In Bangladesh, like many countries in the world, the internet has fast become one of the key instruments for the exercise of the right to freedom of expression. It combines within one medium both the right to receive as well as the right to express and disseminate information, ideas and opinions, be it in the form of writing, or through audio or video.
Freedom of expression and privacy are fundamental human rights and this has been recognised not only by our society but also guaranteed in our constitution. More than ever, technological advances, particularly the internet, make it easier for people to publish and respond to news, information and opinions. Online freedom is now a question of global concern rather than just national.
Commonly, issues of internet freedom concern individuals interested in advocating improvements to their own countries, cultures and communities. It is now the common view shared by many legal intellectuals around the world that the governments should cooperate to improve respect for international human rights principles and to fashion regulations that take account of the internet’s global scope.
Freedom of expression is a fundamental human right, both in itself and due to the role it plays in guaranteeing other rights as well as draws on values of personal autonomy and democracy. Freedom of expression is closely connected to freedom of thought and is a precondition for individuals’ self-expression and self-fulfilment.
The right to express oneself enables an open debate about political, social and moral values, and encourages artistic and scholarly endeavour free of inhibitions. Freedom of expression is not absolute, since open debate and personal autonomy can cause conflict between the values and rights respected by the system.
Therefore, rights of expression can be limited by the system and international law allows for limited restrictions on it to protect other important social interests such as privacy, an individual’s reputation and public order. It is never easy to strike an appropriate balance between these other interests and freedom of expression, as the highly developed jurisprudence in this area illustrates.
One of the most controversial issues is how to balance the need to protect society against the potential harm that may flow from using unrestricted internet resources, and the need to ensure respect for freedom of expression and to preserve a free flow of information and ideas. Therefore, when we think about our country, the challenges are harder considering the social and cultural values we hold.
Undoubtedly, the internet as a vehicle for expression serves various functions. It is simultaneously a publishing tool and a communications tool, allowing millions around the world to communicate. However, occasionally, because of its diversity of content and ease of use, the internet has become controversial.
As with any other tool, it can be used for different purposes, good and bad. On one hand, it allows up-to-date news about current events to emerge from countries where other communication means are heavily censored. On the other hand, the internet can be used to facilitate crime.
In addition, because of the global nature of the internet there are problems with regard to content. Therefore, the case is put for stronger internet regulation and this raises far more important issues with regard to the right to freedom of expression.
In a number of countries, public policy has the effect of controlling access to the internet. The most overt and extreme way of restricting and censoring access to the internet is by prohibiting access altogether.
There are few countries like Bangladesh which have adopted laws regulating communication in a way to control internet content as well as blocking entire sites without considering one of the biggest strengths of the internet its variety of content.
Thus, failing to ensure freedom of expression as the right to freedom of expression goes further than simply prohibiting interference with the means of communication; it includes a positive obligation on the State to make available those means of communication which are particularly important.
From the human rights perspective, the two major areas of internet regulation have been privacy and freedom of expression. The privacy issues at stake so far have been: (1) how to ensure the privacy of personal data, and (2) how to balance the privacy of communication against law enforcement’s need for interception and access to online communications.
The content issues have been: (1) how to control illegal content, and (2) how to control legal but potentially harmful content without unduly infringing on the right to freedom of expression.
Obstacles to use internet by ICT Laws in Bangladesh
In Bangladesh, the laws relating to the operation and blocking of websites/putting restriction on internet access are contained inter alia in the ICT Act 2006.
Section 46 of the Information and Communications Technology Act, 2006 (Act 39 of 2006), purports to grant wide and unfettered powers to the Government to direct any law enforcing agency by issuance of an order with written reasons to restrict imparting of information through any computer resource if in their opinion such prevention is necessary and reasonable on a wide array of grounds, including sovereignty, integrity and security of the State, maintaining friendly relation with other states, public order and security and to prevent incitement of any offence under the Act.
Section 57 of the ICT Act 2006 is framed in vague and uncertain terms and purports to penalise the intentional publication or circulation of any information which is false, obscene or of such nature that in a given context any person reading, hearing or viewing the content may be caused to suffer a moral lapse or become dishonest, or which results in defamation, or causes or is likely to cause deterioration of public order, or hurt the image of the state or any person, or hurt or is likely to hurt religious sentiments, or creates any incitement to violence against any person or association.
Section 46 read with Section 57 of the ICT Act confers upon the Bangladesh Telecommunications Regulatory Commission (BTRC), respondent no 3 a wholly unfettered discretion to restrict and prevent access to websites and to penalise the dissemination or communication of information through websites, based solely on his/her subjective satisfaction, which is arbitrary and capricious, and violative of the fundamental rights guaranteed under Articles 38, 39 and 43 of the Constitution of Bangladesh.
On May 29, 2010, the social networking website Facebook was wholesomely blocked by the Bangladesh Telecommunication Regulatory Commission (BTRC) on the basis that some unethical pictures of Prime Minister of Bangladesh Sheikh Hasina have been uploaded on facebook by someone.
Thereafter, a writ petition (No 4719 of 2010) was filed on June 6, 2010 challenging the ban then imposed on access to the social networking site, and also challenging the constitutionality of Sections 46 and 57 of the ICT Act. As Facebook access was restored at 11pm on the day before the writ was filed, the petitioners did not pursue the issue of the ban in the hearing.
They however continued their challenge to the ICT Act provisions, comparing it to similar, but far less draconian, legislation from other countries. They asked the Court to strike down these provisions as being unconstitutional, focusing on it being a breach of the fundamental right to freedom of expression.
Article 19 of the Constitution guarantees the right to freedom of expression. It clearly provides that while this right may be restricted, any such restriction must be “reasonable,” “prescribed by law” and further have a nexus/connection to specific constitutionally permissible grounds (for example, that it does not amount to defamation or incitement to an offence).
Analysing the challenged sections, the petitioners pointed out that these provisions are vague and uncertain in their terms, and incapable of definition; they provide the government with arbitrary powers as there is no objective standard or guideline to ascertain when these offences have been committed; they are unreasonable and there is no objective basis or guideline for determining when these provisions would apply; the penalties prescribed are disproportionate to the offence; they violate fundamental rights to freedom of expression, freedom of association, the right to be treated in accordance with law, guaranteed under Articles 39, 38 and 31 of the Constitution, and Article 19 of the International Covenant on Civil and Political Rights.
After hearing the petitioners on the July 26, 2010, the Honb’le High Court directed the Ministry of Information Communication Technology among others to show cause as to why Sections 46 and 57 of the ICT Act 2006, allowing for blocking of websites and electronic communications, and providing for prosecution of certain offences, should not be held to be ultra vires (beyond the authority) of the Constitution, and in violation of fundamental rights to freedom of expression and freedom of association.
Moreover, recently the parliament passed the ICT (Amendment) Ordinance-2013 that empowers law enforcing by making the bailable offences to non-bailable, the non-cognisable offences will become cognisable and the highest punishment will go up from 10 years to 14 years imprisonment. As a result, these new amendments will make the law even more draconian and curtail freedom of speech and expression even further.
International standards on content regulation
Any content regulation must not fall below the standards set by international human rights law, and must take into account the special nature of the internet.
While states can legitimately take action to regulate internet content, under international human rights law any limitations on expression must remain within the strict parameters set by Article 19 (3) of the International Covenant on Civil and Political Rights:
[Restrictions on the right to freedom of expression] shall only be such as are provided by law and are necessary:
(a)For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
This means that any restriction must meet a strict three-part test, as recognised by the Human Rights Committee. Any restriction must a) be provided by law; b) be for the purpose of safeguarding one of the legitimate interests listed; and c) be necessary to achieve this goal.
However, any legislation aimed at regulating internet content should furthermore recognise that the internet is not like any other medium. In many cases, it will not be possible to extend general norms to the internet, or to apply the standards that are normally applied to, for example, broadcasting, to internet content. The special nature of the internet will need to be taken into account.
Towards realisation of internet governance in Bangladesh
The internet offers great potential for the exercise of the right to freedom of expression and freedom of information. However, like any tool for expression, it can be used in good and in bad ways. Therefore, attempts to regulate internet content as well as access to the internet have tended to focus on restricting the availability of certain content and, in some cases, restricting access to the internet altogether.
While it is acknowledged that freedom of expression is not an absolute right, it does not mean that the internet should be used by governments as an excuse for curtailing existing liberties.
Bangladesh has no initiative yet to provide policy guidelines for internet governance and monitoring the compliance of internet governance in the country. It is high time for the government to take urgent initiative to work on this. Internet governance requires national guidelines on interoperability issues. However, there is no agency working towards building guidelines for solving interoperability issues.
Although the right to freedom of expression can be restricted, the circumstances under which this may be done have to be narrowly circumscribed. It is necessary that national mechanisms give a clear indication of the extent to which regulation of the internet is compatible with the international legal guarantee of the right to freedom of expression.
