By Anika Mardiah Chowdhury
Artificial Intelligence is a simulation of human intelligence processes by machines or computer systems including the acquisition of information, and critical thinking. Visual perception and others. Bangladesh is embracing Artificial Intelligence for the digitalization of the nation and this digitization process started a decade earlier.
In recent artificial intelligence are transforming the nature of everything affecting human life, the economy, privacy, security, ethics and others. Data is the raw material of artificial intelligence hence to maintain certain issues like ethics, data privacy, and security the authority should construct guidelines and regulations for the usage of this emerging technology. In this paper, the laws of Bangladesh which deal with this data privacy or security, deep fakes, and copyright issues will be discussed.
According to Article 43 of the Constitution of Bangladesh subject to reasonable restrictions for the security of the State, public order, public morality, or public health, every citizen has the right to the privacy of their correspondence and other means of communication. According to Article 33(b) of our Constitution, every person has the right to privacy and if this right is violated anyone can fill a case in High Court Division under Article 102(1).
The fundamental rights of the citizens are ensured under article 27 of the constitution however these fundamental rights under the Constitution are subject to reasonable restrictions imposed by the State under Article 39(2) of the Constitution. As the constitution of Bangladesh gives authority in certain exceptional situations the rights of privacy can be infringement, this exception has been stated in Section 46 of the Technology Act where the Government of Bangladesh has the authority to intercept data under certain conditions in particular to the general rule for maintaining information privacy and secrecy provides that the government may intercept data if it is satisfied that such interception is necessary in the interest of the state’s sovereignty, integrity, or security or friendly relations with foreign states or for the public order, preventing incitement to commit any cognizable offence or investigating any offence. Section 46 of the Technology Act gives the government the authority to intercept any personal monitor or decrypt any information, including personal information, in any computer resource.
Though the government has the authority to check data or security for the public interest or state security any other person or authority has no right like this. Section 7 of the Right to Information Act 2009 states that everybody has the right to protect his data safely and no one will or has the right to publish his data. For further reference mention The Digital Security Act 2018 which was formed to prevent the misuse of personal data.
According to the Digital Security Act, if any data or information published or propagated in digital media regarding any subject under the Director General’s purview threatens data security, the Director General may request that the relevant regulatory authority remove or block the said data or information as appropriate.
Next the Telecommunications Act of 2001 – According to Section 67(b) of this Act no one shall intercept any radio communication or telecommunication, nor shall any intercepted communication be used or divulged, unless the originator of the communication or the person to whom the originator intends to send it has consented to or approved the interception or divulgence. If anyone does so then such an act is punishable by imprisonment for a maximum of three years or a fine.Also, under Section 97 of the following Act, the Government may empower certain authorities to suspend or prohibit the transmission of any data or voice call as well as record or collect user information relating to any subscriber to a telecommunications service, on the grounds of national security and public order.
The 2009 Consumer Rights Protection Act- to some extent this Act impose responsibility to any person or entity in case of handling any personal data or information of the consumers. As under Section 52 of the Consumers’ Rights Protection Act, 2009, anyone who violates any prohibition under any law currently in force by doing any act that is detrimental to the life or security of a service receiver is punishable by imprisonment for a period not exceeding three years and or a fine.
The penal Code – as the provisions of this Act deal with misappropriation of property, theft, and criminal breach of trust any movable property on the other hand personal data misuse can be defined as movable property and thus the provisions of the following Act can be used to effectively prevent data theft.
under Section 55 of the Technology Act any person intentionally or knowingly conceals, destroys, or alters any computer source code used for a computer or computer program, computer system, or computer network when the computer source code is required to be kept or maintained by any law, is regarded as an offence and whoever commits such an offence shall be punished with imprisonment for a term which may extend to three years and/or with a fine which may extend to BDT 1 million. Next section 56 of the following Act if any person damages through illegal access to any such computer or computer network or any other electronic system which does not belong to them or whoever commits hacking offences shall be punishable with imprisonment for a term which may extend to fourteen years to seven years and/or with a fine which may extend to BDT 10 million.
Guidelines on Data Protection
Under the Digital Security Act, the NDSC has been entrusted with the authority to formulate and issue data protection guidance as and when required. Also entrusted with executive matters like blocking content or taking necessary steps to ensure the implementation of the Digital Security Act. However, data protection laws have no provisions or principles regarding transparency, purpose limitation, accuracy, storage limitation, confidentiality, and accountability.
Public sector and Data Protection
According to Digital Security Act, if any person commits or aids and abets in committing an offence under the Official Secrets Act, 1923 through a computer, digital device, computer network, digital network, or through any other digital medium, then they will be punished with a term of imprisonment not exceeding fourteen years or/and with a fine not exceeding BDT 2.5 million.
It is disappointing but true that there has no separate law in this regard however the Government is planning to submit the Data Protection Bill (‘the Bill’) to the National Parliament for enactment and internally circulated a first draft of the Data Protection Act in November 2020 but still the content of the law has not been made publicly available.
Deepfakes and Artificial Intelligence Law in Bangladesh
Deepfakes are like refined media where a person in an existing image or video is replaced with someone else’s likeness. However nowadays this act of faking content is not. Deepfakes has gained widespread attention nowadays for their uses in creating child sexual abuse material, celebrity pornographic video, revenge porn, fake news, hoaxes, bullying, financial fraud and others.
It is a harsh truth that we have no data privacy or any data protection laws in these regards, but there are some existing laws which can deal with this. Usually, deepfake videos are made of pornography or revenge porn, therefore, the Pornography Control Act 2012 has restricted pornography with a massive range of penalties. Section 8 (1) of the following Act states that any act capturing video or still pictures of sexual intercourse or behaviour exposing sexual sensation with or without consent of parties, who are in the sexual interaction, will be punishable with imprisonment maximum of eight years and two lacs taka fine. Section 8(6) of the following Act prescribes making porn videos with minors is a major offence having a penalty of ten years in jail and a five lacs taka fine.
Another sad reality is because of copyright issues deepfake cannot prevent as the victims are not the owners of these videos and photographs therefore under section 72 of the Bangladesh Copyright Act, 2000 these acts that do not violate copyright. Unfortunately, the creator of the deepfake video or images has copyright protection as a result the victim has no legal recourse against the creator of the deepfake video and images. Therefore, it is difficult to take legal action against them hence concrete regulation is required against this deepfake.
Tort Law and Artificial Intelligence Law
Defaming someone or misusing someone’s name, fame, or personality or gaining any advantage with someone’s other identity amounts to a breach of tort law. Though in Bangladesh application of tort law is considerably rare but crimes that happened through deepfake are similar to tort law. Therefore, victims can demand compensation under tort law.
Copyright Infringement and Artificial Intelligence law
The 2000 Copyright Act defines intellectual property rights in literary, dramatic, musical, artistic, and cinematographic works and the term “literary work” includes computer databases. Here database includes protecting the creativity and investment put into the compilation, verification, and presentation of databases not protecting individuals’ informational privacy. As a result, copying a computer database or copying and distributing a database constitutes copyright infringement, for which civil and criminal remedies are available. Also, as an extension of the Berne Convention (1971) under Articles 4 and 5 of the WIPO Copyright Treaty and Articles 10(1) and 10(2) of Trade-Related Aspects of Intellectual Property Rights (TRIPs) states that only computer programs and compilations of data have been protected as copyrightable works and nothing mention about artificial intelligence.
From the WIPO Copyright Treaty and TRIPs agreement, it is clear that there has no definition of artificial intelligence, also The WIPO Worldwide Symposium on Intellectual Property Aspects of Artificial Intelligence was strangely silent on many important issues of artificial intelligence. A careful examination of the symposium paper reveals that it was more focused on defining Artificial Intelligence rather than finding a way to cover this issue under Intellectual Property rights.