ICT Act: Infringement on freedom of expression

Freedom of expression guarantees right of every individual to speak and write openly without any interference from the government. Individuals or groups can keep the public informed, and advocate in favour of alternative ideas, and provide their opinions about what they think is right or wrong. Freedom of expression also secures other fundamentals of democracy, like pluralism and free, fair and transparent elections. Without freedom of expression, political parties also cannot campaign properly, which may lead to unfair election contests. Against this backdrop, in order to ensure democracy for all, freedom of expression is essential. The right to freedom of expression is guaranteed in very similar terms in the Article 19 of the Universal Declaration on Human Rights (UDHR), the UN General Assembly resolution, and the Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR), a formally binding legal treaty ratified by 165 states. It is not disputed that the freedom of expression is a right of greatest importance. At its very first session in 1946, the United Nations General Assembly declared: Freedom of information is a fundamental human right and the touchstone of all the freedoms to which the United Nations is consecrated.
Everyone has the right to freedom of expression. This right may be restricted to protecting a person's reputation. Any restriction on free expression must be prescribed by law. Restricting free expression, including protecting the reputation of others, can only be justified if it can be proven to be necessary in a democratic society.
The question here is: what should be the way of controlling the negative aspects? Can a state frame any arbitrary law which may be a tool of suppressing the voices of opposing views or ideologies, as the case may be? To be more precise, can the state make laws which deny the rights of the citizens in violation of the constitution? The government can adopt the ICT (Information and Communication Technology) Act to protect and control the misuse of information technology. But the Act should be clear and specific, so that it may not affect the right to freedom of expression of the citizens.
The government has recently promulgated an ordinance amending the ICT Act of 2006, which comes as a big threat to the freedom of expression as well as the fundamental rights of the citizens.  It might lead to further arrests and harassment of human rights defenders shrinking further the space for the civil society in the country.
In the original Act, termed by many a repressive law, offences were bailable. Now they have been made non-bailable, meaning the bail is at the judge's discretion. Some crimes were non-cognisable under the previous Act. But the new Act will make those 'cognisable'. That means the police will be able to arrest suspects, without issuing a warrant. They will have to produce the arrested person before the court within 24 hours. Terming the Act a 'black law' for the proposed provision of arrest without warrant, an IT specialist said, any arrest should follow certain procedures. This law offers the scope for political misuse. There is no guarantee that the police will not misuse it. The law is vulnerable to misuse due to empowering the law enforcers to arrest anyone without a warrant. It would not create concern if our law enforcers were professional enough or could work free of political influence. There is no assurance that the law will not be abused. Many fear the law may be used to detain government critics for indefinite periods without bail, giving near-absolute power to the investigating agencies, and leaving regular citizens with little opportunity to seek relief. The Information and Communication Technology (ICT) (Amendment) Act, 2013, might lead to further arrests and harassment of human rights defenders. Given the propensity to infringe upon the people's right to information, there is a considerable possibility that the law may be misused in the name of preventing cyber crimes. It may create confusion, which might cause problems to anyone, any time. It also eases the way of sending one to jail without any sufficient causes.
The Information and Communication Technology (Amendment) Act, 2013, is a threat to freedom of expression. It is contradictory to the Constitution of Bangladesh and the Right to Information Act, as well as a challenge to privacy and human rights.
Freedom of expression is one of the cornerstones of democracy. The media needs to be able to act as a 'watchdog'. Indeed, a healthy government should encourage the media to come up with legitimate criticism. And that will raise the country's reputation. Moreover, open criticism will reduce corruption and mismanagement, which are far more harmful than anything to the economy. All of the world's stronger economies allow open criticism. It is true that cyber crimes are on the rise, and we have to deal with that under a legal framework. We must adopt new laws as needed. But a law must not defeat its purpose. In a sense, the amendment to the ICT Act is more about violating citizens' constitutional right to freedom of speech than protecting their liberty. We don't want oppression in the name of protection.
The writer is an undergraduate student, Department of International Relations, University of Dhaka. [email protected]