The newspapers were glorious to read in the morning after Sheikh Hasina fled. After 15 years under an authoritarian regime, journalists were finally able to capture the nation's anger, frustration, trauma, and shattered dreams. For the first time in years, they practiced their craft -- journalism -- freely.
Bangladeshis are not shy about expressing their opinions. At the heart of our society lies the “chayer tong” -- the roadside tea cart or stall, akin to Viennese coffee culture, where the democratization of ideas unfolds.
That’s why the Cyber Security Act of 2023 (CSA) represents the most severe assault on the core of our society. It was the Hasina government’s effort to put lipstick on a pig, essentially repackaging the infamous Digital Security Act of 2018 (DSA).
Moreover, this act served as the primary legal justification for some of the most egregious human rights violations committed against civilians and dissidents. According to Professor Ali Riaz of Illinois State University, nearly 1,300 charges were filed by Bangladeshi police under the ICT Act of 2006 from 2013 to April 2018. Most of these cases invoked Section 57, which allowed for the prosecution of anyone who “publishes or transmits in electronic form any material” considered “fake and obscene,” defamatory, or otherwise likely to “deprave or corrupt” its audience. Both the DSA and the CSA later included these overly broad, vague, and ambiguous terms, imposing severe penalties. Riaz's tracking of the DSA, and later the CSA, identified 1,436 cases filed from October 8, 2018, to June 25, 2024.
Numerous provisions of the CSA pose a direct threat to Bangladeshis’ freedom to speak. After examining the law, I am convinced that, unless abolished, the promise of true democracy in this era of reform and rebuilding will remain merely an empty one.
Numerous provisions of the CSA pose a direct threat to Bangladeshis’ freedom to speak
My analysis is based on feedback from Amnesty International provided after the initial draft of the CSA was released. I cross-checked this with the final law to determine if any of their recommendations were incorporated. The government did not publish the final CSA in English on their website. However, a translation by a private citizen is available for non-Bengali speakers which is largely accurate despite some numbering errors and typos. I’ve highlighted the most concerning sections of the law that would be detrimental to democracy:
- Section 21 targets “making any kind of propaganda or campaign against the Liberation War, the spirit of the Liberation War, the Father of the Nation, the national anthem, or the national flag.” By defining the creation or instigation of propaganda against these national symbols through digital or electronic media as a criminal offense, this section authorizes the imposition of penalties including up to seven years of imprisonment, fines up to one crore Taka, or both. The vague terms and outrageously disproportionate penalties outlined serve as tools for authoritarian regimes to suppress dissent, making it clear that this provision should be completely eliminated. It should not only be permissible but inalienable to question and share opinions about historical facts which is a fundamental feature of a free society.
- Section 25 concerns the publication of "false or offensive information." According to the act, if any person, through any website or any other digital medium, (a) intentionally or knowingly transmits, publishes, or propagates any data or information known to be offensive, false, or threatening with the intent to annoy, insult, humiliate, or malign a person; or (b) publishes, propagates, or abets the publication or propagation of any information, wholly or partly, known to be propaganda or false, with an intention to affect the image or reputation of the state or to spread confusion, such actions shall constitute an offense. This section uses vague and overly broad terms, such as "affect the image or reputation of the state" or "spread confusion," which remain undefined in the list of definitions in Section 2 or elsewhere in the CSA. Consequently, these terms could be misused or interpreted in ways that contravene basic human rights standards, as previously observed under the DSA. Terms such as "annoy," "insult," "humiliate," and "spread confusion" contribute to this ambiguity and remain undefined, leading to arbitrary enforcement and stifling free speech due to fears of prosecution.
- Section 28 addresses the “publication, broadcast, or dissemination of information on a website or in any electronic format that offends religious values or sentiments”. This provision suffers from the same issues of vagueness that plague other sections. Such broad and ill-defined terms, as we have witnessed now, can too easily be misused to stifle democratic process. Holding erroneous views and expressing them, followed by open debate, is the democratic way to pursue truth.
- Section 29 addresses the publication of "defamatory information." While the CSA modifies the punishment for defamation to a fine rather than imprisonment, as was the case under the DSA, it still retains defamation as a criminal offense. These criminal defamation laws should be reformed into civil laws that are more narrowly defined and include defenses, such as the defense of truth or a defense for public interest in the subject matter of the criticism.
- Section 31 outlines punishment for "deteriorating law and order." Despite its name, this section continues to include overly broad provisions that criminalize content alleged to "create hostility, hatred, or prejudice among different classes or communities" or "destroy communal harmony, create unrest, or deteriorate law and order." The absence of precise definitions has led to arbitrary enforcement of this provision, as previously seen under the DSA.
- Section 42 grants police officers extensive powers to conduct warrantless searches of premises, seize computers and similar hardware, perform body searches, and make arrests on-site. This authority is permissible under one of two overly broad conditions: Either the officer believes a crime under the act has occurred, is occurring, or is about to occur, or there is a risk that evidence will be lost, destroyed, altered, or otherwise made unavailable. Officers are merely required to document their reasons for such beliefs. This section should be repealed to insure safeguards against unreasonable searches and seizures, mandate that law enforcement obtain a warrant based on probable cause.
- Section 53 categorizes certain offenses as cognizable, meaning they are arrestable without a warrant, and non-bailable. In the initial draft version of the CSA, like the DSA, offenses such as making any kind of propaganda or campaign against the Liberation War, the spirit of the Liberation War, the Father of the Nation, the national anthem, or the national flag were included under this section. This classification allowed police to arrest individuals associated with these offenses without a court warrant, and significantly restricted the possibility of bail, increasing the likelihood of pre-trial detention. Although Section 21 was subsequently removed from this category in the final CSA, Section 42 still permits the police to arrest individuals based merely on suspicion. Therefore, the removal of some sections from the cognizable and non-bailable categories has had zero impact on reducing the risk of arbitrary detention.
Repealing these problematic articles should be the initial step forward. But can we perhaps be even bolder?
Repealing these problematic articles should be the initial step forward. But can we perhaps be even bolder? Why do we continually witness new versions of repressive legislation targeting freedom of speech -- starting with the ICT Act in 2006, followed by the DSA in 2018, and now the CSA in 2023?
Although the Constitution protects free speech, it is nevertheless ambiguous: Article 39(1) guarantees freedom of thought and consciousness, and Article 39(2) asserts every citizen's right to freedom of speech and expression, as well as press freedom. However, these rights are constrained “subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency, or morality, or in relation to contempt of court, defamation, or incitement to an offense.” This clause explains the origins of the familiar-vague terms found in the CSA, such as “defamation”, “morality,” and “decency.” These terms are highly subjective and grant the government considerable discretion to craft laws that arbitrarily suppress speech.
A productive, scholarly legal debate concerning Section 2 of Article 39 of the Constitution will be a healthy thing. But for such a debate to even take place, the CSA needs to go first. That should be one of the first priorities of the interim government's reform agenda.
Revana Sharfuddin is a predoctoral researcher at the Mercatus Center of George Mason University.
