In Bangladesh, if you "intentionally or knowingly" transmit, publish or propagate any data-information which are "offensive, false or threatening in order to annoy, insult, humiliate or malign a person," you may end up in jail for three years and pay Taka 3 lakh in fine.
That is what Section of Digital Security Act (DSA) 2018 says.
But what exactly is 'offensive'?
The dictionary defines it as "causing someone to feel resentful, upset, or annoyed." By definition, therefore, just about anyone can decide what they find offensive. In a nation of 160 million, there are more than 160 million ways you can offend someone.
Once you go further with the 2018 law, you will read in section 43 that if any police officer has "reasons to believe" that an offence under this Act has been or is being committed, he can "enter and search the place". If he is obstructed, he is entitled to take "necessary measures" in accordance with the Code of Criminal Procedure; he can arrest any person present in the place if the person is "suspected" to have committed or be committing an offence under this Act.
Since 2018, consequently, more than 200 cases have been filed against approximately 500 persons; more than 200 people have been arrested, according to Front Line Defenders. But Amnesty International says, in this period, more than 1,000 cases have been filed under this Act.
More interesting, according to Front Line Defenders, a majority of these cases have been opened in 2020. According to this human right organisation, "just one month into the lockdown, over twenty journalists were jailed under the DSA, many for social media posts criticising the government's response to the pandemic."
And here we come to the story of Mushtaq Ahmed.
He was arrested on May 6 last year for his social media comments allegedly criticising the government's handling of the coronavirus pandemic, Al Jazeera reports. He was denied bail for six times. Mushtaq Ahmed died in prison – his aged parents lost their only son, his widow shattered to the core, and losing everything she weeps "I could not ask for his forgiveness."
What is wrong with DSA 2018?
At the outset of the government gazette, you will read that it is an act "to make provisions for ensuring digital security and identification, prevention, suppression and trial of offences committed through digital device and for matters ancillary thereto."
"The DSA 2018 has two aspects. We did not have a law regarding the crimes happen in the cyberspace. So we needed a law," says supreme court advocate Shahdeen Malik.
"But the other aspect of the law, by and large the crime of 'undermining the image/status', for example section 25, ceased to exist a hundred year ago from criminal law. When something is treated in criminal law which actually cannot be treated like so, the only objective of such a law is to prevent criticism and hence, obstructing the freedom of expression," said Shahdeen Malik.
"Criminal law is only applicable where the damages can be measured, such as robbery, theft, grabbing properties, physical assault and murder etc. But where you cannot measure the damages, it cannot be a criminal case.
"The other aspect, as I said, deals with cyberspace crimes are alright, and can be further improved. But only solution to the current crisis now is to abolish the (controversial) sections," Malik added.
The death resulted from the DSA charges, however, did not just come out of blue. Protests rocked Dhaka streets, the journalists demanded reforms of the controversial sections of the law from the beginning.
But "the authorities did not take into consideration the concerns and reservations about the Digital Security Act that were expressed by journalists at the time of introducing the law. Despite the government's commitment to continue the consultation, and amend the law, none of those concerns have been addressed to date," Saad Hammadi, South Asia Campaigner of Amnesty International, told The Business Standard.
A precarious state of journalism and freedom of expression
If you are active on social media, you must have noticed people commenting how frustrated they are with our journalism. Many believe newspapers in Bangladesh have turned into paper tigers.
When we have so many newspapers, electric media, thousands of journalists, why these allegations that journalism is failing in Bangladesh? When people are constantly talking on social media, why is that freedom of expression is said to be in a precarious state?
"Freedom of expression is not measured by the number of print, online and electronic media that a country has, which is often an argument that governments try to provide in their defence. The arrest of hundreds of people on criminal charges for online dissent and the recent death in prison of a writer, solely for exercising his right to freedom of expression, reflect the worst form of repression that the Digital Security Act can bring on a person," Amnesty's Saad Hammadi says.
According to Article 19, a British human rights organisation, among 198 DSA cases filed in 2020 that accused 457 people, 75 are journalists. Around 41 cases have been filed against these journalists and 32 of them have been arrested.
Here comes the idea of self-censorship – a phrase buzzing around the Bangladeshi news spectrum, frequently.
"As long as this law exists, freedom of expression will remain limited. A limited freedom of expression also limits the scope of criticism. The journalists are now thinking many times over before publishing an investigating report. This has now become a country of limited journalism," said Shahdeen Malik.
"I wish we didn't have to see the day when a writer would die languishing in prison for exercising his right to freedom of expression. Bangladesh's government must immediately repeal the DSA unless it can amend the law in compliance with its international commitments to promote and protect free speech," Saad Hammadi concludes.