Offences under Digital Security Act, 2018
The provisions of the Digital Security Act were passed by the parliament in September. The most controversial Act came into effect in October 2018. Though the Act opposed was by many members of media and human rights organizations but yet it came into effect.
In chapter I of the Digital Security Act, 2018 states the definitions and the territorial applications of it. For example, “illegal access” is defined as to access into any computer or digital device or digital network or digital information system, without permission of the concerned person or authority or in violation of the conditions of such permission or by means of such access, to make interruption in exchanging any data-information of such information system or to suspend or prevent or stop the process of exchanging data-information or others.“Digital security” means the security of any digital device or digital system. Here “Tribunal” means the Cyber Tribunal constituted under section 68 of the Information and Communication Technology Act, 2006.
In chapter II of the following Act establishment of Agency, Office, and others in order to fulfill the purpose of the Act also provide an appointment of them. Chapter III discusses the preventive measures. Where if any data information related to any matter under the jurisdiction of the Director General published or propagated in digital media which creates a threat to digital security. Then the Director General may request the Bangladesh Telecommunications and Regulatory Commission to BTRC, to remove or as the case may be, block the said data-information. If BTRC is requested, they shall instantly remove or as the case may be block the data-information. Also, for carrying out the purposes of this Act, there shall be a National Computer Emergency Response Team under the Agency for discharging duties. There shall be also a quick forensic lab to discharge function. Chapter IV states the establishment of the Digital Security Council and Chapter V discusses the Critical Information Infrastructure.
Chapter VI deals with the offenses and punishments. Where section 17 states that if any person, intentionally or knowingly access illegally any critical information infrastructure or causes or tries to cause harm or damage to it or makes or tries to make it inactive, then such act of the person shall be an offense. The punishment of such would be imprisonment for a term not exceeding seven years or/with a fine not exceeding Taka twenty-five lac. If anyone commits the offense of destroying or damages information then he shall be punished with imprisonment for a term not exceeding fourteen years or/with a fine not exceeding Taka one crore. If any person commits the offenses mentioned above, repeatedly or continuously then he shall be punished with imprisonment for life or/with a fine not exceeding Taka five crore.
Section 18 of the following Act, states that if any person makes or abets to make illegal access to any computer, computer system, or computer network then he shall be liable for imprisonment six months to three years and/or fine two lac to ten lac Taka. On the other hand, section 19 states that collection of any data, data storage, information, or any extract of it from any computer is an offense. If any person intentionally inserts or tries to insert any virus or malware or harmful software into any computer or computer system or computer network; or willingly causes or tries to cause harm to data or data-storage of any computer or any others then that will be considered as an offense. Any person who commits an offense as such will be liable for a term not exceeding seven years or/with fine not exceeding Taka ten lac. If such person commits offense second time or repeatedly, he shall be punished with imprisonment for a term not exceeding ten years or/with fine not exceeding Taka twenty-five lac Taka.
Section 21 states that, if any person by means of the digital medium makes or instigates to make any propaganda or campaign against the liberation war of Bangladesh, the spirit of the liberation war, father of the nation, the national anthem, or national flag, then such act of the person shall be an offense. Such person shall be punished with imprisonment for a term not exceeding ten years or/with a fine not exceeding Taka one crore or/with both. If any person commits the same offense for the second time or repeatedly, he shall be punished with imprisonment for life or/with a fine of Taka three crore.
Section 25 states that if any person through any website or any other digital medium intentionally or knowingly transmits, publishes, or propagates any data-information which he knows to be offensive, false, or threatening in order to annoy, insult, humiliate or malign a person or publishes or propagates or abets to publish or propagate any information, as a whole or partly, which he knows to be propaganda or false, with an intention to affect the image or reputation of the country or to spread confusion. Such person shall be punished with imprisonment for a term not exceeding three years or/with fine not exceeding Taka three lac or/with both. If any person commits the offense a second time or repeatedly, he shall be punished with imprisonment for a term not exceeding five years or/with fine not exceeding Taka ten lac or/with both. An example under this section can be seen from a recent incident where Rights Organization data showed that sixty cases were lodged under this where over 100 people were sued for expressing their opinions on Facebook and other social media last year. Also, the data showed that the highest 18 cases were filed in April during the COVID-19 crisis and 13 cases were filed in the first six days of May.
Under section 28 of the following Act, if any person or group made publication, broadcast, etc. of information on the website or in any electronic format that hurts the religious values or sentiment, with an intention to hurt or provoke the religious values or sentiments, then such act of the person shall be an offense. Such person shall be punished with imprisonment for a term not exceeding five years or/with fine not exceeding Taka ten lac or/with both. On the other hand, section 29 states if any Publication, transmission, etc. of defamatory information made or any person publishes or transmits any defamatory information as described in section 499 of the Penal Code, 1860 on the website or in any other electronic format. Such person shall be punished with imprisonment for a term not exceeding three years or/with fine not exceeding Taka five lac or/with both. If any person commits the offense for the second time or repeatedly, he shall be punished with imprisonment for a term not exceeding five years or/with fine not exceeding Taka ten lac or/with both. Under this, in last year about 11 people including two journalists, one cartoonist, and one writer were sued by the government of Bangladesh by Assistant Director. Also, the Sub-inspector of Rupganj police station in Narayanganj District filed a case against a person for sharing a picture mocking a Member of Parliament.
In chapter VI further mentions other offenses related to digital security like publication, transmission, etc. of defamatory information and offense and punishment for deteriorating law and order, etc. also offense and punishment for breaching the secrecy of the Government, Abetment of committing an offense and punishment. Section 36 discuss an offense under this Act is committed by a company every owner, chief executive, director, manager, secretary, partner, or any other officer or employee or representative of the company who has direct involvement with the offense shall be deemed to have committed the offense unless he proves that the offense was committed without his knowledge or he exercised all due diligence to prevent the offense. If the company is a legal entity it may be accused or convicted separately in addition to accusing or convicting the persons mentioned above only a fine may be imposed upon the company under the concerned provision.
Chapter VII discusses the procedure of investigation. As per section 39, the police officer may hold an investigation hereinafter the Investigation Officer. Under section 40 the time limit for investigation is 60 days but the time may extend it fails to investigate in the specified time. The investigation under this chapter may search, seizure and arrest with a warrant or even without a warrant if he thinks or has reasons to believe that an offense under this Act has been or is being committed, or is likely to be committed in any place, or any evidence is likely to be lost, destroyed, deleted or altered or made unavailable in any way. Such investigation is under a duty to keep the secrecy of the information obtained in course of the investigation as under section 47.
The offenses committed under this Act shall be tried by the Tribunal only. Under section 50 the Code of Criminal Procedure shall be applicable to the investigation, trial, appeal, and all incidental matters related to any offense under this Act. Here the Tribunal shall be deemed to be a Court of Session and have all powers of a Court of Session while trying any offense under this Act or any other offense derived from it. Under section 52 the judge of the Tribunal shall dispose of a case under this Act within one hundred and eighty working days from the date on which the charge is framed if he fails within the specified time then the time may extend. A trial was made under this Act where a journalist Kajol was given seven years in imprisonment and about thirty-one other cases are pending.
Chapter IX states that the Evidence Act, 1872, or any other law of any forensic evidence obtained or collected under this Act shall be admissible as evidence in the trial.
Though this Act came into force about two years ago 1,000 cases were filed under this Act according to Bangladeshi human rights monitor Odhikar.