The platform for information and communications technology (ICT) companies fear that the proposed regulation for the digital, social media, and OTT platforms will compel the companies to censor their own users, which will hamper their online experience.
As the draft “Regulation for Digital, Social Media and OTT Platforms, 2021” is aimed to make the social media and tech companies liable for the online activities of their users, it may muzzle the voices of the users by both the platforms and the government, they said.
The draft of the regulation has been released by the Bangladesh Telecommunication Regulatory Commission (BTRC) recently on its website for public and organizational stakeholders’ comments. It will be in effect as soon as the final version is out.
Different rights organizations, both international and local as well as corruption watchdogs, have already submitted their take in writing against some of the provisions and requested the government to consider the issues in the final version of the regulation.
What are the social media giants' concerns?
Global Network Initiative (GNI), a collective whose members include Meta, Microsoft, Uber, Zoom, Telenor Group, Yahoo, Google, Nokia, Vodafone, Verizon, Human Rights Watch, Internet Freedom Foundation, Global Forum for Media Development, Wikimedia, Committee to Protect Journalists and others, sent a letter to BTRC recently.
GNI, the international organization working in support of freedom of expression and privacy in the ICT sector, appreciates the BTRC’s focus on providing redress on content determinations.
However, it said it would put undue pressure on intermediaries [platforms] to remove content and share access to user data, and have alarming effects on individual speakers.
It expressed its concern over the broad scope of the bill, from the companies and content it covers, to the significant, often-vaguely defined obligations and enforcement authorities, to potential “traceability” and data sharing provisions that may infringe on privacy rights.
“Such a regulatory environment undermines the otherwise positive aims of the draft regulation, failing to provide sufficient guidance to intermediaries tasked with implementing the law to ascertain which sort of expressions are properly restricted and which are not,” GNI added.
It called upon the BTRC to step back and work with experts and affected stakeholders to revisit the current proposal.
Need more time to implement
On the other hand, Transparency International Bangladesh (TIB) has noted that the draft regulation can be enacted shortly but its implementation should be deferred by two years to allow companies to clearly understand the legal requirements and update their internal processes and policies to ensure compliance without technically being in violation.
This cooling-off period is essential for BTRC, which needs time to modernize its system and introduce processes to ensure smooth implementation, TIB said in a letter to the BTRC.
GNI in its submission argued that companies like Internet service providers, search engines, or web infrastructure are less well-positioned than social media companies to address concerns about particular online content and conduct. If they are subjected to the same liability and legal requirements, they may be forced to disable access to entire internet-based platforms, services, and web pages.
“These types of requirements are likely to have significant implications for smaller and potentially local players in the digital ecosystem who lack sufficient resources for implementation,” GNI added.
Risk of data breach
The global network also said that traceability requirements create unnecessary risks for privacy and data protection, especially in the case of end-to-end encrypted messages.
“End-to-end encryption ensures that only the sender and recipient of a message can decipher its contents. The draft law specifies that no social media intermediary shall be required to disclose the contents of any electronic message. However, the mechanism to decipher the messages between two parties would require the company to break encryption and expose user messages to surveillance by other governments and malign non-governmental actors,” it said.
Breaking encryption in this way may violate Article 43 of the Constitution of Bangladesh, which entitles citizens to a reasonable expectation of privacy in their correspondence and communications, GNI explains.
According to the draft regulation, the social media platforms that offer messaging services will be bound to identify the original source of the information.
The authorities may ask for information if they feel that the message is related to the sovereignty and integrity of Bangladesh, the security of the state, friendly relations with foreign states, or public order, or of incitement to an offense relating to the above or in relation with rape, sexually explicit material or child sexual abuse material, punishable with imprisonment for a term of not less than five years.
If the origin of the information is outside Bangladesh, the source of the information will be deemed to be anyone who shares that information inside the country.
Concern over intermediaries’ safety
GNI expressed concerns about the safety and security of its employees, saying that the draft would destroy their trust in the government.
According to the draft regulation, social media intermediaries must appoint a compliance officer, who must serve as senior company personnel and reside in Bangladesh. This officer can be held personally liable in proceedings related to the intermediary if they fail to ensure due diligence while discharging its duties under the act and rules made thereunder.
GNI says while the desire for clear and responsive reporting lines between relevant authorities and intermediaries is legitimate, the ability to subject individual employees to personal, criminal liability is completely unnecessary, unjustified, and likely to further undermine intermediaries’ trust in the government’s intentions, as well as user trust in intermediaries’ ability to safeguard their rights.
