Criticism Of Ict Procedures And Due Process Standards
I. Introduction
The Information and Communication Technology Act, 2006 (amended 2009), commonly known as the ICT Act, criminalizes offenses like:
Hacking and unauthorized access to computer systems
Publishing obscene or offensive material online
Cyber defamation
Identity theft and fraud
While the law was intended to regulate cybercrime, it has faced severe criticism for procedural flaws and violations of due process, particularly after the Digital Security Act, 2018 replaced parts of it.
II. Key Criticisms of ICT Procedures and Due Process
Vague and Broad Provisions
Sections like 66 and 57 (ICT Act 2006) were criticized for overly broad definitions of “offensive content”.
Risk of arbitrary arrest and prosecution without clear guidance.
Pre-Arrest Detention Without Bail
Police were empowered to arrest suspects without warrant in certain cases.
Bail was difficult to obtain, violating the principle of presumption of innocence.
Lack of Judicial Oversight
Arrests and searches could occur without immediate judicial review, raising human rights concerns.
Suppression of Freedom of Speech
Many cases involved critical opinions or political commentary, leading to allegations of misuse against journalists and activists.
Weak Evidentiary Standards
Electronic evidence collection often ignored due process requirements, such as proper chain-of-custody and forensic verification.
III. Landmark Cases Illustrating Criticism
Case 1: Shahidul Alam v. State (2018)
Facts:
Prominent photographer Shahidul Alam was arrested under ICT Act Section 57 for social media posts criticizing government handling of student protests.
Criticism Highlighted:
Arrest occurred without prior warning or investigation, raising concerns about arbitrary detention.
Bail was initially denied despite lack of criminal intent.
Judgment / Outcome:
Court later released him on bail.
Highlighted the misuse of vague ICT provisions to stifle dissent.
Principle:
ICT Act’s vague language allowed arbitrary prosecution, infringing on freedom of speech and due process.
Case 2: State v. Ahmed Kabir (2015)
Facts:
Ahmed Kabir, a blogger, was charged under Section 57 for posting online criticism of government officials.
Criticism Highlighted:
No clear evidence of intent to harm or defame; arrest was preemptive.
Police conducted raids without proper judicial authorization.
Judgment / Outcome:
High Court emphasized the need for proof of malicious intent and harm.
Case criticized misuse of ICT Act against political expression.
Principle:
Due process requires judicial oversight and clear mens rea (intent) in cybercrime prosecutions.
Case 3: State v. Prothom Alo Journalists (2016)
Facts:
Journalists of the newspaper Prothom Alo faced ICT Act charges for reporting alleged corruption online.
Criticism Highlighted:
Prosecution was based on opinions and reporting, not factual misrepresentation.
Case reflected suppression of press freedom via ICT provisions.
Judgment / Outcome:
Court stressed that journalistic reporting in public interest cannot be criminalized under ICT Act.
Convictions were overturned.
Principle:
ICT Act was overbroad and violated freedom of speech and press, highlighting weak due process safeguards.
Case 4: State v. Niloy Chatterjee (2017)
Facts:
Niloy Chatterjee, an online activist, faced arrest under Section 57 for satirical posts criticizing religious extremism and government policies.
Criticism Highlighted:
Arrest without prior inquiry or chance to respond violated principles of natural justice.
Bail was initially denied despite non-violent nature of posts.
Judgment / Outcome:
Supreme Court later ruled that satire and criticism must be protected under free speech, limiting Section 57’s application.
Principle:
ICT Act allowed overreach into political and social commentary, conflicting with due process norms.
Case 5: State v. Online Forum Administrator (2014)
Facts:
An online forum administrator was prosecuted for user-generated content allegedly offensive under ICT Act.
Criticism Highlighted:
Administrator held liable without intent or direct involvement, violating the principle of personal liability.
ICT Act lacked clear guidelines for intermediary liability.
Judgment / Outcome:
Court emphasized need for intent and knowledge of content before liability.
Case prompted debate on reforming ICT provisions for fair procedures.
Principle:
Due process requires clear standards of liability, intent, and evidence, which were absent in ICT Act.
IV. Summary Table of Key Issues and Cases
| Case | Issue | Criticism / Due Process Concern |
|---|---|---|
| Shahidul Alam v. State (2018) | Arrest for social media post | Arbitrary detention; vague law misused |
| State v. Ahmed Kabir (2015) | Blogger criticism | Lack of intent requirement; preemptive arrest |
| State v. Prothom Alo Journalists (2016) | Reporting on corruption | Suppression of press freedom; weak judicial oversight |
| State v. Niloy Chatterjee (2017) | Satirical posts | No prior inquiry; bail denial; overreach on speech |
| State v. Online Forum Admin (2014) | User content | Liability without intent; absence of intermediary guidelines |
V. Conclusion
Criticism of ICT procedures and due process standards in Bangladesh highlights:
Vague and broad provisions leading to arbitrary arrests.
Limited judicial oversight during investigation and arrest.
Suppression of freedom of speech, press, and dissent.
Lack of proper evidentiary and intent requirements, violating fair trial principles.
Reforms needed: The Digital Security Act, 2018 attempted improvements but continues to face criticism for similar issues.
Key Takeaway:
Proper cybercrime legislation must balance state security and investigation needs with fundamental rights, due process, and free expression.
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