The right to enjoy unfettered freedom to act is impossible; nonetheless, most countries of the world have legitimised the free exercise of certain activities within their national laws. Freedom to act and express legitimately on the internet can be considered as internet freedom; this concept has been introduced in the list of human rights at the present time. Freedom of expression and thoughts are cherished as legitimate elements of internet freedom.
The United Nations Human Rights Council (UNHRC) pronounced in its Resolution 20/8 - 'The promotion, protection and enjoyment of human rights on the Internet' - in June 2012 that "the same rights that people have offline must also be protected online, in particular, freedom of expression".
The UN Internet Governance Forum (IGF), in their Charter of Human Rights and Principles for the Internet has described a rights-based internet environment and adopted the rights described in the Universal Declaration of Human Rights of the United Nations as a set of rights encompassing the internet as well.
The declared rights are access to the internet, non-discrimination, liberty and security on the internet, development of thoughts on the internet, freedom of expression and information on the internet, freedom of religion and belief on the internet, freedom of online assembly and association, privacy on the internet, data protection, education, culture and access to knowledge, equal access to electronic services, consumer protection, legal remedy and fair trial.
It is important to note that even while a right is guaranteed, it cannot be absolute and can be limited in certain circumstances to ensure a balance with other important societal interests, such as to protect national security, public order, or the rights and reputations of others. However, any limitations on this right must be necessary, proportionate and prescribed by law and not used as a pretext for suppressing dissent or criticism.
Ensuring freedom of exercise of any right is very delicate. The very definition of 'freedom' denotes this delicacy. The legal definition of freedom is 'the state of being free or liberated'; and the legal definition of free is 'not subject to the constraint or domination of others' [Black's law dictionary 9th edition].
This implies that freedom is a state where the person is not subject to any constraint or domination. On the other hand, a law is defined by the jurists as habitual obedience to a command. These two concepts together imply that freedom is a state where a person enjoys a non-constraint behavioural pattern under the compulsion of habitual obedience to a legitimate command.
Generally, the concept of habitual obedience to legitimate command is attached to the concept of a nation. There must be a legitimate authority that will ensure freedom to exercise certain rights to the rights-holder. In the case of a nation, the government ensures the protection of rights.
When we are talking about internet freedom, the concept of a nation becomes blurred as the internet is a global connectivity and the users of the internet are being connected across the world. This vast cross-border connectivity nature of the internet makes the process of ensuring a user's right to internet freedom more complex.
In the absence of a national 'command', to ensure the enjoyment of freedom in digital space, the interactive digital platform provider, such as a platform of interactive social media, may ensure the balancing mechanism between users' rights to publish their thoughts and information on the internet without feeling constrained, and the need for reasonability in the content and activities on the internet platform.
We can take the example of Facebook, a widely used platform. Facebook has its own set of community standards and it has an inbuilt mechanism that monitors the compatibility of the content published by its users with that set of standards. Users can also report any violation of its community standards.
National laws are also instrumental in ensuring safety in the digital space. In Bangladesh, the Digital Securities Act 2018 has been enacted and remains instrumental in ensuring users' safety in the digital space and in preventing potential cybercrimes. There are other legal instruments like the Information and Communication Technology Act 2006, Bangladesh the Penal Code 1860, The Pornography Control Act 2012, the Right to Information Act 2009, Disclosure of Public Interest Information (Protection) Act 2011, which are also instrumental to prevent, and also to adjudicate crimes described in those laws using digital devices.
The key question is: are the legal and/or regulatory mechanisms embedded in the technology of the platform, individually or combinedly, effective in ensuring the users' rights to free enjoyment of the internet?
The answer is no.
It is a fact that despite these legal and technological mechanisms, there are numerous instances of abuse and infringement of privacy and personal rights in digital space in Bangladesh. Politicians, online small entrepreneurs, celebrities, human rights workers and journalists are often victimised by hate speech in digital spaces.
Blank calls, unknown threats, blackmail and online fraud (though maybe on a small scale) using digital media are very common. Access to the internet, digital literacy and availability of affordable internet are yet to be ensured for a considerable percentage of the population.
Given the above facts and issues, it appears consequential to consider deeper what may constitute internet freedom. Internet freedom is an intertwined concept of different rights and liabilities of the users and internet-based service providers. Different rights impose liabilities on different entities. For example, when I am on a social media platform interacting with another entity, I assert my rights, such as
- to the other end not to be treated offensively;
- to the other end not to expose my personal data to any third party;
- to all, from unauthorised access to my information;
- to the platform not to make my information public without my consent;
- to the platform to know the identity of the other end;
- to the government to express my thoughts and ideas freely;
- to the different entities, right to information as prescribed law;
- to the government, to get legal protection; and,
- to everybody, not to infringe on intellectual property rights.
Furthermore, these rights impose some counter liabilities on me, such as
- not to conceal my identity;
- not to make unauthorised access to any system;
- not to be abusive or offensive;
- not to violate laws; and,
- not to inflict harm on other users.
This complex set of rights and liabilities would likely produce a delicate balance that can be maintained and handled properly if internet users behave in accordance with laws and maintain social and ethical standards. Furthermore, the law ensuring internet freedom needs to address all the rights and liabilities of all parties in clear terms.
In Bangladesh, internet freedom, as mentioned above, is being regulated by the Digital Securities Act 2018. This is a very important legal instrument to regulate digital security and cyber adjudication. However, there are numerous criticisms of this instrument due to its misuse in the exercise of freedom of expression. We need to remember here that law is only an instrument which facilitates the enforcing agencies to adjudicate disputes. Legal instruments do not have their own pace or power to enforce except to the extent they have been exercised by their wielders.
To ensure internet freedom, the law needs to have three very definite characteristics to deal with a cybercrime, i.e., a) a definite description of action and intention of the crimes, i.e., the action and required mental state to commit the illegal act equaling a crime; b) a definite description of rights, and c) a definite description of liabilities. Unfortunately, these three characteristics are absent in the Digital Security Act 2018.
The Digital Security Act 2018 only imposes liability on the users. Furthermore, the crimes described in this instrument seem too vague as to the nature of the mental element of the crime and the very act which has been defined as the crime.
We must consider that legal instruments can only assist in protecting a user from infringement of rights. However, the enjoyment of internet freedom depends on the collective habitual obedience of the users to the internet ethics and informed ethical standards of the digital platform, to which the users will show their obedience.
The above analysis may indicate that while internet freedom is a cherished goal, users must be more informed and conscious of the implications of their behaviour in digital spaces. Furthermore, they need to show higher ethical standards in exercising their rights while using the internet.
The state, on the other hand, must act as the facilitator of this goal by providing suitable legal instruments that ensure the protection of rights and liabilities in the digital space. The state also needs to be instrumental in ensuring justice in the digital space by providing the required laws and fairly enforcing these laws.
Barrister Nazmus Saliheen is an Advocate of the Bangladesh Supreme Court.
Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.