Proposed law threatens to turn Bangladesh into 'surveillance state'

The Bangladesh government is finalising a legislation which, if passed in  parliament, will make the country a “surveillance-based” nation, experts fear.

The Sheikh Hasina-led government has gained notoriety for passing draconian laws to score political points. In power since 2009, the Hasina administration passed the Digital Security Act (DSA) in 2018 and subsequently drew criticism from rights groups for "misusing it" against politicians, journalists and even ordinary citizens, many of whom are still languishing in jails. 

The new draft legislation, titled the “Bangladesh Telecommunication Regulatory Commission Regulation for Digital, Social Media and OTT Platforms”, intends to put social media platforms and tech companies in the dock for the online activity of their users, instead of prosecuting potential offenders. 

Simply put, through this proposed Act, the Bangladesh government wants platforms like Facebook to become its censor as this Act defines what can be published by a Bangladeshi user on Facebook and under what circumstances Facebook should take action to remove a content posted by its user.

For example, the draft legislation would require Facebook to inform all its users in Bangladesh that they should not “display”, “upload”, “publish” or “share” content that “threatens friendly relations with friendly states” or “is insulting to a foreign nation”.

In addition to threatening platforms and companies with the prosecution, the draft regulation empowers the country’s telecom regulator BTRC to direct service providers to remove or block content – and the providers must comply within 72 hours.

Besides, all social media intermediaries will be required to have a resident complaint officer, a compliance officer to ensure due diligence, and an agent to liaison with law enforcement agencies and the BTRC. It means there must be someone here from those social media companies that the government can hold liable or arrest in case of a violation.

Why is the draft Act problematic?

According to a report in The Daily Star, certain sections of the regulation are almost identical to the Digital Security Act and could be used to gag voices of dissent.

If the regulation is adopted, social media “intermediaries” cannot disseminate anything that “is against the Liberation War of Bangladesh, the spirit of the Liberation War, the father of the nation, the national anthem, or the national flag” or “threatens the secrecy of the government.”

Furthermore, they cannot publish any information that “creates unrest or disorder or deteriorates or advances to deteriorate law and order situation”; or “is offensive, false or threatening and insulting or humiliating to a person".

These are identical or strikingly similar to some sections of the Digital Security Act 2018, which have been routinely abused to target journalists and opposition voices.

Journalist and researcher Shaquib Ahmed tells TRT World that with its broad definitions and the government’s plan to adopt a “Code of Ethics”, the proposed regulation will hammer the last nail in the coffin of press freedom in Bangladesh. 

“We will witness the modern-day manifestation of ‘thought-crime’ in the domains of social media, OTT platforms and digital news media,” Ahmed says. 

Any content on the internet that contradicts or even differs with the tenets of the Awami League (AL) government and the party's dominant ideology will be inevitably removed by intermediaries like Facebook or  Twitter fearing penalties, he adds. 

“The excessively broad and outrageously vague definition of what’s ‘insulting’, ‘harmful’ and ‘offensive’ for the AL government will compel intermediaries to block and remove any content that they may deem risky to their business. In that way, there will be unreasonable restrictions on content creators resulting in over-censorship,” Ahmed says. 

The BTRC draft Act, meanwhile, makes it mandatory for intermediaries such as WhatsApp, Telegram, Signal etc., to enable traceability and identification of the first originator of any information. It means these companies, whose very existence is premised upon the assurance of privacy, would be required to break end-to-end encryption.

Anti-graft watchdog Transparency International Bangladesh (TIB), in a recent press conference, termed this draft Act “anti-constitutional” and said Bangladesh would become a “surveillance-based nation” if it is passed.

TIB director Sheikh Muhammad Manjur-E-Alam said that the title of the draft regulations suggested that it would regulate social media, OTT and digital media platforms, while it seems to be “more focused on controlling content”.

“Other than controlling terrorism and child abuse, establishing any sort of control over the content is a contravention of international standards,” Alam said.

Not learning from others 

South Asia analyst Adam Pitman said the BTRC draft rules are very similar to India’s IT Rules, 2021. “That law has been an unmitigated disaster. The Indian media were among the first to sound the alarm over Bangladesh’s draft rules because they know how wrong it can go for a country,” he says.

“And whatever you want to say about Modi’s India, you really have to wonder whether they would have gone through with it – if they’d known the legal, and reputational, problems it would cause. Does Dhaka really want to deal with those kinds of crises? I doubt it,” Pitman adds.

Pitman points  out that Shyam Sunder Sikder, the chairman of BTRC responsible for the draft rules, recently told Dhaka Tribune newspaper that regulators took ideas from India, as well as Thailand and Sri Lanka. 

“He said Bangladesh was working more collaboratively with the social media companies than other countries. But a more indigenous approach may have been more prudent,” Pitman says. 

“Bangladeshis have, for example, developed innovative models to manage rumours, misinformation, and hate speech in the Rohingya refugee communities around Cox’s Bazar. These professionals work across local organisations to track, mitigate, and resolve information that can cause harm – this made a big difference during Covid lockdowns and other periods when tensions ran high,” he says. 

Pitman adds that Bangladeshi policy-makers have enjoyed a great deal of success when they worked collaboratively with NGOs, and other expert bodies, like think tanks. “One would only hope that some of the DSA fallout might encourage the government to take another look at the Draft rules with an open mind and a more diverse group of stakeholders,” he adds. 

Bangladesh’s Telecom Minister Mostafa Jabbar, however, defended the need for such legislation.  

“We don’t live in a jungle. We live in a civilised society and civilised society needs a law to govern its citizens,” he told TRT World.

Jabbar criticised platforms like Facebook for their inability to come up with immediate measures to identify content spreading hate speech and disinformation in Bangladesh. “We have seen how misinformation and hate speech fuelled communal violence in places like Nasirnagar and Ramu. We can’t let that happen again.”

The Minister also said that they had prepared the legislation for the OTT platforms as the High Court gave them a directive in January this year to prepare a guideline for collecting revenue from the OTT platforms. “We are just abiding by the High Court rules.”