Recently, the interim government of Bangladesh has convened a roundtable to discuss the future steps regarding controversial the Cyber Security Act (CSA), 2023. There are divergent views, some calling for amendments while others demanding repealing the law entirely. The principal issue is that the Act stifles the constitutional right to freedom of expression. Although repealing CSA or waiving restrictions may lead to increased freedom of expression or reduced censorship, it could also increase cybercrime, risk of public safety, mischief of national security, and potential abuse of rights online.
Freedom of expression is the freedom for us all to express our opinions, and it is the right to speak, to be heard, and to participate in political, artistic, and social life. It includes the ‘right to know’: the right to seek, receive, and share information through the press or media. This freedom allows the citizen to criticise the government. In Bangladesh, Article 39 ensures freedom of thought and conscience, but with some restrictions, including public order, morality, contempt of court, defamation, etc., and the freedom of the press is also guaranteed by this provision. These restrictions are crucial indeed. Even restrictions and limitations on the opportunity of expression can be reasonably restricted under the International Convention on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights. But these restrictions should not be disproportionate. During the fallen regime, dozens were imprisoned for expressing views online as well as offline. The law has scope to abuse even for wrongs civil in nature, e.g., defamation is considered a criminal offence in Bangladesh. But defaming someone is a private wrong; the government should amend this provision so that defamation is considered a tort wrong and the court can only award compensation.
Section 8 of CSA allows the Director General to request BTRC to delete any digital data and restricts online content, which is an ultimatum to digital security. The law does not define the threat to digital security or public values. Nowadays, online content plays a vital role in influencing people; if any offensive or provocative words violate public order, they should be deleted for public safety. On these grounds, CSA gives the government excessive power; as a result, we see internet blackouts, which violate our fundamental rights. As freedom of expression includes the freedom to seek and receive information, the government should not crack down on the internet. Media or press play a vital role all over the world; they need the freedom to criticise without any political influence.
Since these allow government censorship of any content deemed harmful, they must demonstrate that it is reasonable and necessary. According to Santokh Singh v. Delhi Administration, AIR 1973 SC 1091 case, in determining the reasonableness of restriction upon the freedom of expression, a reasonable balance must be struck between the need for the freedom in a democratic system provided for by the constitution and the social interest in the prevention of disorder and anarchy.
Courts around the world have increasingly recognised the necessity of dynamic interpretations of freedom of expression in the digital age. EU guidelines on freedom of expression advocate for the application of all human rights, including the right to freedom of expression, both offline and online. EU aims to promote unhindered, uncensored, and non-discriminatory access to ICTs and online services to all while working against attempts to block or interfere with communication networks. Bangladesh may take into consideration those guidelines. The connotation of freedom of expression is explicitly defined in Article 10 of the European Convention on Human Rights. The second paragraph of Article 10 stipulates when a state can legitimately interfere with the freedom of expression. The European Court of Human Rights has emphasised the balance between protecting freedom of expression and preventing harm, particularly in the context of online hate speech and defamation.
The UN Human Rights Committee has repeatedly highlighted that the relation between the right and the restriction and between the norm and the exception must not be reversed. Any such restrictions must meet the following three parts:
(1) The law must be clear and accessible to everyone (principle of legal certainty, predictability, and transparency).
(2) They must protect the rights or reputations of others, national security, public order, public health, or morals (principle of legitimacy) as per Article 19(3) ICCPR.
(3) They must be proven necessary of restriction, least restrictive, and commensurate with the purported aim (principles of necessity and proportionality).
In Bangladesh, CSA breaks the spirit of these international standards of human rights. The CSA critics argue that the law has overly broad provisions, vague concepts, excessive penalties, and strictly restricts freedom of expression, and it is viewed as draconian law. To align the interpretation of Article 39 with principles of international human rights, cyber tribunals should consider these restrictions. Since there is no alternative to the CSA, it should be amended, keeping in mind the balance between protecting freedom of expression and preventing harm. Compared to the international standard, we have more restrictions on freedom of speech that violate human rights. However, restrictions should be kept because it prevents cybercrime, risk of public safety, mischief of national security, etc. But these restrictions should be proportionate. The EU believes that restrictions on hate speech, defamation laws, or internet restrictions should not be misused to censor criticism and debate concerning public issues. The state must apply the principles of proportionality and reasonableness to ensure that restrictions on freedom of expression are justified and lawful.
About the author
Md. Sakib Sarkar is a third-year law student at Eastern University. His research interests include human rights, constitutional law, tort law, jurisprudence, and Muslim law.