Bangladesh has spent years trying to find the perfect name for a law governing what people say on the internet.
It has had the Information and Communication Technology Act, the Digital Security Act, the Cyber Security Act, the Cyber Protection Ordinance and now the Cyber Protection Act. The names keep improving. The appetite for policing speech appears harder to reform.
The latest proposed amendments are presented as an answer to genuine problems of cybercrime, online harassment, sexual abuse, deepfakes, bullying and misinformation. Yet the draft reaches much further.
It would criminalize loosely defined humiliation and defamation, introduce an offense involving “unverified” information, broaden the government’s power to remove online material, and potentially allow some speech offenses to be dealt with by mobile courts.
The result looks like a generously equipped toolkit for anybody in authority who finds the internet insufficiently “respectful.”
Section 25 of the draft amendment provides the clearest example. The existing provision is principally concerned with serious online harms such as sexual harassment, blackmail, revenge pornography, sextortion and child sexual abuse material.
The proposed amendment adds defamation, humiliation and bullying. The maximum punishment would rise from two years and 10 lakh taka (about $8,200) to five years and 20 lakh taka ($16,200).
The difficulty is that politics is an industry built partly on humiliation. Opposition politicians attempt to humiliate governments. Cartoonists humiliate politicians. Columnists, protesters, satirists and angry citizens regularly do the same. Calling a minister incompetent is not generally intended to enhance his social standing.
The draft’s language extends beyond false factual allegations to words, publications, conduct and even gestures capable of diminishing somebody’s dignity, honor, reputation or social standing. That is a remarkably elastic basis for attaching criminal liability.
It becomes stranger still when the person criticized is a woman. Under the proposed Section 25(3), an offense under Section 25(1) against a woman or a person under 18 can bring up to ten years in prison or a 40 lakh taka ($32,800) fine.
Because defamation is being placed inside Section 25(1), the aggravated penalty is not confined to sexual exploitation or abuse. According to the text analyzed by Daily Waadaa, equivalent defamatory speech directed at a female politician could therefore potentially carry a greater maximum punishment than when directed at a male politician.
Protecting women from online sexual abuse is an obvious public interest. Creating a gender-dependent tariff for political defamation is something else.
The draft is similarly adventurous about who can be defamed. Its definition of a “person” encompasses institutions, companies, partnerships, firms and other legal entities. A furious Facebook review of a hospital or bank could therefore acquire consequences rather grander than an argument in the comments section.
When a meme becomes a crime
Then comes the meme. Section 25 covers graphics and AI-created or edited material without, according to the published analysis of the draft, an explicit exemption for parody, satire or cartoons. Section 27 compounds the risk by making assistance in an offense punishable as the underlying offense.
Because publication and dissemination are covered, liability may not necessarily stop with whoever created the offending material. Sharing it can matter too. Bangladesh may therefore be approaching the point at which forwarding a joke about a politician requires more legal consideration than writing one.
For journalists, however, the more alarming proposal is the new Section 26A.
It would criminalize publishing or disseminating “rumor” and false information online. The proposed definition encompasses unsupported or unverified information capable of causing confusion, fear, excitement or social instability. The maximum punishment identified in the draft analysis is ten years’ imprisonment or a 40 lakh taka fine (around $32,800).
The word “unverified” is doing extraordinary work here. Journalism frequently concerns information that has not been officially verified. Indeed, that is often why journalism is necessary.
Imagine that several sources at a hospital tell a reporter that demonstrators have been shot dead. The authorities deny it. The reporter publishes. Six hours later, the deaths are confirmed.
The story was true. At the crucial moment, however, it was unverified. It was also obviously capable of causing fear or “excitement.” The prudent response for an editor under such a law is obvious…wait.
Wait for the police. Wait for the ministry. Wait for somebody carrying an official stamp to confirm what your reporters already know. By the time everybody is comfortable, the story may also be politically useless.
That is the elegance of the chilling effect. The state need not imprison every reporter. It need only make reporters sufficiently interested in not being imprisoned.
Citizen journalists, protesters and activists would have even fewer protections. They document events precisely when information is confused, rapidly developing and unverified. A smartphone video uploaded during a clash may be valuable because it appears immediately, not after a committee has authenticated it on Tuesday.
The draft’s Section 8 supplies the other half of the mechanism. Law-enforcement bodies, the Information and Broadcasting Ministry, and other government-authorized agencies or forces could seek to block or remove material considered defamatory to a person or institution, or “disrespectful to the state”.
The draft analysis does not define the latter phrase. It is difficult to imagine a phrase less suited to a democracy.
States do not have feelings. Ministries cannot be offended. Police headquarters does not need protection from sarcasm. A citizen’s right to describe the state as incompetent, corrupt, ridiculous or worse is not an unfortunate side effect of democracy. It is part of the arrangement.
Censor first, justify later
More troublingly, the executive can act before judicial approval. Under the proposed procedure, content may be removed or blocked first, with tribunal approval obtained within three days.
The draft does contain a useful transparency provision requiring information about blocked material to be published. But disclosure after censorship is not the same thing as judicial scrutiny before it.
On the internet, three days can be an eternity. Remove footage of police violence for three days and the protest may be over. Suppress an allegation concerning an election for three days and the ballots may already have been counted. Restoring speech after the moment in which it mattered is rather like returning yesterday’s newspaper and insisting nothing was lost.
The enforcement provisions add to the concern. The draft expands who can qualify as an aggrieved party to include people with a “legitimate interest”, while Section 25 would become cognizable, exposing defendants to arrest without a warrant for a provision that would now include defamation. It would also allow certain offenses to be brought within the Mobile Court Act.
Bangladesh knows where expansive cyber legislation can lead. The Digital Security Act became notorious for cases against journalists, activists and government critics. The present draft is already being compared with that era: Daily Waadaa reported that the amendments would restore restrictions associated with the DSA, while rights groups have called the proposals more regressive than that law and demanded their withdrawal.
Perhaps the most revealing feature is the proposed hierarchy of punishments. According to the draft analysis, incitement to religious or ethnic violence carries a maximum two-year sentence. Disseminating information caught by Section 26A can bring ten.
Five times the potential prison term for a “rumor” as for inciting communal violence is not merely a drafting curiosity. It tells citizens what the law regards as especially dangerous.
Bangladesh unquestionably needs laws against hacking, cyber fraud, sexual exploitation, threats and malicious digital manipulation. Deepfakes and organized disinformation present real problems. But a cyber law should distinguish abuse from criticism, deliberate fabrication from reporting in progress and criminal conduct from ridicule.
This draft repeatedly blurs those lines. It confuses false information with information not yet verified, defamation with humiliation, creation with dissemination, harassment with insult and criticism of government with disrespect for the state. Then it places imprisonment, warrantless arrest, administrative blocking and potentially mobile courts behind those ambiguities.
The danger, then, is not merely that people will be prosecuted. It is that many more will decide not to speak.
A reporter will hold the scoop. An editor will remove the sentence. A cartoonist will soften the drawing. An activist will hesitate before uploading the video. A Facebook user will look at the meme, laugh — and decide that ten years is a rather steep price for pressing “share.”
Bangladesh’s cyber laws have acquired another new name. What they still need is a genuinely new instinct: the ability of the state to encounter speech it dislikes and let it be.
Faisal Mahmud is a Dhaka-based journalist.
