A CRITICAL ANALYSIS OF SECTION 57 OF ICT ACT, 2006

1.1 Introduction

The recently amended ICT Act 2006 is an ill-conceived piece of legislation that needs to be
rethought in its entirety. The original law was problematic enough, but it has been amended for
the worse. The way things stand now, the act is the antithesis to the promise of a Digital
Bangladesh. Article 57 of the act is particularly contentious. According to this article, anyone
who publishes anything in any online publication can be arrested by law enforcement, without
bail, if the law enforcement officer in question thinks that the writing can “create the
possibility” of making the law and order situation worse, or “may harm” one’s religious
sentiments. To make matters worse, no specific offence is made clear in the article, so anyone
may be culpable without knowing about it. And the punishment for this offence is a minimum
of seven years (and maximum of 14 years) imprisonment with a fine of up to Tk10m. Not even
the Penal Code allows for such harsh measures; for instance, one gets up to three years
imprisonment for rioting with a deadly weapon. All this act has done is given authorities the
opportunity to criminalize any type of online publication they dislike and to create a chilling
effect on online expression. While we agree that there’s a need to fight cyber crime, this does
not mean that anything goes. The AL government came into power partly on their promise to
create a Digital Bangladesh, which the public seemed to have embraced wholeheartedly. That
promise seems to have been kicked to the way side. Rather than working toward the aim of
Digital Bangladesh, the amended act has taken the nation backward.

1.2 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,1 having regard to all relevant
circumstances, to read, see or hear the matt er 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

1
Section-57 of the Information & Communication Technology Act, 2006

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 A CRITICAL ANALYSIS OF SECTION 57 OF ICT ACT, 2006

organization, then this activity of his will be regarded as an offence. In providing punishment
it says,2

„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 core.3

1.3 Controversies of Section-57

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 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, the re 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,

2
Md.Abu Hanif,Mass Media and Cyber Laws of Bangladesh,Hasan Law book,Dhaka,July 2014.p.359
3
http://bdlaws.gov.bd/pdf_part.php?id=367

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 A CRITICAL ANALYSIS OF SECTION 57 OF ICT ACT, 2006

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.

1.4 Punishment under section 57

Back in 2011 when I started blogging as a new by I posted many of the controversies and
defects of the existing ICT Act. of Bangladesh. The Act was amended and many new terms
and definitions were included along with the punishment for the crimes for keeping pace with
the increased use of technology. Yet, the Act. is not free from controversies. 4The Latest
controversy arose when the Section 57 of the Act. was amended back in 2013. As to the section,
if any person deliberately publishes any material in electronic form that causes to deteriorate
law and order, prejudice the image of the state or person or causes to hurt religious belief, the
offender will be punished for maximum 14 years and minimum 7 years imprisonment. 5

Furthermore, those crimes under Section 57 have been made non-bailable. At that time though
many challenged the decision through writ petition on High Court Division yet the Section
remained in force. What the experts feared that is the truth now. Because, filing of cases under
this Section increased by almost 200% in 2016 and most of the cases aren't being proved. Since
the crimes were made non-bailable, anyone out of outrage for personal harassment can easily
use it against another. With the increased use of Social networking today, people often are seen
to post on blogs and social networking sites about their personal thoughts and feelings. But
because of the section many normal acts are also being treated as criminal act and can be
brought before the Court.

Moreover they are being arrested and not being allowed to go on bail because of the
amendment. Besides, the technology we have is not enough to deal with crimes committed

4
http://bdlaws.gov.bd/pdf_part.php?id=367
5
http://www.thedailystar.net/forum/2009/june/freedom.htm

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 A CRITICAL ANALYSIS OF SECTION 57 OF ICT ACT, 2006

under this Act and so people are being harassed for no reason and without committing any
crime are kept in prison which is rude.

As we know, that an offence is committed when there is Actus-reus (Guilty act) and mens-reus
(Guilty mind) but the the section has been controversial to this fundamental principle of law
and justice.6

1.5 Points of Ambiguity

Section-57 of the Information and Communication Technology Act, 2006 is the

synonymous to ambiguity and a threat to people‟s free speech freedom of expression.
According to the legal experts this provision is a threat to people‟s right to freedom of
expression and speech. They believe the vague narrative of this section is misleading and is
allowing its misuse against newsmen and social media users. „Section-57 is so vague that law
enforcers can interpret it as they will to arrest anyone anytime.7‟ There is no any rule of
procedure or guidelines to the law enforcing agencies for applying this. This section is so
flexible to interpret in any way and any sort of expression in public can be covered. This one
is so obstruct and rough translation that a nude child site,8

1.6 New digital security Act by August

“If there is no clear guideline from the government, the trial would be under the ICT act if the
law still existed on the day of occurrence of the crime,” said Advocate M Asaduzzaman of the
High Court, adding that there is “no way” to put cases filed under this law under a new law.
“Trials of cases where charges have been filed would continue. Investigation into the cases will
also continue. If the new law is being used to try cases filed under the old act, it would create
chaos.” However, public prosecutors say that once the Digital Security Act is enacted, only the
cases in which charges have been already been pressed will continue under the old ICT Act.

6
http://www.thedailystar.net/forum/2009/june/freedom.htm
7
Md.Abu Hanif,Mass Media and Cyber Laws of Bangladesh,Hasan Law book,Dhaka,July 2014.p.359
8
http://www.article19.org/pdfs/publications/jo-burgprinciples-overview.pdf

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 A CRITICAL ANALYSIS OF SECTION 57 OF ICT ACT, 2006

“Cases where the charge sheet is still pending would be investigated under different sections
of the new Digital Security Act,” Public Prosecutor Nazrul Islam Shamim said, adding that the
trials in around 400 cases have already begun.9

Section 57 of the existing law concerns any post, image, or video on an electronic format that
“causes a deterioration in law and order, prejudices the image of the state or person or hurts
religious beliefs”. The proliferation of such content is a non-bailable offence punishable by
seven to 14 years in prison, and a fine of up to Tk1 crore

1.7 Also Read- Why are Section 19 and Section 57 the same?

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.10 “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.” In May, the law minister
said the new Digital Security Act will clarify what section 57 of the old law is supposed to
represent. “It will for once and for all prove that our government has no intentions to clamp
down on freedom of speech,” he said. Even though Section 44 of the draft Digital Security Act
will abolish Section 57 of the ICT Act, the controversial contents of the existing section have
been reworded as Section 19 of the draft law. The reworded section, however, proposes a
reduction in punishments to two months to two years in jail and a maximum of Tk2 lakh in

10
http://www.freedominfo.org/countries/sweden.htm

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 A CRITICAL ANALYSIS OF SECTION 57 OF ICT ACT, 2006

fines.ting on father‟s lap image publication can also be interpreted as an offence under the
section.

1.8 Recent Experience of Enforcement of This Section 57

Nearly 700 cases have been filed under the ICT Act since it was amended in 2013 and
November 2017 around 21case filed under section 57. 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 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. Mahmudur Rahman,
acting editor of a Bengali newspaper critical of the Government, has also been arbitrarily det
ained under the Act for publishing transcripts of a Skype conversation between former
International Crimes Tribunal Chairman and a Bangladeshi legal expert living abroad. 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 2013.11

Adilur Rahman Khan, Odhikar‟s Secretary, has also been charged under the ICT Act and still
he is in detained.12

1.9 Loopholes of section 57 of the ICT Act, 2006

Section 57 of the original 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

11
http://www.dhaka tribune.com
12
Ibid.p.360

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 A CRITICAL ANALYSIS OF SECTION 57 OF ICT ACT, 2006

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.13

These provisions of the original ICT Act, particularly section 57, are 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.

The ICT (amendment) Act 2013 makes the law even less compliant to Bangladesh’s human
rights obligations. Under the original Act, the police had to get permission from the Home
Ministry before registering a case under the law. The amended Act has made offences under
sections 54, 56, 57 and 61 cognizable, allowing the police to make arrests without a judicial
warrant.

In addition, under the amended Act, offences prescribed by sections 54, 56, 57 and 61 have
been made non-bailable, which means that bail cannot be sought as a matter of right but is at
the discretion of the court.

Lastly, the amended Act has also increased the maximum sentence for offences under sections
54, 56 and 57 of the Act from 10 to 14 years and prescribed a minimum sentence of seven
years. The amended law has also retained the optional fine of ten million taka ($130,000).

The ICJ is concerned that the amendments will have a chilling effect on the legitimate exercise
of public expression by journalists, human rights defenders and others, including expression
which may be critical of the Government.

The ICJ calls on the Bangladeshi Parliament to: Repeal the Information and Communication
Technology Act (2006), as amended in 2013, or to modify the ICT Act to bring it in line with
international law and standards, including Bangladesh's legal obligations under the ICCPR. At
a minimum, this would require that it

13
http://www.businessdictionary.com/definition/freedom-ofinformation.html

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 A CRITICAL ANALYSIS OF SECTION 57 OF ICT ACT, 2006

• Amend section 57 of the ICT Act so as ensure any contemplated restrictions on freedom of
opinion and expression are consistent with international law and standards.

• Amend section 57 of the ICT Act to ensure prohibited expression is clearly defined.

• Amend the ICT Act to ensure that any restriction to freedom of expression and information,
including any sanction provided for is necessary to a legitimate objective and proportionate to
the harm caused by the expression. ICT Calls on the Bangladeshi Government to:

• Take steps to ensure that provisions of the ICT Act are not used to violate the right to freedom
of expression, including to limit the legitimate exercise of comment on public matters which
might contain criticism of the Government.

• Immediately end the continuing arbitrary detention of Odhikar’s Director Nasiruddin Elan,3
and take immediate steps to withdraw the charges and ensure the termination of criminal
proceedings against Elan and Odhikar’s Secretary, Adilur Rahman Khan 4 (charges have been
filed against them under the Act).

• Drop charges and immediately end the arbitrary detention of Mahmudur Rahman, acting
editor of Bengali newspaper, Amar Desh.

• Drop charges against bloggers for the legitimate exercise of their freedom of expression.

• Direct Government agencies to desist from filing politically motivated cases unlawfully
restricting the exercise of expression, as well as and seeking penalties which are
disproportionate to the gravity of the alleged offence.14

2.1 Recommendations

In light of the above, the ICJ calls on the Bangladeshi Parliament to: Repeal the Information
and Communication Technology Act (2006), as amended in 2013, or to modify the ICT Act to
bring it in line with international law and standards, including Bangladesh's legal obligations
under the ICCPR. At a minimum, this recommendation should be fulfilled:

14
http://www.un.org/documents/ga/res/1/ares1.

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 A CRITICAL ANALYSIS OF SECTION 57 OF ICT ACT, 2006

 Amend section 57 of the ICT Act so as ensure any contemplated restrictions on

freedom of opinion and expression are consistent with international law and standards.
Amend section 57 of the ICT Act to ensure prohibited expression is clearly defined.

 Amend the ICT Act to ensure that any restriction to freedom of expression and
information, including any sanction provided for is necessary to a legitimate objective
and proportionate to the harm caused by the expression.

 Take steps to ensure that provisions of the ICT Act are not used to violate the right to
freedom of expression, including to limit the legitimate exercise of comment on public
matters which might contain criticism of the Government.
 Drop charges and immediately end the arbitrary detention of Mahmudur Rahman,
acting editor of Bengali newspaper, Amar Desh.
 Drop charges against bloggers for the legitimate exercise of their freedom of
expression.
 Direct Government agencies to desist from filing politically motivated cases
unlawfully restricting the exercise of expression, as well as and seeking penalties
which are disproportionate to the gravity of the alleged offence.
 The nature of offence under section 57 must be billable.
 Amend the term of punishment and fine under section 57 maybe 6 month to extent 5
years and fine maybe 10 lakh TK.
 Amend the section to ensure issue warrant in order to arrest.
 Amend the section in order to ensure bar to punishment of child under this section.

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2.2 Conclusion
In order to remove Loopholes of section 57 of the ICT Act, 2006 there istwo
approaches could be taken to stop the abuse of this section. First, this section could be
deleted altogether. In this case, the criminal code of procedure needs to be updated to
deal with crimes committed by using social media. Second, it can be amended with the
inclusion of clear definitions of the offences mentioned and by assigning punishments
according to the magnitude of the crimes. Third, the relevant court should be authorised
to decide whether an accused will get bail or not. At the same time, social media users
also need to learn the limits of their freedom of expression. Spreading false or distorted
information or image, defamation, hate speech, issuing threats through Facebook posts
and messages instigating violence must not be protected in the name of free speech.

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Bibliography

Book:

 Md.Abu Hanif,Mass Media and Cyber Laws of Bangladesh,Hasan Law

book,Dhaka,July 2014

Websites:

 http://www.un.org/documents/ga/res/1/ares1.
 http://www.businessdictionary.com/definition/freedom-ofinformation.html
 http://bdlaws.gov.bd/pdf_part.php?id=367
 http://www.thedailystar.net/forum/2009/june/freedom.htm
 http://www.article19.org/pdfs/publications/jo-burgprinciples-overview.pdf
 http://www.google.com
 http://www.freedominfo.org/countries/sweden.htm
 http://www.dhaka tribune.com

Acts & Conventions:

 Constitution of peoples republic of Bangladesh
 Europe an Union (2001) Regulation (EC) No 10 49/ 2001 of the European Parliament
and of the Council of 30 May 2001 regarding public access to European Parliament,

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Council and Commission documents, Official Journal of the European Communities

L145/43
 Information, communication and Technology Act 2006, Commonwealth Secretariat Doc.
LMM(02 ) 6
 Universal Declaration of Human Rights (UDHR), ICCPR

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