The parliament of Bangladesh on June 11 passed the Anti-Terrorism (Amendment) Bill 2013 which will allow the courts to accept videos, still photographs and audio clips used in Facebook, Twitter, Skype, and other social media for trial cases. Experiences in several countries show that the criminalisation of opinions expressed online through social media or blogs are not only a violation of freedom of expression and the right to privacy, it also represents a new pattern of persecution of any voice of dissent, as well as human rights defenders. This article is an exploration of how the courts should treat the future of privacy and free speech in the age of Facebook and Google.
The broad term “speech” can include verbal, nonverbal, visual and symbolic expressions. Even a simple “like” on a Facebook page has now been termed as a form of speech. The freedom of speech or freedom of expression is one of the basic constitutional rights guaranteed under Article 39 of the constitution of Bangladesh.
The concept of the right to privacy is relatively new to Bangladesh and this subcontinent. Nonetheless, as stipulated in Rajgopal vs. TN, the right to privacy or the right to be let alone is implicit in the right to life and liberty (Article 32). A citizen has a right to safeguard their own privacy, as well as that of their family, marriage, procreation, motherhood, child-bearing and education among other matters. No one can violate this right by publication in the form of media or otherwise.
The exercise of free speech can interfere with many values such as order, reputation, privacy, decency and intellectual property. Therefore, exceptions to free speech have developed over the years, in order to prevent undue infringement of such values and rights. The government has decided that speech that could cause substantial harm to the public is not speech originally intended to be protected by the fundamental rights as guaranteed under the constitution. In any event, when deciding whether an instance of suppression of free speech is unconstitutional, the courts must weigh the importance of freedom of speech against the potential dangers if the speech is allowed.
In legal terms, once allowed, certain types of speech may be restricted by the government and, depending on the gravity of the offence, civil and criminal actions may be imposed upon them. Therefore, the government has justified their action of imposing criminal liabilities against certain instances of freedom of expression after a number of high-profile stories in Bangladesh centring on issues of free speech.
The principles for justifying the state’s action against any individual’s exercise of freedom of expression are: (1) Fighting words: Fighting words are those which by their very utterance inflict injury or tend to incite an immediate breach of the peace (Bloggers’ comments against Gonojagoron Moncho); (2) Causing panic: The classic example of speech causing panic is someone yelling “Fire!” in a crowded movie theatre (Rangunia Mosque fire incident). Speech may be suppressed where a reasonable person would know that his speech is likely to cause panic and/or harm to others; (3) Incitement to crime: Speech that spurs another to commit a crime (photoshopping Sayedee’s face on the moon); (4) Sedition: Speech that advocates unlawful conduct against the government or the violent overthrow of the government (Mahmudur Rahman’s speech against the International War Crimes Tribunal); (5) Defamation: Imposing civil liabilities which include both libel and slander; (6) National Security: This standard is extraordinarily strict and hard to prove, making it a rather narrow exception to free speech.
The above mentioned principles are achieved by imposing criminal liability upon the citizens through the following legislation: (1) Information and Communication Technology Act 2006, Section 57: Makes a false speech in electronic as an offence punishable of rigorous imprisonment not exceeding 10 years and fine not exceeding one crore taka; (2) Code of Criminal Procedure 1898, Section 54: An order of detention upon receiving a complaint or government’s order; (3) The Penal Code 1860, Section 500: makes it an offence of defamation with simple imprisonment for a term which may extend to two years, or with fine, or with both; (4) The Anti Terrorism (Amendment) Bill 2013 which widens the scope of sanctions provided in the Anti Terrorism Act 2009 (ATA) by allowing the courts to accept videos, still photographs and audio clips used in Facebook, Twitter, Skype and other social media for trial of cases.
In every era, there is a desire to regulate speech in a systematic way that we look back on retrospect as unfounded and dangerous. But when we think about the age of the Internet — never before have we faced these challenges (liking a Facebook page as an offence) and it is very easy to overreact to that problem from the point of view of the State.
The current events (the role of the internet in burning down Buddhist temples, manipulating people into believing that Sayedee’s face was sighted on the moon, the hatred between atheists and Muslim fundamentalists towards one another, the Skype conversation of ICT justices, JU lecturer’s comment about the prime minister, BNP chief whip Joynul Abedin Faruk’s scandal and the consequences of banning Youtube for several months) challenging the constitutional law of Bangladesh in regard to the freedom of expression in the age of internet might be in part about protecting art and music, in part about increasing knowledge by allowing challenges to the conventional wisdom, in part about ensuring that various democratic goals are understood in different ways.
Anyone who has spent more than a few minutes on the internet will have come across the abusive and offensive comments that can reside on social networks and in comments sections. The comments are nothing new – they’ve existed since the dawn of the web in the 1990s. But what’s changed is how quickly and how widely these messages can spread through social media, and of course with the rapid diffusion of technology, the number of “cyber-crimes” has increased dramatically.
Privacy vs National Security
Is “liking” something on Facebook protected by the constitution? The executives of the state argue that we have no expectation of privacy in public places like Facebook or Google. However, over a series of cases in Western world, the courts seem to follow social norms. This scenario leaves unanswered the question of whether the state would be allowed to keep 24/7 surveillance upon everyone’s account, which would mean that we would not be living in a democratic country but in a fascist dictatorship. Whether “liking” becomes constitutionally protected or not, it will still be unclear what forms of publicised opinion will be protected or unprotected.
In an attempt to successfully charge the actual wrongdoer, the use of fake names on social networking sites can also act as a barrier to cases being brought before the court. In order to take a case against a person who has said something on the internet, you have to first find and identify the perpetrator, which is not always easy online. One can get a court order against Twitter or Facebook or whichever website is involved to hand over the IP and email details of individual accounts, but that requires an expensive trip to court which can end up doing you more harm than good. Therefore, screening technology has to be effective and minimally intrusive, otherwise imposing criminal liabilities in such cases (i.e. against the social norm) is not justifiable and from this perspective the act of walk-out while passing the Anti-Terrorism Act 2013 by the opposition in recent days is acceptable. Only a mobilised public can pressure the government into striking a reasonable balance when the privacy costs of a particular technology are dramatic, visible, and widely distributed. People experiencing the invasions personally, as a kind of loss of control over the conditions of their own exposure, followed with a cumulative public outcry will ultimately make the protest successful in near future.
Given the complexity of asking courts to balance clashing values of free speech and privacy in a world where there is no agreement about what privacy demands, my instinct is that technological solutions here are more promising than legal ones. Instead of initiating criminal proceedings against individuals regulating the social media with instantaneous action (not banning like Youtube) by working in cooperation with Facebook authorities would have been an appropriate method. These methods may include withdrawing certain comments, photo, advertisement and initiating warning procedure before blocking the IP address permanently. But unfortunately, Facebook’s financial interests clash dramatically with these sorts of solution that could protect privacy. Facebook has been moving in the opposite direction, toward transparency rather than privacy. In defending Facebook’s decision to make the default for profile information public rather than private, Mark Zuckerberg said that Facebook had an obligation to reflect current social norms that favour exposure over privacy.
Dignity vs Freedom of Speech
A few months ago, a young lecturer of Jahangir Nagar University posted the following Facebook status while in Australia on educational leave: “Tareq Masud died as a result of government giving license to unqualified drivers. Many die, why does not Sheikh Hasina die?” The highest court of Bangladesh has already asked the government to bring sedition charges against this lecturer as it advocates unlawful conduct against the government.
In contrast,can citizens mobilise to demand a similarly reasonable balance when the threats to privacy come not from government, but from private corporations like Google and Facebook, and when the parties responsible for exposing too much personal information are not the government, but ourselves? This question arose in the recent case of the BNP chief whip Joynal Abedin Faruk’s scandal when conversation between him and a lady were leaked through internet; can private corporations like Facebook and Google be compelled not to expose it to a greater extent? Here, I am less confident.
Dignity, by contrast, protects the norms of social respect that we accord to each other. Dignity is a socially constructed value. It varies tremendously by country and by society and by epoch. In Germany, it is considered a violation of dignity and law to give someone the finger on the highway. It is an offense against honour. Imagine how citizens in California would fare under a regimen like that. By contrast, the French are much more concerned than Americans about being asked about their salaries.
It is foolish to generalise about international norms when it comes to dignity because they vary so much. But precisely because dignity is a socially constructed value, it is very difficult to preserve by judges or by private corporations in the face of the express preferences of citizens who are in fact less concerned about dignity than exposure. For instance in a country like America, it is hard to formulate a legal remedy for the injury that Ruhul Khandakar, lecturer of Jahangir Nagar University suffered.
Right to be forgotten
Imagine a scenario where Bangladeshi model Prova is participating in the upcoming 2025 election as a candidate. You could well imagine a candidate on the campaign trail, thinking better of those youthful pictures and trying to remove all references to her in order to protect her from embarrassment.
A proposal came from Alex Türk, a French data privacy commissioner, who endorsed the creation of a “right to oblivion.” More recently, Viviane Reding, the EU commissioner of justice and vice president of the European Commission, proposed to codify the “right to be forgotten.” How exactly this was supposed to be administered is not clear. Türk proposed creating some kind of international body, perhaps an “international commission of forgetfulness,” which would evaluate, on a case-by-case basis, whether or not a particular request to take down a particular picture should be granted as an offense against the dignitary or moral rights of the offended individual.
As proposed, however, the right to be forgotten seems to create a legal entitlement for people to remove photos they have posted voluntarily, even after those photos have been widely shared. In a recent case an Argentine judge held that Google and Yahoo were liable for moral harm and violating the right to privacy of a pop star who unwisely posed for some racy pictures, which got posted on the internet. Later on when she decides to take down the pictures, the Argentine judge agreed and ordered Google and Yahoo to take the pictures down. Essentially, Yahoo’s response was: “Technologically, it is so hard for us to do this.”
As Peter Fleischer, the global privacy counsel at Google has noted the right to be forgotten is a sweeping concept that can include a series of very different claims. The least controversial is the right to delete something I post online on my own Facebook page or album – a service that most platforms already provide. But the right to delete becomes more controversial if I post something and someone else copies it onto another site. Surely internet platforms should not be asked to delete pictures of me from someone else’s album without the owner’s consent. Even more difficult, he notes, is the question whether I should have the right to delete truthful but embarrassing information that someone else posts about me.
More recently, a German company called X-Pire announced the launch of a Facebook app that will allow users automatically to erase designated photos using electronic keys that expire after short periods of time. The application ensures that once the timestamp on the photo has expired, the key disappears. Therefore, it is apparent from the discussion herein above that courts may be better equipped to regulate and working in cooperation with Facebook rather than imposing criminal liability going much beyond internationally-accepted standards, which opens the door to an arbitrary application of the Anti-Terrorism Act 2013 approving the courts to accept videos, still photographs and audio clips used in Facebook, twitter, Skype and other social media for trial of cases.
Conclusion
I have tried to stress the complexity of protecting constitutional values like privacy and free speech in the age of Google and Facebook, entities that are not formally constrained by the constitution. On the one hand, I am trying to offer an optimistic story, escaping your Facebook past, and promoting free speech on YouTube and Google. In each of these cases, it is possible to imagine a rule or technology that would protect values like free speech and privacy in a changing world. An expansion of disappearing data technology and an enlightened leadership at companies like Google and Twitter also needs to protect free speech rather than suppress it. But whether these good rules or technologies will in fact be adopted depends crucially on what sort of rules and technologies the public demands. Facebook has reluctantly made it easier to delete data in the face of user demand (and legal threats from Europe), although it is still betting that the demand for privacy will be outweighed by the demand for exposure. And Google, despite its commitment to free expression, chose not to resist political demands to expand its categories of prohibited speech on YouTube. Those categories, of course, are ultimately enforced by users and therefore reflect community standards rather than resisting them. Will Government of Bangladesh take note of these international views on the concept of freedom of speech in this new era of Facebook and Google while imposing criminal liability upon the citizens? Will citizens around the globe demand laws and technology that protect liberty rather than threaten it? The choice is ours.
