Resolving the issue of Section 57 in ICT Act

by Gazi Mizanur Rahman | Published: 00:05, Sep 09,2017

 
 

SECTION 57 of the ICT Act 2006 has been a point of discussion both in print and electronic media for quite a long time now. Opinion writers and television talk-show discussants have expressed their concern that many a case has been instituted under this section for the interest of individuals without any valid ground. Civil society actors demand the repeal of Section 57 whereas the legal administration assures that a new law in the name of the Digital Security Act is on the cards and this law will address the concern of people. But when the draft of the forthcoming law was shared with the public, it has been found that people’s concern has not yet been attended in it.
Section 57 of ICT Act 2006 provides for punishment for publishing in electronic forms fake, obscene, prurient materials or materials defamatory to state or religion or an individual. The section reads:
— If any person deliberately publishes or transmits or causes to be published or transmitted in the web site 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 organisation, then this activity of his will be regarded as an offence.
— Whoever commits offence under sub-section (1) of this section, he shall be punishable with imprisonment for a term which may extend to fourteen years with a minimum of seven years and with fine which may extend to taka one crore.
The ICT Act 2006 took effect in October 2006. It was amended in July 2009 to establish the office of the CCA that deals with the issue of electronic or digital signature and matters related to the administrative issues of the ICT Act. In October 2013, the act was again amended to increase the imprisonment term for some offences and to bring about changes in some procedural rules of which major ones are dividing the offences under the act into two categories, bailable and non-bailable, on the one hand, and cognisable and non-cognisable, on the other. Previously all the offences were non-cognisable and bailable. Now under the amended law, the offence under Section 57 is non-bailable and at the same time it is cognisable, which means the police can investigate a case without the order of the court and can arrest without warrant.
Our neighbour India promulgated its IT act in June 2000, six years earlier than our law. Our law is very much similar to India’s. The Indian act was extensively amended through the IT (Amendment) Act 2008, promulgated in February 2009. Section 66A and Section 67 of that amended act is the counterpart sections of Section 57 in the Bnagladesh law. Two sections in India’s act read:
— 66A. ‘Any person who sends, by means of a computer resource or a communication device,-
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to three years and with fine.’
— 67. ‘Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if 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, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.’
A reading of Section 57 of Bangladesh’s ICT Act 2006 shows that simple publication of electronic materials which are false and derogatory to individuals or prejudicial to the image of the state or religious harmony or law and order situation is an offence. Contents of Section 66A and 67 of the Indian act together are analogous to our Section 57. But the Supreme Court of India has scrapped Section 66A on March 24, 2015, pointing out that there is vagueness in it and it restricts the freedom of speech. Now Section 67 alone is the counterpart section of Section 57 in Bangladesh’s act. This alone does not go that further to cover publication of defamatory or derogatory materials. It only deals with pornography accompanied by other sections that deal with the sexual abuse of children and communication of the image of private parts of individuals. The Indian act mainly punishes the offences that are targeted against computer and based on computer system, such as unauthorised penetration to computer resources, hacking, identity theft, virus, denial of service etc. Publication as an offence covers only pornographic items, child-abusing images, disclosure of entrusted personal information, and images of private parts of individuals.
It is understood that if anybody commits a crime through an electronic method, be it against state, religion, law and order system, or a private person’s renown, there is the Indian Penal Code for dealing with it. India has updated the Penal Code of 1860 through amendment to some of its sections to combat the offences of defamation, breach of trust, breach of good conduct etc. committed through digital method. One example may be cited here. The amendment to Section 463 of the Penal Code provides that the words ‘Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury’ shall be substituted for the words ‘Whoever makes any false documents or part of a document with intent to cause damage or injury.’
From the above discussion, it is clear that if we genuinely want to update our law to guard against the misuse of Section 57 of the ICT Act, we have an example before us to follow. We can enact a new law comparing and contrasting our ICT Act with the Indian act or we can simply amend the ICT Act, as India has done. India has accommodated the required provisions to keep pace with the changed situation through the introduction of as many as 52 new entries that have provided ways to regulate the IT sector inclusive of electronic service regulation, personal data protection, traffic data preservation, computer emergency response team formation, etc.
In fine, we like to emphasise that whether be it through an amendment of existing law or an introduction of a new law, the issue of Section 57 should be resolved in a way that no one can misuse the provision of law under the pretext of curbing defamation and breach of public order done electronically.

Gazi Mizanur Rahman is a retired civil servant who previously worked in the ICT Division.

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