Is there any alternative to the DSA?

Bangladesh's Digital Security Act (DSA) has been widely blamed for its potential to constrain freedom of expression and suppress dissent. UN High Commissioner for Human Rights Volker Türk called for the immediate suspension of the DSA, expressing concerns that this law is being used across Bangladesh to arrest, harass and intimidate journalists and human rights defenders and muzzle critical voices online.

Members of civil society, journalists and legal experts have called for its abolition, arguing that it is incompatible with international human rights standards and undermines democracy.

But is there any alternative to the contentious provisions of the Digital Security Act? This piece aims to seek alternative approaches to the Digital Security Act in Bangladesh.

DSA's contentious provisions

Before discussing the alternatives, it is important to understand the problems with the DSA. The Act has been criticised for its vague and overbroad provisions, which make it possible to criminalise a wide range of speech and online activity.

Some elements of offences are too broad to be defined and are ambiguous by any domestic or international standard. For instance, Section 25 of the DSA criminalises transmitting, publishing, or propagating offensive, false, or threatening data information through digital means intending to annoy, insult, humiliate, or malign a person or affect the person's image or the reputation of the country.

The DSA also contains provisions that violate international human rights standards. For example, Section 43 allows the police to arrest someone without a warrant if they believe that person has committed an offence under DSA. This provision undermines the right to due process. The Act does not contain any provision for a remedy in case someone becomes a victim of unlawful arrest or detention.

There are a few more difficulties with this law, but in this article, we're looking for an answer to whether the application of this law has any alternatives or not.

Given these problems, it is not surprising that many civil society organisations, journalists, and legal experts have called for the repeal of the DSA. They argue that the Act undermines democracy and human rights in Bangladesh.

Repealing the provisions of DSA that are not press friendly would send a clear signal that Bangladesh is committed to protecting freedom of expression and the rule of law. It will also help alleviate the fear and apprehension DSA has caused among journalists and media workers. By providing more straightforward guidelines and protections for freedom of expression, the legal system can ensure that the media can fulfil its essential role in informing the public without fear of reprisal.

However, some argue that repealing the DSA would leave a legal vacuum, as there would be no other law to deal with cybercrimes and prevent malpractice in journalism. This is where amending the Penal Code and strengthening the Press Council come in. 

Amending the Penal Code

One alternative to the DSA is to amend the existing Penal Code to address some of the concerns that were addressed in the DSA. The Penal Code of 1860 covers a wide range of crimes that can take place in society. Some might say, it's an old law; how can it deal with 21st-century offences like cybercrimes and others? 

The answer is an amendment to the Penal Code. The chapters of the Penal Code criminalise offences relating to religion, elections, public servants, offences affecting the human body, offences against property, defamation, and more. Including an additional chapter addressing cybercrimes can address the lack of legislation concerning such offences.

The government can provide clear definitions of crimes and ensure consistency with international human rights standards by amending the Penal Code. One way to achieve this is by including a provision that protects journalists and other media workers from criminal prosecution related to their reporting. Such a provision could define the scope of free expression and safeguard journalists from being unfairly targeted for their reporting.

Amending the Penal Code could also provide more procedural safeguards for those accused of speech-related offences. For example, the government could require that police obtain a warrant before arresting someone for a speech-related offence. This would help to ensure that individuals are not subject to arbitrary detention.

However, certain provisions in the current Penal Code can be utilised to handle false information, defamation, and offences against the state without the need for any amendments.

Operationalising the Press Council Act

The Press Council Act of 1974 presents another option to address the issues related to media regulation without resorting to the DSA. The council established under this law has been granted ample authority to regulate the media.

The Press Council can inquire into any complaints received regarding journalistic ethics, professional misconduct, or a breach of the code of journalistic ethics by a newspaper, news agency, editor or journalist. The Council can warn or censure parties after a hearing and may require newspapers to publish inquiry reports. They cannot act if the matter is in court and their decision is final. All of these provisions are in Section 12 of the Act.

Believe it or not, the Council has been given the power of a civil court, as mentioned in Section 13. The Council can summon the required documents and receive evidence. The Council can issue commissions and inquiries held are considered judicial proceedings. However, the Council cannot  orce the disclosure of news sources.

If the government strengthens the Press Council, it can regulate the media more effectively. This would improve media professionalism and ethics in Bangladesh, leading to a more vibrant and free media environment.

Creating a special law for each crime is not a good idea because it can lead to a complex and confusing legal system. It can also result in inconsistency and arbitrariness in applying the law. Having too many laws can also weaken individual rights and freedoms and place an undue burden on the justice system.

For this reason, amending the Penal Code and strengthening the Press Council are viable alternatives to the Digital Security Act to protect freedom of expression and human rights in Bangladesh.

Saiful Bari is a Legal Researcher.

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect the opinions and views of The Business Standard.