Executive Summary

Since 2006, journalists, human rights defenders, and activists in Bangladesh have increasingly been targeted under a succession of cybersecurity laws: In 2018, the Digital Security Act (“DSA”) replaced certain provisions of the Information and Communication Technology Act of 2006 (“ICT Act”) and in 2023 the Cyber Security Act (“CSA”) replaced the DSA. Each of these laws have been criticized for restricting freedom of expression online. With the recent political transition in Bangladesh, the time is right for a review of these laws, an undertaking the interim government has appeared to embrace. This whitepaper, which focuses on the oldest of these laws, the ICT Act, is the first in a series: a forthcoming report will also provide an in-depth analysis of the DSA and its use against journalists.

During both the transitions (from the ICT Act to the DSA and the DSA to the CSA), cases pending under the previous law continued, despite its repeal. This whitepaper focuses on the current legal status of cases registered under the repealed provisions of the ICT Act, and analyses how the continuation of such cases is inconsistent with Bangladesh’s obligations under international human rights treaties to which it is a party.

The continuation of such cases violates the principle of legality, which requires that any conviction must have a legal basis. With the repeal of the DSA by the CSA, there is no legal provision that “saves” pending proceedings under the ICT Act. Bangladesh is also obligated to implement changes in laws (whether arising from amendment or repeal) in a manner that protects the rights of accused persons in ongoing cases. In particular, the government must ensure that “savings clauses” (clauses that allow cases under a repealed law to continue) are applied narrowly. This means that all cases brought under the repealed provisions of the ICT Act, which were saved by the DSA but not saved by the CSA, should be terminated.

And yet proceedings under the ICT Act continue unabated: Indeed, a substantial number of cases filed under the ICT Act are still unresolved.¹ As such, accused persons in these cases continue to face criminal proceedings devoid of legal basis, and risk pretrial detention and more severe imprisonment than is permitted under even the current (still problematic) cyber security law. The recent announcement by the interim government of Bangladesh to withdraw all “speech offence”-related cases under all three cyber security laws is a step in the right direction.²