Electronic crime is at present a very live issue in Bangladesh. Every day the number of internet users is increasing and with the advent of smartphone devices, information is literally in your palm now. However, the open nature of the cyber world allows people to interact with a level of independence not imaginable in the real world, and naturally this luxury is exploited by criminals to serve nefarious purposes. It is inevitable that laws are necessary to deter evil schemes from being materialised in the guise of freedom of information exchange. It is essentially a question of fine balance.
Section 57 of the Information and Telecommunication Act, 2006 makes it a serious offence if any person deliberately publishes or transmits or causes to be published or transmits in the website or in electronic form any material which falls into any of the following categories:
Fake and obscene Likely to induce person to immoral or corrupt acts Causes defamation Causes to deteriorate or creates possibility to deteriorate law and order Prejudice/tarnishes the image of the State or person Hurts or causes to hurt religious sentiment or uses any such statement to instigate any person or organisation
If a person is found guilty of any of the above he may be sentenced to imprisonment for a period of maximum 14 years and minimum seven years. Moreover, the offence is non-bailable which means court will generally not give bail unless the accused can satisfy the court that there is no reasonable case against him. Also, police may arrest a person any time without obtaining an arrest warrant from the magistrate.
At first instance the above law appears to be a draconian provision and is also to some extent vague. Below I will make some observations about it.
Definition is not precise
It is not explained with sufficient clarity what amounts to “hurting religious sentiment” or “tarnishing image of the state or person” or “induce a person to immoral and corrupt act.” The threshold for commission of the offense is not clearly defined. So, hypothetically speaking, is it an offense if someone criticises the act of the government in very strong language or even goes further to call a minister or prime minister by foul names?
Wide discretionary power
In light of the fact that the definition of the offense is not sufficiently clear, it leaves room for application of arbitrary and discretionary actions on the part of the law enforcement personnel which may very well lead to abuse of process in some circumstances. There is room for selectively targeting members of particular political belief and putting them behind bars in the name of law enforcement.
Punishment is too harsh
If a person is found guilty the minimum punishment is seven years. So it appears a person may be locked up in prison for seven years of his life for advocating civil unrest against government by electronic means such as blogs or social media. There may be instances when such a harsh punishment is justifiable, for example, when someone advocates the murder of another.
So the maximum punishment of 14 years makes sense. But the minimum punishment of seven years imprisonment is unreasonable. If a person is convicted, the court is obliged to give him a sentence of at least seven years, no matter what impact such statement had on the overall scheme of things.
Ultimately, this law may be challenged in a court of law, for failing to live up to the standards prescribed by our constitution which gives every citizen a guaranteed right to freedom of expression subject to reasonable restriction. But as of now it stands as the law.
As discussed above, given the lack of clarity in the law, at present there appears to be ample room for abuse of process of this otherwise necessary piece of legislation.
