Introduction

The concern has been increasing regarding the frequent use of section 57 of the Information
and Communication Technology Act, 2006 (the ICT Act). Recently published news in nearly
all newspapers and TV channels, broadcast talk-shows in reputed electronic medias and
statements quoted from various intellectuals, human-rights activists, columnists, policy-makers
have revealed a bitter truth that there exists an apparent controversy or conflict between the
Government and the stakeholders of the State from different levels. It is alleged from civil
society, particularly from the persons concerned with writing in newspapers and social media,
that section 57 is facing a serious abuse by the government in order to restrict the ‘freedom of
expression’ and ‘freedom of press’ in a capricious manner. Therefore, they suggest that the
section be repealed or ,at least, be amended in a way that will ensure consistency with those
freedoms. However, the Government defends the allegation stating that ‘the provisions of the
section shall not, in any way, be exercised or used for apprehending any person unreasonably.”
This writing is an observation endeavoring to find out the contents of the ‘freedom of
expression’ and to examine the alleged abuse or scope of abuse in a rational way.

Right to Thought, Freedom of Expression & Right to Privacy

Freedom of thought is the precursor and progenitor of and thus is closely linked to other
liberties, including freedom of religion, freedom of speech, and freedom of expression. World
and nearly all democratic constitutions protect these freedoms. Freedom of thought is the
matrix, the indispensable condition, of nearly every other form of freedom. With rare
aberrations a pervasive recognition of this truth can be traced in our history, political and legal.

Recognition of ‘Right to Thought’ and ‘Freedom of Expression’

The United Nations’ Human Rights Committee states that this, distinguishes the freedom of
thought, conscience, religion or belief from the freedom to manifest religion or belief. It does
not permit any limitations whatsoever on the freedom of thought and conscience or on the
freedom to have or adopt a religion or belief of one’s choice.
Government is very much positive towards the people demand and considering the issue
seriously. Law Minister Anisul Huq said - the section 57 of the Information and
Communication Technology Act is a hurdle to the freedom of expression.The government will

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formulate a new law – Digital Security Act – in which the confusion and ambiguity of Section
57 will be removed, he said. The draft of the Digital Security Act is now under vetting, the law
minister said. “The government will ensure freedom of expression.”

Recognition of Right to Privacy in International Instruments

The right to privacy is our right to keep a domain around us, which includes all those things
that are part of us, such as our body, home, property, thoughts, feelings, secrets and identity.
The right to privacy gives us the ability to choose which parts in this domain can be accessed
by others, and to control the extent, manner and timing of the use of those parts we choose to
disclose. The right to privacy is a human right and element of various legal traditions which
may restrain both government and private party action that threatens the privacy of individuals
and this right is recognized more than 150 national constitutions. Privacy rights are
inherently intertwined with information technology. Privacy uses the theory of natural rights
and generally responds to new information and communication technologies. Right to privacy
is explicitly stated in the Universal Declaration of Human Rights that, “No one shall be
subjected to arbitrary interference with his privacy, family, home or correspondence, or to
attacks upon his honor and reputation. Everyone has the right to the protection of the law
against such interference or attacks.”
Right to Thought and Freedom of Expression in Bangladesh
In the context of Bangladesh, the idea, connotations, meanings and uses of the words and
phrases such as “freedom of expression‟, “freedom of speech‟, “right to communication”,
“communication right”, “right to information” and “access to information” are intertwined and
synonymous.
The notion “freedom of expression” can be understood from two approaches, inter alia
“equality of human being‟ and “interest of political liberty‟. In equality view, free speech rights
serve an overarching interest in political equality and on the second view, people are entitled

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to make their own individual evaluations of speech, and government is forbidden to intervene
for paternalistic or redistributive reasons. Having freedom of speech, one can communicate
ideas without any suppression or interference or punitive action. The rights protect individual’s
ability to think and to express thoughts in material form, including written, filmed, staged, or
otherwise depicted visually. It protects all speech, however offensive or unpopular. It is the
bulwark of liberty.
Under its Article-39, the Constitution of Bangladesh guarantees the freedom of thought and
conscience, and of speech. Recognizing it as a constitutional right, second paragraph of the
Article says-the right is guaranteed subject to any reasonable restrictions imposed by law in the
interests of the security of the State, friendly relations with foreign states, public order, decency
or morality, or in relation to contempt of court, defamation or incitement to an offence.
Although the constitution provides for freedom of expression subject to reasonable
restrictions, the press can be constrained by national security legislation as well as sedition
and criminal libel laws. The punishment for sedition ranges from three years to life in prison.
The 15th amendment to the Constitution includes language that equates criticism of the
constitution with sedition. There are laws which can help protections for the right to freedom
of expression and information, including media freedom in Bangladesh, such as the
Community Radio Installation, Operation and Broadcast Policy, 2008; The Right to
Information Act, 2009 and the establishment of an Information Commission under this Act;
the National Policy on Information and Communication Technology (ICT), 2009 and The
Whistle Blowers Act, 2011. The Right to Information Act, 2009 guarantees the rights to all
information held by public bodies, simplifies the fees required to access information, overrides

existing secrecy legislation, and grants independence to the Information Commission tasked
with overseeing and promoting the law, according to the press freedom group.
Law 39. Freedom of thought and conscience, and of speech
(1) Freedom of thought and conscience is guaranteed. .
(2) Subject to any reasonable restrictions imposed by law in the interests of the security of the
State, friendly relations with foreign states, public order, decency or morality, or in relation to
contempt of court, defamation or incitement to an offence. .
(a) the right of every citizen to freedom of speech and expression; and
(b) freedom of the press, are guaranteed. .

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Reazuddin Ahmed, a former president of Bangladesh Federal Union of Journalists, said,
“Section 57 is a draconian law and it should be repealed as it goes against the spirit of freedom
of press and freedom of expression.”

Freedom of speech or expression is threaten in Bangladesh

Recent events make it clear that the answer is most certainly yes. Prominent human rights
lawyer Sultana Kamal was threatened by Hefazat-e-Islam with physical violence after making
hypothetical comments on a television talk show. In the meantime, a legal notice was served
demanding the arrest of veteran journalist Afsan Chowhdury, who has been accused under the
ICT Act of defamation in a Facebook post.
Both cases point to a deeply disturbing trend in Bangladesh — the slow and steady clamping
down of our fundamental, democratic right to free speech. But as the two examples show, the
threat to freedom of speech is coming from two different directions, one from extremists trying
to hit at the constitutional freedoms of the country, the other from the government itself.
Because of these forces, the free press of Bangladesh is also under attack: Journalists routinely
find themselves under fire for simply doing their jobs, and there are countless accounts of media
personnel being assaulted by law enforcement agencies or politically-connected goons. It is no
wonder that Reporters Without Borders ranks as as one of the worst countries in the world for
press freedom, ranking 146 in the Press Freedom Index.
Section 57 of the Information and Communication Technology Act stipulates that any post,
image, or video on an electronic format that causes to deteriorate law and order, prejudice the
image of the state or person or hurt religious beliefs are non-bailable offences. The punishment
is a minimum seven years in prison up to a maximum of 14 years. The fines can go up to Tk1
crore.

The Section-57 of the Information & Communication Technology Act, 2006

The concern section of the Information & Communication Technology Act, 2006 stated, “If
any person deliberately publishes or transmits or causes to be published or transmitted in the
website or in electronic form any material which is fake and obscene or its effect is such as to
tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances,

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to read, see or hear the matter contained or embodied in it or causes to deteriorate or creates
possibility to deteriorate law and order, prejudice the image of the State or person or causes
to hurt or may hurt religious belief or instigate against any person or organization, then this
activity of his will be regarded as an offence. In providing punishment, it says-Whoever
commits offence under sub-section (1) of this section he shall be punishable with imprisonment
for a term which may extend to ten years and with fine which may extend to Taka one crore.

Section 57 of The Information & Communication Technology Act,

2006
The concern section of the Information & Communication Technology Act, 2006 stated, “If
any person deliberately publishes or transmits or causes to be published or transmitted in the
website or in electronic form any material which is fake and obscene or its effect is such as to
tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances,
to read, see or hear the matter contained or embodied in it or causes to deteriorate or creates
possibility to deteriorate law and order, prejudice the image of the State or person or causes
to hurt or may hurt religious belief or instigate against any person or organization, then this
activity of his will be regarded as an offence. In providing punishment, it says-Whoever
commits offence under sub-section (1) of this section he shall be punishable with imprisonment
for a term which may extend to ten years and with fine which may extend to Taka one crore.

Recent Experience of Enforcement of This Section

Section-57 of the Information and Communication Technology (ICT) Act, 2006
particularly this section contains vague wordings, allowing its misuse against newsmen and
social media users. The demand for its repeal intensified following the arrest of journalist
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Probir Sikdar who was arrested and sent to jail after he posted a status on Facebook, expressing
fear that his life was in danger and that a Minister, a renowned businessman and a fugitive war
criminal would be responsible if he were killed. Following the post, a party leader sued against
him under the ICT act for “tarnishing the image” of the minister. Before getting released after
a huge people’s protest he had to endure mental torture in custody apart from physical
sufferings.
Four bloggers inter alia Asif Mohiuddin, Subrata Adhikari Shuvo, Moshiur Rahman Biplob
and Rasel Parvez are also facing trial under section-57 of the ICT Act for allegedly making
derogatory comments about Islam and hurting religious sentiment. Applying this section has
been arbitrarily detain Nasiruddin Elan, Director of prominent human rights organization
Odhikar, has been arbitrarily detained and he was denied bail by the cyber crimes tribunal on
6 November 2013. Adilur Rahman Khan, Odhikar’s Secretary, has also been charged under the
ICT Act and still he is in detained.
According to a source at the Cyber Tribunal in Dhaka, around 700 cases have been filed under
section 57 since 2013. A total of 260 cases were filed till the first week of June this year, the
Star Weekend magazine reported, quoting the source
On July 2, Iqbal Hossain Chowdhury Milton, chairman of Islampur Union Parishad in
Rangunia upazila of Chittagong, filed a case against senior reporter of daily Samakal, Taufiqul
Islam Babar, over a June 22 report on the alleged involvement of AL leader Hasan Mahmud's
aides in criminal activities.
Three journalists were sued by Afruz Mia, president of Pukra union Jubo League in Habiganj,
on June 3 over a report involving local AL lawmaker Abdul Majid Khan.
The accused are Golam Mostofa Rafiq, editor of Daily Habiganj Samachar; acting editor Rasel
Chowdhury and Managing Editor Niharanjon Saha Niru.
Rights activists and journalists have been critical of section 57 from the very beginning and the
debate over the provision and demand for its repeal intensified following the arrest of journalist
Probir Sikdar in 2015.

The veteran journalist was arrested and sent to jail after he posted a status on Facebook,
expressing fear that his life was in danger and that LGRD Minister Khandaker Mosharraf
Hossain, businessman Moosa bin Shamser and fugitive war criminal Abul Kalam Azad would
be responsible if he were killed.
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Tahmina Rahman, Bangladesh and South Asia director of ARTICLE 19, a UK-based rights
body, said section 57 is not only a problematic provision but has a huge potential for violations
and abuse against people who exercise freedom of expression. “The grounds are very broad,
not narrowly defined. The section lacks clarity and doesn't provide for the protections that we
have in other laws. So when the section is used, there are chances of misuse. So we have been
calling for repeal of the section. There is no scope for reviewing section .”

Problems of section 57
According to statistics provided by prosecutors of the Cyber Security Tribunal, around 740
cases have been filed across the country under the ICT Act in the last four years, with 60% of
them lodged under the controversial Section 57.
The increasing number of Section 57 cases has raised concerns that it is being misused to harass
people. There were only three such cases filed in 2013, but this number has increased
exponentially each year since with a record 319 already filed for 2017.
Numerous journalists, students and teachers have been imprisoned under Section 57, which has
been called “draconian” for its interpretation and implementation by law enforcement agencies.
“The issue is not whether Section 57 is staying or if it is being accommodated as section 19 of
the new law,” said journalist Probir Sikder, who is himself facing a case under the act. “My
view is that no interference should be made on the freedom of expression of the people. The
law is being used to harass people.”

Most other parts of the text are understood but section-57(1) of the Act outlines the scope of
Cyber Crime and appears most confusing. From the text of the Act it appears that even any
innocent online posting can become a Cyber Crime, if the authority believes that it has
provoked a third person to become derailed or dishonest. In other words, the crime doesn’t
depend on the offensive or illicit nature of the posted material. It depends on the readers‟ or
viewers‟ personality and attitude. The question is, if a crime-prone person becomes derailed or
dishonest by watching or reading a seemingly honest content then why an innocent content
provider will be responsible for that crime-prone person’s act? Need an expert opinion from
any lawyer to make sure that we aren’t missing something here. On the other hand the
Information and Communication Technology Act, 2006 is far more ambiguous that leaves
unprecedented and unchecked power at the hands of the „authority‟. According to article-
57(2), such offender can be punished with a sentence of up to ten years imprisonment and a

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fine up to Taka one crore. Since Cyber Crime is being treated as a serious offence, the nature
and definition of the crime needs to be unambiguous, transparent and clear in its expression.
The ICT Act contains a number of vague, imprecise and overbroad provisions that serve to
criminalize the use of computers for a wide range of activities in contravention of the right to
freedom of expression, including the right to receive and impart information, protected under
international law. Although the right to freedom of information is not absolute, there the
restrictions contemplated under the Act do not fall within the scope of exceptions permissible
under international law, including Bangladesh’s treaty obligations. Section-57 of the ICT Act
criminalized publishing or transmitting or causing to publish or transmit any material which is
fake and obscene or its effect is such as to tend to deprave and corrupt persons who are likely,
having regard to all relevant circumstances, to read, see or hear the matter contained or
embodied in it or cause to deteriorate or create possibility to deteriorate law and order, prejudice
the image of the State or person or cause to hurt or may hurt religious belief or instigate against
any person or organization, then this activity of his will be regarded as an offence. This
provision is incompatible with Bangladesh’s obligations under Article-19 of the ICCPR. The
offences prescribed are vague and overbroad, the restrictions imposed on freedom of opinion
and expression go beyond what is permissible under Article 19(3) of the ICCPR and the
restrictions are not necessary and proportional to achieve a legitimate purpose.
According to different professors, senior journalists, jurist and lawyer Section 57 of the ICT
Act seizing the freedom of expression as provided in our constitution and UDHR as before
discussed both articles. This section let the wrong doer who were pulled up in public via news
in papers and other news websites by their brave journalists filing suit against the journalist
though it is true or false is a long term matter of judgment or prosecution. And most vaguely
Section 9 of the ICT Act made the ICT security authority to arrest and search without any
warrant. This Section 57 & 19 is one of the powerful destroyer of freedom of expression and
privacy of common people and the journalists and it is also harassing them somehow. The
punishment is so long and fine is too much to repay for such an offence. It is a matter of lack
of concern of our Law Administration Authority that they are not taking enough steps to sole
such a big mistake they made. Section 57 & 19 of ICT Act is greatly need proper changes so
that no undesirable conflict arises here to ruin or harass someone’s life. The punishment & the
fine should be lesser as recommended by the appropriate authority. The Interpretation of
Statutes Act provides that “which law in force in particular time shall be granted and executed
as the manner described their”

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Cases and Consequences
The cases under section 57 increasing day by day though there is a huge controversy going on about
this section since its enactments. The amount of case since 2013 to till now is more than 450 cases
already filed. Now the burning question is under the old law or the new law these cases be investigated
or under new law.
At least 21 journalists were sued under section 57 of the Information and Communication Technology
Act in the last four months amid growing demand for repeal of the provision which is wide open to
misuse.
Though the law minister on several occasions said the section would be scrapped, cases filed against
journalists under the provision are on the rise with their leaders as well as rights activists terming it a
tool to muzzle the press and freedom of expression.
The Daily Star has found that 11 cases have been filed against 21 journalists since March 1 this year
under section 57, and most of the cases are related to news reports.
Three journalists were sued by Afruz Mia, president of Pukra union Jubo League in Habiganj, on June
3 over a report involving local AL lawmaker Abdul Majid Khan.
The accused are Golam Mostofa Rafiq, editor of Daily Habiganj Samachar; acting editor Rasel
Chowdhury and Managing Editor Niharanjon Saha Niru.
The ICT law was enacted by the BNP-Jamaat government in 2006.
Before its 2013 amendment, maximum punishment for offences under the section was 10 years'
imprisonment and a fine of Tk 1 crore. Besides, police had to seek permission from the authorities
concerned to file a case and arrest any person under the law.
After the amendment, the maximum jail term was raised to 14 years. And law enforcers were
empowered to make arrests without a warrant.

Concluding Remarks & Recommendations

Freedom of expression is an important indicator of a democratic society and development. If

freedom of expression is prevailed in a country or society, other democratic rights and
freedoms will automatically be ensured.
1.If the government wants to keep it, there should be rules of procedure specifying how the act
would be applied .
2.The concerned Ministry (ICT), has enacted the rules of complain procedure, there is
the possibility that the recent notice will stop the misuse of the law. As soon as possible it

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should be implemented and media can play a role to aware people about this order so that law
should be applied cautiously.
3. We believe that our government will keep their promise and this section has to be erased
from the concerned Act as it has gone much beyond the reasonable restrictions put by the
constitution on freedom of speech
4.Law enforcing agencies inter alia police should be guided properly in enforcing this section..
5. Section-57 of the ICT Act, 2006 is a clear violation of the rights enshrined in article-3949 of
the constitution of Bangladesh. That’s why provision should be amended and should be made
clear as per the constitutional guarantee prevail and international obligation of the state remains
protected.
6.Citizens should be made properly educated and aware of writing and posting anything in the
form of electronic contents that may affect anyone’s religious belief.
7.Hard law is violated immensely. Going through this experience of the history penalty
provided under this section may be reconsidered, amended therefore and new form of
punishment may be provided.
8.This section should be clarified properly, so that the social media user can maintain social
communication without any sort of fear and threat of arrest.
Finally
By exercising the freedom, people can participate in decision-making through free access to
information and ideas. To understand the presence of freedom of expression and right to
information, we need to understand the local political context, history and cultures. Bangladesh
is politically a highly polarized and divided country. The guarantees of the rights do not depend
only on the relevant laws, but social, political and cultural processes. Despite the presence of
all difficulties, it can be argued that there is certain level of freedom of expression in
Bangladesh than any other developing countries. But it is positive that the Government of
Bangladesh moving forward to amend the Section-57 of the Information and Communication
Technology Act, 2006 because it is being used to assault freedom of expression and freedom
from arbitrary detention. This should be done for ensuring rule of law, rule of justice, and the
stability of democratic process and establishment of long term democratic culture in
Bangladesh.

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 Bibliography

https://bdnews24.com/bangladesh/2017/11/29/controversial-section-57-
http://techworldbd24.com/detail.php?id=2027
http://www.iosrjournals.org/iosr-jhss/papers/Vol.%2021%20Issue1/Version-
2/L021126271.
https://futrlaw.org/section-57-freedom-of-speech-balance/

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