of the court or warrant, and the accused has no choice but to languish in jail until he is tried.

Even if the case is eventually dismissed, the damage has already been done.

All offences under the previous Information and Communication Technology (ICT) Act, 2006 were initially non-cognizable and bailable. However, an amendment in 2013 made Sections 54, 56, 57, and 61 cognizable and non-bailable.

Sections 55, 58, 59, 60, 62, 63, 64, and 65 were left as non-cognizable and bailable, but the vast majority of ICT Act cases were filed under Section 57, which concerns the posting of fake, obscene, or defamatory information on an electronic platform that can disrupt law and order or hurt religious sentiments.

The ICT Act was used to harass many freethinkers in Bangladesh, and the situation has only become worse since it was replaced with the DSA in 2018. Most of the complainants in DSA cases were found to be affiliated with the ruling party or the police.

Human Rights Watch, in its World Report 2022, said authorities use the Digital Security Act (DSA) to “harass and indefinitely detain” journalists, activists, and others critical of the government, resulting in a chilling effect on expression of dissent.

Author and social activist Mushtaq Ahmed died in prison on February 25, 2020, after being arrested under the DSA. He was in custody for ten months and denied bail by courts six times.

Ahmed Kabir Kishore, a cartoonist and social activist, languished in prison for more than 10 months before getting out on bail on March 4, 2021. He was denied bail six times before being released following widespread protests and an international outcry. He alleged that he was tortured in custody. He and six others were indicted in February 2022.

Between 2006 and 2013, only 426 cases were filed under the ICT Act and the number of people arrested or prosecuted was very low. In 2013, the year it was amended, only three cases were filed.

But in the following year-- 2014 – the number of cases jumped to 33. It then continued to grow to 152 cases in 2015, 233 cases in 2016, 568 cases in 2017, and 676 cases in 2018.

Many accused were arrested even before an investigation, and about two thirds of the cases saw the accused acquitted during the trial stage, according to cyber tribunal data.

DSA: 147 sued, 67 arrested each month

An average of 147 people were sued and 67 arrested under the Digital Security Act in each of the 11 months preceding February 2022, according to a report by the  Centre for Governance Studies.

Between January 2020 and March 2021, 18 people were arrested and 61 were accused each month.

The report recorded the occupations of 315 of the arrestees, 80 of whom were politicians, 59 journalists, and 47 students. The report found that 2,244 people had been accused in 890 cases in the last two years.

The report identified plaintiffs in 508 cases. Among them, 33% were affiliated with the ruling party and 22% were from the police.

According to different media reports, more than 1,500 cases were filed under the DSA from January 2020 to March 2021. As many as 925 cases were filed in 2018, 1,189 cases in 2019, and 1,128 cases in 2020.

In the 26 months preceding February 2022, 207 journalists were prosecuted under the Digital Security Act, said the report by the Centre for Governance Studies.

Seventy of them were associated with national-level media houses while 117 were local journalists, according to the report titled "The Unending Nightmare: Impacts of Bangladesh's Digital Security Act-2018", released in April this year.

Article 19, a London-based NGO, documented a total of 10 cases against 23 journalists under the DSA between January and May this year, with three arrests.

Most of the victims of these cases are still in custody as trials have not been completed.

Most used DSA provisions

There are 22 sections in the Digital Security Act 2018 which deal with offenses and penalties. Details of the cases analyzed by CGS show that 16 sections have been used. 

In some instances, cases have been filed against the same person under multiple sections, according to the report.

In the cases filed in the 26 months preceding February 2022, CGS found that Section 25 was used in the most instances (124), followed by Section 29 (118). However, more people were found to have been accused under Section 29 (379).

Section 25 deals with the publishing and sending of offensive, false or fear inducing data-information, while Section 29 deals with publishing, broadcasting and disseminating defamatory information.

UN: Repeal the DSA

Reiterating a call for repealing the Digital Security Act, Irene Khan, United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, said the Digital Security Act of Bangladesh imposes draconian punishments for a wide range of vaguely defined acts.

In a report submitted to the 50th Session of the UN Human Rights Council in Geneva ending July 8, 2022, she said fake news laws generally failed to meet the three-pronged test of legality, legitimate aims and necessity set out in Article 19 (3) of the International Covenant on Civil and Political Rights.

“An example of such flawed legislation is the Digital Security Act of Bangladesh, which imposes draconian punishments for a wide range of vaguely defined acts encompassing national security, criminal cyberlibel and disinformation, and bestows significant and highly intrusive investigative, search and seizure powers on the authorities,” she said in the report.

“Its use has led to the arbitrary detention, torture and custodial death of journalists, and chilled journalism online and offline,” said Irene Khan in the report.

Article 19, in its statement on June 12, said the persisting culture of impunity and increasingly fragile state of freedom of expression in Bangladesh has created an atmosphere and culture of fear and self-censorship.

"Admitting the fact that the law has been misused and abused, several responsible ministers in the recent past have promised to reform the law with an assurance not to arrest journalists immediately sued under the law. However, the reality is different; cases and arrests under this law are rampant," said the statement, quoting Faruq Faisel, regional director for Article 19 South Asia.