Right to online anonymity: an essential to protect the right to Freedom of Expression
Barrister Al Amin Rahman, Advocate, Bangladesh Supreme Court and Partner at FM Associates, Bangladesh
The Constitution of the People’s Republic of Bangladesh under its article 39 guarantees freedom of expression with some reasonable restrictions. Article 39 of the Constitution of the People’s Republic of Bangladesh provides that 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 the right of every citizen to freedom of speech and expression is guaranteed. Therefore, under Article-39, the Constitution of Bangladesh guarantees the freedom of thought and conscience, and of speech. Recognising it as a constitutional right; the second paragraph of the Article says that the right is guaranteed subject to any reasonable restrictions imposed by law. Article 19 of the Universal Declaration of Human Rights (UDHR) 1948 and the International Covenant on Civil and Political Rights (ICCPR) 1966 enshrine freedom of expression or speech. Article 19 of the UDHR says: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” In the same vein, article 19 of the ICCPR says: “Everyone shall have the right to hold opinions without interference. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” And, this right may “be subject to certain restrictions, but these shall only be such as are provided by law and are necessary.”
However, in Bangladesh, section 57 of the Information and Communication Technology (Amendment) Act 2013 (Act of 2013) empowers law enforcers to arrest any person without warrant and increase the highest punishment to 14 years from minimum 7 years. The government has later promulgated the ICT (amendment) ordinance. Therefore, 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. It also suggested that the crime is non-bailable. The government views the matter as without section 57 of the Act of 2013, it will not be possible to tackle cyber crime, and there would be a rise in such incidents. The section shall be used against those who spread fabricated news. In this regard, Brad Adams, Asia director at Human Rights Watch said that “The government of Bangladesh acknowledges that the current section 57 of the ICT Act is draconian, and needs to go, But the new law being proposed is hardly an improvement, creating a series of new offences that will undoubtedly be used for years to come against government critics in the country’s highly politicized criminal justice system.”
The 89-page report, No Place for Criticism: Bangladesh Crackdown on Social Media Commentary details dozens of arbitrary arrests since the Information and Communication Technology Act 2006 was amended in 2013 to incorporate harsher penalties and allowing the police to make arrests without warrant. As of April 2018, the police had submitted 1,271 charge sheets to the Cyber Tribunal in Dhaka, claiming sufficient evidence to prosecute under section 57 of the ICT Act.
Scores of people have been detained for months at a time before being released pending trial, some simply for political criticism in Facebook posts or for caricaturing Prime Minister Sheikh Hasina Wazed, her relatives, and colleagues. Others were arrested for offending religious sentiment or for defamation. Section 57 of ICT Act authorizes the prosecution of any person who publishes, in electronic form, material that is fake and obscene; defamatory; “tends to deprave and corrupt” its audience; causes, or may cause, “deterioration in law and order;” prejudices the image of the state or a person; or “causes or may cause hurt to religious belief.” The 2013 amendments eliminated the need for arrest warrants and official permission to prosecute, restricted the use of bail to release detainees pending trial, and increased prison terms if convicted. A new Cyber Tribunal dedicated to dealing with offences under the ICT Act was also established. As a result, the number of complaints to the police, arrests, and prosecutions soared.
Bangladeshi citizens have been arrested for criticizing the prime minister’s clothes, her foreign policy, her party, or the actions of her cabinet colleagues. The police have acted on complaints made by her political supporters or even on their own. For instance, in April 2018, after a student protest at Dhaka university, a police officer filed a complaint referring to 43 “provocative” Facebook posts, which “many have liked and commented on” that “created a situation which could potentially harm society and create chaos,” and proposed action under section 57. In April 2017, Monirul Islam, a rubber plantation worker in Srimongol, was arrested for “liking” a Facebook post that criticized the ongoing official visit of the prime minister to India, after a party supporter filed a police complaint saying he “was extremely hurt and agitated.” Press freedom is also under threat from section 57. Many journalists and editors have been arrested for online articles alleging corruption, maladministration, or criticizing particular individuals. In June 2017, police arrested Golam Mostafa Rafiq, editor of Habiganj Samachar, for an article published in the online edition of the newspaper which speculated a ruling party MP would not get the party nomination.
In July 2017, numerous journalists protested the arrest of Abdul Latif Moral for allegedly “sharing” an article on Facebook, reporting that a goat given as part of a relief initiative had died, with the “intention to defame the minister.”
As mentioned in a Report, dated June 2015; of Article 19, a British human rights organization, the protection of anonymity is a vital component in protecting both the right to freedom of expression and the right to privacy. Anonymity allows individuals to express themselves without fear of reprisals, and is especially important in those countries where freedom of expression is heavily censored. It enables whistleblowers to come forward and individuals to disclose their innermost concerns on a variety of issues in internet chat rooms. It also allows users simply to join in with all manner of discussions that they might otherwise avoid. On the Internet the anonymity is guaranteed when IP addresses cannot be tracked, due this reason it has been observed a rapid diffusion of the use of Anonymizing services such as I2P and the Tor network. The anonymizing services are based on the concept of distribution of routing information, during a transmission in fact is not known prior the path between source and destination and every node of the network manage minimal information about packet routing.
The unpredictable routing of the packets and the introduction of encryption algorithms complicate the wiretapping of the information.
The Supreme Court of the United States has ruled repeatedly that the right to anonymous free speech is protected by the First Amendment. A much-cited 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission reads:
Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical minority views . . . Anonymity is a shield from the tyranny of the majority. . .
Many institutions and foundations, such as The Electronic Frontier Foundation, are spending a great effort to protect the rights to on line anonymity. As one court observed in a case handled by EFF along with the ACLU of Washington:
“[T]he free exchange of ideas on the Internet is driven in large part by the ability of Internet users to communicate anonymously.”
US First Amendment settled that the right to speak anonymously, the Supreme Court has held,
“Anonymity is a shield from the tyranny of the majority”that“ exemplifies the purpose” of the First Amendment: “to protect unpopular individuals from retaliation…at the hand of an intolerant society.”
Court pronunciations establish the duty of the Government to guard against undue hindrances to political conversations and the exchange of ideas, a vigilant review that “must be undertaken and analyzed on a case-by-case basis”. US laws establish a right to speak anonymously on the Internet and also right to read anonymously on the Internet, ensuring the principle of free internet ideological confrontation and the right to free movement of information.
The right to internet anonymity is also covered by European legislation that recognizes the fundamental right to data protection, freedom of expression, freedom of impression. The European Union Charter of Fundamental Rights recognizes in Article. 8 (Title II: “Freedoms”) the right of everyone to protection of personal data concerning him.
Hence, time has come to acknowledge that anonymous platforms should be promoted in Bangladesh for enjoying the constitutional right to freedom of expression and in that way we may prevent misuse of section 57 of the Information and Communication Technology (Amendment) Act 2013.