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Analysis of Digital Security Bill, Bangladesh, May 2018 Bangladesh Analysis of the Draft Digital Security Bill May 2018 Centre for Law and Democracy [email protected] +1 902 431-3688 www.law-democracy.org Table of Contents Table of Contents........................................................................................................................................ ii Annotated List of Key References ......................................................................................................... iii Executive Summary ....................................................................................................................................v Introduction ................................................................................................................................................ 1 History of Similar Legislation in Bangladesh ..................................................................................... 1 Legitimate and Unnecessary Regulatory Needs ................................................................................ 2 Scope and Precision ................................................................................................................................... 5 Offences – Content Related ...................................................................................................................... 7 Offences – Other........................................................................................................................................ 14 Institutional Structures and Independence ...................................................................................... 21 Other Issues ............................................................................................................................................... 22 ii Annotated List of Key References Council of Europe: Declaration on freedom of communication on the Internet The Council of Europe is the key body within the wider European region (i.e. not just the European Union but all of Europe, comprising 47 States) that, among other things, is responsible for promoting human rights. It has a large and complicated system for doing this, of which the European Court of Human Rights (see below) is a key component. Another is the Declarations adopted by the Committee of Ministers, which is comprised of Ministers for Foreign Affairs of member States. Declarations are not binding but are seen as authoritative statements of the standards that flow from binding obligations. European Court of Human Rights The European Court of Human Rights was created by the European Convention on Human Rights (adopted 4 November 1950, in force 3 September 1953). It has the power to make binding legal decisions regarding whether States Parties have respected their Convention obligations, including where cases are brought by private individuals (or companies). States are legally obliged to respect its decisions and it has various ways of enforcing compliance. General Comment No. 34 The UN Human Rights Committee (see below) adopts general comments from time-to-time highlighting its jurisprudence in a specific area in one easily accessible and comprehensive document. General Comment No. 34, adopted in 2011, is its most recent general comment on freedom of expression. International Covenant on Civil and Political Rights (ICCPR) The ICCPR1 is a treaty promulgated by the United Nations General Assembly which is formally legally binding on the 170 States (as of April 2018) that have ratified it (this includes Bangladesh, which ratified the treaty on 6 September 2000). It is the key international human rights treaty setting out civil and political rights. Special International Mandates on Freedom of Expression: Joint Declarations Globally, there are four special international mandates on freedom of expression, namely the United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information. Each year, they adopt a Joint Declaration on a freedom of expression issue. While not formally binding, these provide authoritative evidence of the scope and meaning of international guarantees of freedom of expression. 1 UN General Assembly Resolution 2200A(XXI), adopted 16 December 1966, in force 23 March 1976. iii UN Human Rights Committee The UN Human Rights Committee is the official body which is responsible for overseeing compliance with the ICCPR. When States ratify the ICCPR, they accept this oversight power of the Committee. A key part of this is that they are obliged to submit a report to the Committee every five years on what they have done to implement the treaty and the Committee then adopts its own views on their performance, which are in turn made public. States which have ratified the (first) Optional Protocol to the ICCPR, which does not include Bangladesh, also accept the jurisdiction of the Committee to hear individual complaints about their failure to respect the provisions of the ICCPR.2 2 More information about the Committee is available at: http://www.ohchr.org/EN/HRBodies/CCPR/Pages/CCPRIndex.aspx. iv Executive Summary Earlier this year, the government of Bangladesh approved a Digital Security Bill, 2017 (Bill), which has now been sent to parliament for its review and consideration. The current government, led by the Bangladesh Awami League, has placed considerable emphasis on the role of digital technologies to deliver Vision 2021, the party’s political manifesto that, among other things, promises to eradicate poverty in Bangladesh by 2021, 50 years after attaining independence. However, it has at the same time been supporting legislation that seeks to undue limit freedom to use digital communications technologies. Amendments in 2013 to section 57 of the Information & Communication Technology Act, 2006 significantly exacerbated the problems with this provision, leading to a rash of prosecutions under it. However, the current Bill contains far more and far more problematical provisions which introduce unduly limiting restrictions on digital content, create a number of vastly overbroad other criminal offences relating to digital technologies and give government controlled bodies extensive power over digital communications. The Bill in its current form would have a significant negative impact on journalists and the media, as well as other citizens. This Analysis assesses the Bill against international human rights standards, in particular relating to freedom of expression, finding that it fails to respect those standards in a number of key respects. International standards dictate, among other things, that content restrictions and other criminal measures should not be vague, overbroad or unnecessary, that parallel regimes for online activities are warranted only where the activity is either completely or substantially different online, that penalties should not be greater simply because an activity is carried out online, and that regulatory systems should be protected against political interference. The Bill fails in important ways to respect all of these standards. An initial problem is that the Bill employs extremely broad definitions for key terms, including the very central notion of “digital security”, which covers all types of security and not just external threats to security, and then grants regulators very broad powers in relation to digital security. Other notions which are defined too broadly include “unlawful access”, which covers not only unlawful access but also any access, even if lawful, that prevents a system from sending information, which happens every time someone shuts down a computer. Similarly, “malware” is defined as any programme that changes the tasks performed by a computer, whether or not this is done with intent to harm the computer, which would, as a result, include a user tweaking his or her own settings. Although we presume that these are mistakes, and that individuals will not be charged for shutting down their own computers, the fact that the Bill allows for this means that it could easily be abused. Another serious problem with the Bill is that, instead of setting out clearly the functions and powers of the bodies it creates, and the procedures for applying the powers it grants, much of this is left to be determined by rules, which will be adopted later by the responsible minister. This includes the “[p]ower, duty and activities” of the Digital Security Agency, the key implementing body for the Bill, which are almost entirely left to be determined by the rules. This not only fails to give citizens appropriate notice of what these powers will be, but it also grants enormous v discretion to the minister to determine how very intrusive powers over online communications will work. It is also inconsistent with established practice in Bangladesh, as well as other democracies, whereby the powers of regulatory bodies are set out in the primary legislation. The above problem is seriously exacerbated by the fact that the Agency, and its oversight body, the National Digital Security Council, are controlled by government instead of being independent, as international law requires regulatory bodies which have powers in the area of freedom of expression to be. The Bill fails to indicate who will sit
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