Criminalising online publication

Writing something online — be it Facebook, blog or website — can now become a more serious criminal offence than rioting on the street with a deadly weapon or giving someone death threat!

This is possible due to the Article 57 of the Information and Communication Technology (ICT) Act, 2006 which not only criminalises online writings (though in ever so vague terms), it also proposes exceptionally tougher punishment for even the lowest level of offence.

Ironically, introduction of this draconian law has been made possible in two steps, where the BNP first introduced the vague law criminalising virtually any online expression, and then the AL amended the law to make it worse in every possible way.

Void for vagueness

Legal doctrine requires the law to precisely define the act of offence so that general people may clearly understand what not to do, before committing the offence. For this, Bangladesh Penal Code, while defining the offences, uses explanations and illustrations to further clarify those offences. For instance, let's take a look at article 503 of our Penal Code, which after clearly defining what an act of 'criminal intimidation' means, also adds this—

"Illustration

A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B's house. A is guilty of criminal intimidation."

On the contrary, article 57 of ICT act doesn't really define what type of online writing will be seen as an act of crime, rather leaves dangerous rooms for misinterpretation.

Under this law, it is a crime for any person to "willingly publish or broadcast any material on website or any other electronic form that is false and vulgar, or given the situation upon reading, writing or listening to that material, any person can become derailed or dishonest".

In addition to criminalising the publication of 'false and vulgar' materials, the law also criminalised any online publication that may cause another adult person to "become derailed or dishonest". However, it doesn't say what type of online writings may make someone 'derailed or dishonest'.

Similarly, it criminalises online publication where 'provocation is instigated upon any person or organization', but doesn't really identify what type of writings will be seen as the cause for such provocation.

To protect the citizen from the abuse of such vague laws, there is a legal doctrine called 'void for vagueness' which announces any legal statute as void or unenforceable if it is too vague for the average citizen to understand.

We hope our lawmakers will see this vagueness of article 57 of ICT Act and rule it 'void for vagueness'.

Considering intention

In criminal law, it is standard to consider the intention of the accused, even when the consequence of an act of crime has been occurred. Legal doctrine says — "the act is not culpable unless the mind is guilty".

For instance, to consider a person guilty of harming religious feelings, the court will see — 1) Whether the person has written anything that may harm religious feelings; 2) Whether the person intended to harm someone's religious feelings; and 3) Whether someone's religious feelings has actually been hurt by that writing.

As a general rule, an author is not guilty if s/he did not intend to harm religious feelings.

However, article 57 of ICT Act not only refuses to take intention into account, it doesn't even consider the consequences while accusing someone as guilty. It rules all online publications as act of crime if those "harm or may harm religious feelings".

Punishing disproportionately

To understand how disproportionately this law proposes to punish a person, here are some comparisons—

As per article 148 of Bangladesh Penal Code, if someone is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment for not more than three years, with or without fine.

Compare this with article 57 of ICT Act that says, any online publication that can even 'create the possibility' to worsen the law and order situation, shall be punishable with imprisonment for a minimum term of seven years to a maximum 14 years, with fines up to Tk One crore.

As per article 500 of Bangladesh Penal Code, if someone is guilty of defaming another shall be punished with simple imprisonment for a term not more than two years, with or without fine.

Whereas article 57 of ICT Act says, if any person publishes anything online 'which causes defamation', s/he shall be punished with imprisonment for not less than seven years, with fines.

As per article 506 of Bangladesh Penal Code, whoever commits the offence of criminal intimidation, e.g. threatening to burn someone's house, shall be punished with imprisonment for a term not more than two years, with or without fine.

However, as per article 57 of ICT Act, if any online publication is considered damaging for a person's or state's image, the author shall be punished with imprisonment at least for seven years, plus fines!

Judge, jury and executioner

Offence under this article has also been made 'cognisable'—meaning, the police officer will not need a court's permission to arrest someone for publishing online. It is the police officer who will judge whether an online publication may 'create the possibility to worsen the law' or 'may harm religious feelings' or 'damage a person's or state's image'.

Anyone arrested under this law will have to remain in jail until proven innocent, since the Act has ruled the offence of online writing as non-bailable. It also limits the power of the court to judge someone's minimal offence, since any amount of offence will carry a minimum of seven years of imprisonment and fines up to Tk One crore.

With this power to arrest without warrant and denying bail, a police officer gets the power to act as the judge, jury and executioner. For the general citizen, this will dangerously increase the chances of getting abused.

Already approved and amended through an ordinance, three weeks before a parliament session, this law will however be placed in the 19th session of the 9th parliament.

Fighting cyber crime will most definitely require amendment of laws and training of law enforcing agencies. However, a draconian law will never be able to stop the crime. Rather, it will create a fear among general citizens and undermine the constitutional right to freedom of speech. It may also encourage more people to write anonymously, hiding their identity to avoid legal harassment, and make law enforcing more difficult.

We hope, the parliamentarians, lawmakers, and the government as a whole, will see the ironies of the Act and eliminate article 57 from the ICT Act 2006.

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Syeed Ahamed is the CEO of IID