Monday, 29 May, 2023

Digitalisation, Disinformation, Freedom of Expression and DSA

Dr Farzana Mahmood

Digitalisation, Disinformation, Freedom of Expression and DSA
Dr Farzana Mahmood

Over past few years disinformation tactics played an important role in elections in 17 countries damaging citizens’ ability to choose their leaders based on factual news (Freedom House Report, 2021). In Florida, bloggers fought a bill that could force them to register with the state if they write posts criticizing public officials. Nearly twelve states of the USA have introduced bills that would instruct what students can and cannot be taught about the role of slavery in American history. WikiLeaks publisher Julian Assange has been indicted on 18 charges with a potential of 175 years in prison for publishing Iraq & Afghanistan War Logs, State Department cables, and Guantanamo Bay Detainee Assessment Briefs, which are facts. Mark Zuckerberg exercised the power to remove an elected president from Facebook and Twitter. All these present a grim picture since the accommodation of free speech and transmission of information seem imbalanced globally.

Distortion of history and section 21 of the DSA

In this digital era disinformation can spread so quickly that ethical accommodation and transmission of information has become important than ever. The use of fake news, automated bot accounts, and other manipulation methods gained particular attention in the USA. Spreading disinformation through digital device is a special concern for Bangladesh where nearly 40 percent of the population use internet without sufficient knowledge about cyber safety and legal rights. To ensure safe digital platforms for the citizens the DSA was enacted in 2018, replacing the Information and Communication Technology Act 2006. Section 21 of the DSA states that “If any person, by means of digital medium, makes or instigates to make any propaganda or campaign against the liberation war of Bangladesh, spirit of liberation war, father of the nation, national anthem or national flag, then such act of the person shall be an offence.” The Act does not define the phrase spirit of liberation war.

Preserving the dignity and correct history of our Liberation War is a duty of the State. Since 1975 many conspiracies and attempts have been to distort the history of the Liberation War and to eliminate the contribution of the Father of the Nation Bangabandhu Sheikh Mujibur Rahman from our memory. This called for incorporation of legal provisions to preserve our history. False narratives to further a political goal propagating against the Father of the Nation, damaging facts of our Liberation War and undermining the contribution of the martyrs and Biranganas are not acceptable. These are insult to the injury of the families who have lost their loved ones or sacrificed for our Independence. Allowing distortion of the history of Liberation War would mean undermining the sacrifices of millions of men and women of Bangladesh and encouraging violations of human rights.

In 2002 a French cartoonist was convicted of complicity in condoning terrorism because of a drawing published in a magazine representing the attack on the twin towers of the World Trade Centre, with a caption which parodied the advertising slogan of a famous brand: “We have all dreamt of it... Hamas did it” (cf. “Sony did it”). The Court noted that the cartoonist had expressed his moral support for those whom he presumed to be the perpetrators of the attacks of 11 September 2001, diminishing the dignity of the victims.

Under the European Convention on Human Rights (ECHR) speech promoting the Nazi ideology and denying the Holocaust falls outside the protection of freedom of expression (Article 10). Using imagery which refers to the Holocaust in social campaigns are also not protected under Article 10 of the ECHR. In D.I. v. Germany, the applicant, who was a historian, was fined for having made statements at a public meeting where he had denied the existence of the gas chambers in Auschwitz. The European Commission on Human Rights found that the statements were contrary to the principles of peace and justice expressed in the Preamble to the Convention, and that they advocated racial and religious discrimination. The Commission held that the public interests in the prevention of crime and the requirements of protecting the rights of the Jews outweigh, in a democratic society, the applicant’s freedom to impart publications denying the existence of the gassing of Jews under the Nazi regime. The Commission reached similar conclusions in Honsik v. Austria and Ochensberger v. Austria, where the applicants had also denied the existence of the Holocaust and had incited to racial hatred.

The above observations regarding the dignity of the victims of 9/11 or the Holocaust are equally applicable to preserve the dignity of the victims of our Liberation War, protect history from distortion and to ensure justice. However, the phrase 'liberation spirit' should be defined to clearly under section 21 of the DSA to prevent any risk of abuse of law.

Cyber Terrorism under section 27 of the DSA

Section 27 of the DSA states that if any person intentionally access to any internet network, any protected data-information or computer database which may be used against friendly relations with another foreign country or public order, or may be used for the benefit of any foreign country or any individual or any group, then that person is liable for cyber terrorism. This section does not suggest that just any cyber crime will be cyber terrorism. It specifies a cyber crime intended to destroy public order, friendly relation with other country or benefit foreign country or group or individual shall be cyber terrorism.

The Information Technology Act, 2000 of India also criminalizes such cyber terrorism that can be detrimental to sovereignty and integrity of India, security of the State, India’s friendly relations with foreign States, and public order in the country. International human rights conventions, courts and mechanisms recognize that freedom of expression can be limited by law in certain specific circumstances. For example, the International Covenant on Civil and Political Rights (ICCPR) limits expression to protect national security and public order and the ECHR to protect national security, territorial integrity, public safety, prevention of disorder or crime if necessary in a democratic society.          

Hurting sentiment and section 28 of the DSA

Section 28 of the DSA prohibits broadcasting anything through electronic format or website that can hurt religious sentiment or values.  Sentiment or feeling is an abstract and broad term and henceforth create an environment of uncertainty about what content is permitted and how authorities and civil society can stifle legitimate expressions. Criminalizing speech which may be offensive and insulting to the feeling but not necessarily harmful or inciting can jeopardize freedom of expression.

The issue of hate speech has assumed greater significance in the era of internet, since the accessibility of internet allows hateful speeches to affect a larger audience in a short span of time. Though our existing legal system does not specifically criminalizes expressing any hateful speech or does not mention about hateful speech by implication hateful speech comes under the purview of the constitutional mandates.  In Dewan Abdul Kader vs. Bangladesh, the Court observed that freedom of speech as articulated in Article 39(2) of the Constitution include expression, publication and circulation of anything subject to the reasonable restrictions that may be imposed by law for securing the State, friendly relations with foreign states, public order or incitement to an offence etc. Therefore, by implication Article 39(2) mandates prohibition of hateful speech or any statement which may violate public order, peace, impart disharmony between communities or incite violence. However, specifying hateful speech in the law would halt any misinterpretation and misuse of the relevant provision of DSA.

Stirring up violence and hatred under Section 31 of the DSA

Section 31 of the DSA states that, if any person intentionally publishes anything in digital layout that create enmity, hatred or hostility among different communities or destroys communal harmony or creates disorder or deteriorate the law and order situation then he is committing an offence. Under Article 20.2 of the ICCPR states are required to prohibit by law any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Keeping in mind the societal context Bangladesh has added violence, disorder, communal disharmony and law and order deterioration which do not unnecessarily extend the spirit of Article 20.2 of the ICCPR.

The Hate Crime and Public Order (Scotland) Bill 2021 of Scotland creates criminal offenses for speech and acts intentionally “stirring up hatred” against groups based on among others, religious identity. The Bill states that a person who commits an offence under this section is liable on indictment to imprisonment for a term not exceeding 7 years or a fine or both. Section 153 of the Bangladesh Penal Code, 1860 provides 2 years punishment for intentionally creating hatred between communities but DSA provides 7 years punishment for the same crime through digital layout. The reason could be digital dis-informants intentionally and skillfully construct erroneous stories in a fictional style to allure vast audience through the social media and digital platforms which has horrific impact. Bangladesh has experienced incidents of false propaganda using social media which generated serious communal disharmony, distrust and violence.

Power of the police under section 43 of the DSA

Section 43 of the DSA gives law enforcement agencies the power to arrest anyone, search any premises, and seize any computer network and server, search any person and arrest anyone without a warrant, only on suspicion that a crime has been committed using social media. In UK the Counter-Terrorism and Border Security Act, 2019 gives border agents the power to search electronic devices at border crossings to detect hostile activity that threaten national security, the economic well-being of the country and agents do not need to have a ”reasonable suspicion” to initiate a search. However, unlike the Counter Terrorism Act of UK, the ambit of section 43 of the DSA is not narrow in terms of territory and nature of crime. In the broad spectrum of section 43 chances of misuse of power by the authority is not abnormal, as the incident of Naogaon suggest. Section 43 of the DSA can be amended to specify the crimes or situations when police officers can use such power.

Blocking online content under section 8 of the DSA

Section 8 of the DSA allows Bangladesh Telecommunications and Regulatory Commission to order the removal and blocking of any information or data on the internet if that creates threat to the digital security or solidarity, financial activities, security, defence, religious values or public discipline of the country or incites racial hostility and hatred. The Counter Terrorism Act of UK allows the removal of online material if it “glorifies or praises” terrorism. The UK Government under the Online Safety Bill 2022 can compel platforms to restrict content that is deemed harmful but not necessarily illegal. Network Enforcement Act 2017 of Germany requires large social media platforms to promptly remove illegal content, ranging widely from insult of public office to actual threats of violence. In Philippines a draft bill proposes fines for social media companies that fail to remove false news within a reasonable period and imprisonment for responsible individuals. The Indian Information Technology Act, allows the government to ask Internet Service Providers, telecom service providers, web hosting services, online marketplaces and search engines to remove content that can hamper social order or communal harmony. In India the blocking requests are made after a committee, with representatives from the ministries of IT, home, law and other key agencies, concludes that certain user accounts, or content, need to be removed. To avoid any arbitrary use of power in blocking digital content Bangladesh Government may follow the Indian model and form a committee involving relevant agencies.  

Ensuring national security, public order or eliminating discrimination and hatred by regulating information and freedom of expression in digital globalised communication settings is challenging. Forms of expression which are considered illegal under the ECHR are protected in the US, such as racist or hate speech. Yahoo! France had to comply with French law, which prohibited Nazi memorabilia, while its US head office did not have such an obligation. These examples imply that pursuing common values on human rights and freedom of expression is difficult and complex as national legislations also reflect the context, ethical values and need of the particular society.

Ensuring an authentic, trustworthy, and safe online environment is challenging with nearly 67 million people using internet in Bangladesh. Successfully countering content manipulation, disinformation and restoring trust in social media without undermining freedom of expression requires time, resources and willingness of the government. The appropriate management and supervision over digital space and information can expel communal disinformation, create safe cyber space for women and children and excel freedom of expression. Freedom of expression is an essential component of human rights but digitalization intensifies violations of human rights. Therefore, law and practice of restrictions has to develop accordingly. The DSA has some procedural problems and some implementation issues. Both procedural and implementation problems should to be resolved through negotiations considering the needs of our society.


The writer is a Lawyer and