II. Legal framework
Constitutional privacy protections
The right to privacy is still in a nascent stage in Bangladesh and swimming in a grey area of constitutional protection. In several places, the constitution addresses the issue, though not in unequivocal terms and not covering all aspects of privacy:
- Article 11, human dignity: "The Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed."
- Article 43, privacy of home and correspondence: "Every citizen shall have the right, subject to any reasonable restrictions imposed by law in the interests of the security of the State, public order, public morality or public health, to be secured in his home against entry, search and seizure; and to the privacy of his correspondence and other means of communication."
Communications surveillance is conducted by the government through a national monitoring centre run by officials of the intelligence agencies, under the aegis of the home ministry. In 2006, the High Court heard a writ petition filed by the New Age editor, Mr. Nurul Kabir, and the treasurer of the human rights coalition Odhikar, Ms. Tasneem Siddiqui. In response, on May 18, 2006, a High Court bench of Justices M Awlad Ali and Zinat Ara issued a ruling requiring the government to explain why the Telecommunications (Amendment) Act 2006, enacted on February 16, 2006 and making provisions for telephone tapping, should not be declared unconstitutional. The government and the Bangladesh Telecommunication Regulatory Commission (BTRC) were also asked to explain the legality of the action taken by the commission in issuing the guidelines of March 16, 2006, which amended that law and imposed new licensing conditions on telephone operators. This challenge is still pending in the High Court.
Statutory privacy protections
The Information and Communication Technology Act, passed by the Bangladeshi Parliament in 2006, aimed to enhance the use of information communication technology (ICT) across all of Bangladeshi society. The Act touches on the issue of privacy in sections 78 and 79, which approximate section 72 of the Indian Information Technology Act, 2000.1
The Bangladesh Telecommunication Regulatory Commission has been set up under the Home Ministry to coordinate the tapping and monitoring of phone calls. The Commission has been authorized to record any calls it deems necessary.2
Three private international gateways, six interconnection exchanges, and one international Internet gateway recently began operation under the Commission's international long distance telecommunications system policy.
According to this policy:
- Interconnection exchanges and international gateways, network access service providers (mobile operators), and Internet telephony and VSAT hub operators will provide the Commission with the connections, equipment, instruments, and software needed for online and off-line monitoring.
- Operators must provide access, including the necessary equipment and software, to the law enforcement agency for "lawful interception" as provided for in the Bangladesh Telecommuniations Act 2001.
- Telephony operators must also provide records of call details and any other monitoring facilities of voice and/or data calls, for both online and off-line monitoring by the Commission. The commission may set up a monitoring centre at the submarine cable landing stations, if required.
For example, the Bangladeshi government generally and the Prime Minister's Office (PMO) specifically states that it "respects privacy and is committed to protect personal information that you share with us [government]". However, the government's official web site3 does not appear to meet these standards. For example, the website states that data provided by users on the site may be shared with other government agencies and departments as necessary.
National ICT policy
In 2006 the Parliament of Bangladesh enacted the Information and Communication Technology Act (ICTA 2006).4 The ICTA does not define cyber law. However, the Act does contain relevant provisions that create the legal infrastructure for e-commerce and set out sanctions intended to curb cybercrime in Bangladesh. The Act enables:
- Legal recognition of electronic transactions;
- Legal recognition of digital signatures;
- Electronic contracts;
- E-commerce and electronic forms;
- Electronic publication of the official gazette;
- Prevention of computer crime, forged electronic records, intentional alteration of electronic records, and falsification of e-commerce and electronic transactions; and
- Other responses to crimes relating to information and communications technology.
The Bangladeshi government is considering enacting a law specifically to curb cybercrimes and pornography in the country. On 2 January 2012 the government approved a draft Pornography Control Act 2011 that provides for a maximum of 10 years imprisonment or Tk 5 lakh fine or both for pornography-related offences.
On the other hand, the Information and Communication Technology Act 2006 stipulates "a maximum punishment of up to 10 years of imprisonment or a maximum fine of Tk 10 million, or both" for cybercrime.
Some of the identified cybercrimes are:
(i) Hacking or unauthorized entry into information systems;
(ii) Distributing viruses;
(iii) Publishing or distributing obscene content in electronic form;
(iv) Tampering with electronic documents required to be kept under the law;
(v) Fraud using electronic documents;
(vi) Violation of privacy rights such as stalking;
(vii) Violation of copyright, trademarks or patents;
(viii) Defamation through email;
(ix) Sending out threats through email.
The list can be expanded to include additional types of activities.
Under section 68 of the ICTA 2006, the government must establish one or more cyber tribunals to ensure the speedy and effective disposal of cases under the Act, the tribunal should try only the offences under the Act and the government can determine the local jurisdiction of the tribunal. The government must appoint a Sessions Judge or Additional Sessions Judge in consultation with the Supreme Court.
The cyber tribunal takes cases for trial:
a) upon the report of a police officer not below the rank of sub-inspector; or
b) upon a complaint made by a controller appointed under the Act or by any other person authorized by the controller.
The cyber tribunal's trial procedure follows chapter 23 of Criminal Procedure Code, 1893 (the trial procedure for the Court of Sessions). If the accused absconds, the tribunal can try the case in absentia. In this case, the tribunal has to publish an order in two Bangladeshi newspapers notifying the accused to appear on a specified date. The cyber tribunal applies the provisions of the Criminal Procedure Code and has the same power as a Sessions Court would have in its original jurisdiction. The public prosecutor conducts the case on behalf of the government.
The tribunal must conclude the trial within six months from the date of framing charges. This period may be extended for three months. The tribunal must pronounce its judgment within ten days after the conclusion of trial; the judgment may be deferred for ten days.
Cyber appellate tribunal
The ICTA 2006 mandates that the government establish one or more appellate tribunals. The appellate tribunal is to be made up of one chair and two members appointed by the government. The chair must be a former or current judge of the Supreme Court or be eligible to be appointed as a judge of the Supreme Court. One of the two tribunal members must be a retired District Judge or employed in the judicial service and the other must be an experienced and skilled person in information and communication technology. They will be appointed for three to five years.
Under the ICTA 2006, the appellate cyber tribunal will have no original jurisdiction, and will hear and dispose only of appeals from the order and judgment of the cyber tribunal and, in appropriate cases, the Sessions Court. The appellate tribunal's decision is final, and it has the power to alter, amend, and annul the order and judgment of the cyber tribunal. The appellate tribunal must follow the appellate procedure of the High Court Division of the Supreme Court. Until the appellate cyber tribunal is established, appeals may be heard by the High Court Division.
Supervisory authority for privacy laws and complaints
Bangladesh has no watchdog to whom citizens can bring complaints if the authorities infringe their privacy rights. Citizens may seek bring an action in court, but are often deterred from doing so because of concerns regarding the politicisation of the judiciary. For example, under the last caretaker government a former Minister's interrogation was taped by law enforcement agencies and was then made public. The Minister, Abdul Jalil did not take the matter to court, as he believed the court was backed by and supportive of the government.
Therefore, citizens whose rights to privacy have been compromised by the state, private companies, or an influential individual, have no effective avenues of redress.
Outstanding civil society advocacy and other work
Civil society and human rights groups have highlighted that the failure to protect personal privacy is a violation of human rights issues as defined in Article 43 of the Constitution. These groups, along with media freedom activists and non-profit organizations, have also called for reforms and demanded that the government bring about changes in the law to ensure the right to privacy.
The media advocacy networks have strategically engaged with the government in order to draft a new law to support the Right to Information (RTI) and freedom of expression provisions laid down in the constitution. Their goals are to:
● Form an independent Privacy Commission;
● Amend the Telecommunications Act 2006 to protect the right to personal privacy;
● Develop information technology for easy access by the poor.
It is understood that the enactment of RTI coupled with the abolition of the antiquated State Secrecy Act 1923 has opened doors for influencing the government to reform privacy laws and policy. The Secrecy Act superseded all democratic norms and principles.
Freedom of information laws
On October 21, 2008 the caretaker government of Bangladesh published in the Bangladesh Gazette the Right to Information Ordinance (No. 50 of 2008), based loosely on the Indian Right to Information Act 2005. The Ordinance was passed by the government elected in 2008 in the first session of this parliament on March 29, 2009.5
- 1. C.f. Right to privacy: How far protected? S. M. Masum Billah, The Daily Star, October 31, 2009 http://www.thedailystar.net/law/2009/10/05/monitor.htm
- 2. Govt set to monitor phone calls despite writ pending with High Court, Taib Ahmed, NewAge, August 27, 2008 http://struggleforliberty.wordpress.com/2008/08/29/govt-set-to-monitor-p...
- 3. If you send us an electronic mail message with a question or comment that contains personally identifying information, or fill out a form that e-mails us information, we will use this personally identifying information only to respond to your request. We may redirect your message to another government agency or person who is in a better position to respond to your query or comment. All e-mail messages received contain the e-mail addresses of persons who voluntarily communicated with or requested information from us. Your e-mail addresses are not sold, leased or shared with any non-governmental or commercial entities without your consent. When a user has given us their e-mail address for purposes of communicating with or requesting information from us, that communication becomes part of the public record and may be subject to public inspection and copying if not protected by law. (emphasis added) Information submitted via e-mail or web forms may be at risk of being intercepted, read or modified. You are advised not to pass on any personal and confidential information such as security passwords and credit card numbers while using this website unless specifically required by an authorized person. Prime Minister's Office in particular or the government of Bangladesh shall not be liable for any misuse or loss of any such information. See http://www.bangladesh.gov.bd/index.php?Itemid=148&id=75&option=com_conte...
- 4. C.f. Cybercrime and Its Impact in Bangladesh, Prof. M. Z. Manum, Prepared by: Md. Tanvir Hasan, Md. Azizul Haque, Taranna Ansar, Naznin Akther Runa, Belal Hossain, ULAB, Dhaka, May 10, 2009, http://www.scribd.com/doc/27042582/Cybercrime-and-its-Impact-in-Bangladesh
- 5. C.f. Law Commission of the Republic of Bangladesh Working Paper on the Proposed Right to Information Act 2002 by ARTICLE 19, March 2004, http://www.article19.org/data/files/pdfs/analysis/bangladesh-right-to-in...