Centre for Governance Studies, Dhaka

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The Information and Communication Technology Act of 2006: Bangladesh’s Zombie Cyber Security Law

Section 3 of 4

Legal Analysis

A. Applicable Law

This report draws upon the International Covenant on Civil and Political Rights (“ICCPR”) to which Bangladesh acceded in 2000, jurisprudence from the United Nations Human Rights Committee (“HRC”), tasked with monitoring implementation of the ICCPR, and jurisprudence from the European Court of Human Rights, which the HRC has deemed relevant for interpreting the provisions of the ICCPR.98 The report also references relevant principles of international law and English common law. Lastly, this report relies upon judgments of the Supreme Court of India, given that provisions in the Constitution of Bangladesh are analogous to provisions in the Indian Constitution and the legal systems in the two countries are likewise similar.

B. Impact of the CSA on Pending ICT Act Cases: Continuation of Cases under the ICT Act Violates the Principle of Legality

The principle of legality as enshrined in Article 15 of the International Covenant on Civil and Political Rights (“ICCPR”) and Article 7 of the European Convention on Human Rights (“ECHR”) guarantees that “no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed”99 and the penalty imposed must not exceed the limits fixed by laws in force at that time.100

The European Court of Human Rights has explained that the principle of legality not only prohibits the retroactive application of criminal law to an accused’s disadvantage but also “embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege),” which it must do clearly and precisely.101 Articles 15 and 7 thus require the existence of a legal basis in order to convict

someone of a crime, or impose a sentence.102 This principle is also reflected in the Constitution of Bangladesh103 and the Constitution of India.104

As noted above, Section 59 of the CSA contains a savings clause providing that cases initiated under the DSA should continue to be processed in accordance with the DSA. Importantly, this savings clause does not mention the ICT Act or cases instituted under that Act. Thus, after enactment of the CSA, there is no legal basis for cases under the ICT Act to proceed. As such, the continuation of these cases would violate both domestic law and international human rights standards.

Repeal of the DSA repealed the savings clause pertinent to pending ICT Act Cases

It is a settled principle of common law that repeal of a law implies “abrogation or obliteration of one statute by another, from the statute book as completely as if it had never been passed”; when an Act is repealed, “it must be considered (except as to transactions past and closed) as if it had never existed.”105

In line with this principle, the Indian Supreme Court has noted that the repeal of a criminal statute not only “destroy[s] the effectiveness of the repealed [A]ct in future, but also operate[s] to destroy all… pending proceedings. This is because the effect of repealing a statute is to obliterate it completely from the record, except to the extent of savings.”106 These findings were made in the context of the repeal of a criminal law: namely, the Prevention of Terrorism Act, 2002 by the Prevention of Terrorism (Repeal) Act, 2004.107

The Court elaborated that “continuation of proceedings in respect of any offence under an Act, after the repeal of such Act, is… a result of a deeming fiction… created by the savings clause.”108 The Court explained that savings clauses only operate to “wind-up” matters related to the repealed act, as the “[n]atural consequence of repeal, as noticed above, is complete obliteration including [of] pending proceedings.”109

Applying this principle, Section 61 of the DSA (the savings clause that saved ICT Act cases) operated to wind-up certain cases under the ICT Act, and the continuation of these cases was only possible as a result of the “deeming fiction” of this savings clause. With the repeal of the DSA by the CSA, Section 61—the savings clause—also stands repealed. Resultantly, cases under the ICT Act cannot continue, unless they stand saved by the CSA.

The CSA does not save prosecutions under the ICT Act

The CSA has a specific savings clause that saves only cases pending under the DSA and is silent on cases pending under the ICT Act. In such a scenario, the provision on “effect of repeal” in the General Clauses Act, 1897, a colonial-era law on statutory interpretation followed by both Bangladesh and India, may be relevant.

Section 6 of the General Clauses Act, saves pending proceedings under a repealed law, provided the repealing act does not have a “contrary intention.”110 Section 6 is reproduced below:

Effect of repeal –– 6. Where this Act, or any Act of Parliament or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears,111 the repeal shall not––

…..

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

The Indian Supreme Court has clarified that if a law is repealed “without making any provision for savings, the provisions contained in [S]ection 6 of the General Clauses Act, 1897 will apply. But where the repealing Act itself contains specific provisions in regard to savings, the express or special provision in the repealing Act will apply.”112 The Court has explained that when there is a specific savings clause “then a different intention is indicated”113 and “where a repeal is followed by a fresh legislation on the subject, the Court has to look to the provisions of the new Act to see whether they indicate a different intention.”114

The savings clause of the CSA does not refer to ICT Act cases—a clear indication of not intending to save them. The ‘different intention’ of the CSA is also evident in the fact that the CSA has reduced penalties two times over as compared to the ICT Act—the DSA first reduced penalties when it repealed select provisions of the ICT Act, and the CSA further reduced penalties prescribed in the DSA. As such, the General Clauses Act does not justify the continuation of cases filed under the ICT Act.

Doctrine of strict and favorable construction must be applied in case of any ambiguity

The rights guaranteed under Article 15 of the ICCPR and Article 7 of the ECHR embody, more generally, the principle that criminal law and procedures should not be construed to a criminal defendant’s disadvantage.115 As stated by the European Court, the principle of

legality extends to “the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy.”116

Article 22(2) of the Rome Statute, the treaty that established the International Criminal Court, to which Bangladesh is party, likewise provides that “[t]he definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favor of the person being investigated, prosecuted or convicted.”117

This principle of international law is also reflected in Indian law. The Indian Supreme Court has held that “the golden rule of interpretation for any penal legislation is to interpret the same strictly, unless any constitutional considerations are involved, and in cases of ambiguity, the benefit of the same should enure in favor of the accused.”118

In M. Ravindran v. Directorate of Revenue Intelligence, the Indian Supreme Court reiterated the importance of adopting the construction that protects the rights of criminal defendants. The Court held that “in case of any ambiguity in the construction of a penal statute, the courts must favor the interpretation which leans towards protecting the rights of the accused, given the ubiquitous power disparity between the individual accused and the State machinery. This is applicable not only in the case of substantive penal statutes but also in the case of procedures providing for the curtailment of the liberty of the accused.”119

Based on the above principle, Section 59 of the CSA (the savings clause) must be interpreted strictly—to only permit cases mentioned in the Section to continue. Further, any doubt in interpreting the clause and its effect on cases under the ICT Act should be resolved in favor of accused persons facing prosecutions under the ICT Act.

However, as noted above, ICT Act cases are still being pursued. In September 2023, a few days after the passage of the CSA, Adilur Rahman Khan, founder and Secretary of civil society organization Odikhar (and currently an advisor to the Interim Government), along with A.S.M. Nasiruddin Khan, Director of Odhikar, were sentenced to two years imprisonment under Section 57 in connection with “a fact-finding report they compiled 10

(May 25, 1993), para. 52; European Court of Human Rights, Coëme and Others v. Belgium, Application Nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96 (October 18, 2000), para. 145.

years ago on extrajudicial killings.”120 They were charged under Section 57 of the ICT Act exactly 10 years prior, and thereafter subject to pre-trial detention for 62 and 25 days respectively.121 They were re-arrested upon their conviction, and released on bail on orders of the High Court in October 2023 pending appeal.122 This case demonstrates that Section 57 cases can be resurrected at any time and the specter of the law looms over the persons against whom cases are still pending.

In fact, authorities under the Awami League government construed the savings clause in the DSA to save ICT Act cases pending at the investigation stage, contrary to the provision itself.123 Resultantly, ICT Act cases where the police have not yet completed their investigation still continue to be open, permitting the resurrection of these cases at any point depending on the will of the police and authorities. This includes Section 57 cases that were registered during the road safety protests in the lead up to the 2018 elections124—epitomized by the case against Shahidul Alam who continues to face an investigation under the ICT Act for merely posting a Facebook Live video and giving an interview to Al Jazeera about the protests.125

Allowing these cases, including some that were not in fact even saved by the DSA, to continue despite the DSA’s repeal by the CSA would be an implausible construction of the CSA’s savings clause, to the accused’s’ detriment. Under international law, the interim

government should do the reverse: All pending ICT Act cases under Section 57 should be terminated or withdrawn.

C. Section 57 of the ICT Act Violates the Principle of Legality

The principle of legality also requires more broadly that laws be clearly and precisely defined. The UN Human Rights Committee has noted “the requirement of both criminal liability and punishment being limited to clear and precise provisions in the law that was in place and applicable at the time.”126 Regional human rights courts have likewise emphasized that “domestic laws on which restrictions to rights and freedoms are grounded must be sufficiently clear, foreseeable”127 and that there must be “a clear definition of the criminalized conduct, establishing its elements.”128

Section 57 of the ICT Act was impermissibly vague, making it difficult for individuals to understand what speech was prohibited. Section 57 broadly criminalized the publication of “any material” which is “fake and obscene” or is deemed likely to “deprave and corrupt persons,” “deteriorate law and order,” “prejudice the image of the State or person,” or cause “hurt,” “hurt religious belief,” or “instigate against any person or organization.” However, there is no definition of or limiting principles applied to these terms, leaving their meaning uncertain. The resulting ambiguity makes the law susceptible to arbitrary interpretation or application, affording the authorities excessive discretion.

Indeed, Section 57 was used as a tool of harassment, with cases based on a wide array of social media commentary, including sharing political cartoons, reporting on garment worker protests, or making comments deemed critical of Islam.129 The Special Public Prosecutor handling the Cyber Tribunal cases reportedly admitted that 65-70% of the

cases filed under Section 57 could not be proven in court, stating “[s]ome cases are totally fabricated and are filed to harass people.”130

Laws similar to Section 57 of the ICT Act have been struck down by courts around the world, on grounds of being unconstitutional restrictions on the right to freedom of expression. In 2015, the Indian Supreme Court struck down a provision similar to Section 57 of the ICT Act, stating that the provision “takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech.”131 Similar to Section 57’s prohibition on transmitting information that is “fake and obscene,” or which is likely to “prejudice” the image of a person, or “cause hurt,” the provision struck down by the Indian Supreme Court criminalized sending “any information that is grossly offensive” or that is “know[n] to be false” and is sent for the purpose of causing inter alia “insult, injury… enmity, hatred or ill will.”132 Neither law defined any of these terms. The Indian Supreme Court held that “a penal law is void for vagueness if it fails to define the criminal offence with sufficient definiteness.”133

Similarly, the Constitutional Court of Uganda struck down a section of that country’s Computer Misuse Act criminalizing ‘offensive communication.’134 The Constitutional Court found that “Section 25 of the Computer Misuse Act No. 2 of 2011 does not specify what conduct constitutes offensive communication. To that extent it does not afford sufficient guidance for legal debate…. [I]t is vague, overly broad and ambiguous.”135 On this basis, the Court held that the law was null and void.

In Kenya, the High Court struck down a law that criminalized “send[ing] a message or other matter that is grossly offensive or of an indecent, obscene or menacing character” or “send[ing] a message that [a person] knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person.” The Court noted that “there is no definition in the Act of the words used. Thus, the question arises: what amounts to a message that is ‘grossly offensive’, ‘indecent’ ‘obscene’ or ‘menacing character’? …. Since no definition is offered in the Act, the meaning of these words is left to the subjective interpretation of the Court, which means that the words are so wide and vague that their meaning will depend on the subjective interpretation of each judicial officer seized of a matter.”136 On this basis, the Court found that the law was “so vague, broad and uncertain that individuals do not know the parameters within which their communication falls, and the provisions therefore offend against the rule requiring certainty in legislation that creates criminal offences.”137

In the United States, the Supreme Court found unconstitutionally vague a law that proscribed ‘indecent’ and ‘patently offensive’ material online, explaining that “[t]he general, undefined terms ‘indecent’ and ‘patently offensive’ cover large amounts of nonpornographic material with serious educational or other value.” The Court noted in particular the potential subjectivity of community assessments of what would meet these standards.138

Courts have also struck down ‘fake news’ laws that parallel Section 57’s proscription of “fake” material. Thus for instance in March 2024, the Constitutional Court of Indonesia struck down provisions criminalizing the dissemination of “false news or information” or “uncertain or exaggerated or incomplete information” that causes or is likely to cause “disruption among the public.”139 Similar to the Kenyan High Court in the ‘offensive communication’ case, the Constitutional Court of Indonesia relied on the fact that the absence of definition of these terms “caused a disparity of interpretation in court

use[s] electronic communication to disturb or attempt to disturb the peace, quiet or right of privacy of any person with no purpose of legitimate communication.”

proceedings,” and there would be “multiple interpretations” for whether a “situation of “disruption” was the result of a “news” being disseminated by a person.”140

Section 57 also targets speech that “causes to deteriorate or creates the possibility of to deteriorate law and order.” Such laws that ostensibly protect law and order have also been found to be impermissibly vague. When analyzing the imprisonment of a Pakistani national for allegedly facilitating incendiary speeches, the UN Working Group on Arbitrary Detention found a law in Pakistan, which prohibited the furthering of activity prejudicial to public safety or the maintenance of public order, as “extremely vague and lack[ing] the requisite degree of precision and legal certainty” such that it “le[d] to deprivation of liberty which is unreasonable or unnecessary.”141

As per the standards explained above, Section 57 itself fails to meet the requirements of the principle of legality. The use of this law to prosecute persons for their online speech therefore violates the right to freedom of expression, and all such cases ought to be withdrawn on this ground alone.

Notes

  1. See also Supreme Court of India, Ishar Das v. State of Punjab [(1973) 2 SCC 65], para. 9.
  2. For example, when interpreting the provisions of the ICCPR through its General Comments, the HRC has relied on decisions made by the European Court of Human Rights. See, e.g., UN Human Rights Committee, General Comment No. 37, U.N. Doc. CCPR/C/GC/37 (July 23, 2020), fns. 15, 18, 28, 52, 61, 65, 73-75, 99, 118, 122, 132; UN Human Rights Committee, General Comment No. 36, U.N. Doc. CCPR/C/GC/36, (September 3, 2019), fns. 5, 6, 32, 64, 86, 88, 92, 104, 126-129, 136, 164, 215, 217. ↩
  3. ICCPR, Article 15(1). ↩
  4. UN Human Rights Committee, Nicholas v. Australia, Communication No. 1080/2002 (March 19, 2004), para. 7.5; European Court of Human Rights, Del Río Prada v. Spain [GC], Application No. 42750/09 (October 21, 2013), para. 80; European Court of Human Rights, Coëme and Others v. Belgium, Applications Nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96 (October 18, 2000), para. 145. ↩
  5. European Court of Human Rights, Kokkinakis v. Greece, Application No. 14307/88 (May 25, 1993), para. 52; European Court of Human Rights, Coëme and Others v. Belgium, Application Nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96 (October 18, 2000), para. 145. 17 ↩
  6. “Guide on Article 7 of the European Convention on Human Rights”, European Court of Human Rights (December 31, 2020), para. 23, https://www.refworld.org/jurisprudence/caselawcomp/echr/2020/en/123523. ↩
  7. The Constitution of the People’s Republic of Bangladesh (1972), http://bdlaws.minlaw.gov.bd/act-details-367.html. Article 31 of the Bangladesh Constitution states that no action detrimental to the life or liberty of a person shall be taken except in accordance with law. Article 35 of the Bangladesh Constitution states that a person can only be convicted for an act that constituted an offense at the time of its commission and that no person can be subjected to a penalty greater than that provided for by the law in force at the time of commission of the offense. ↩
  8. The Constitution of India (1950), https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf. The guarantee in Article 35 of the Bangladesh Constitution is also provided in Article 20(1) of the Indian Constitution; similar to Article 31 of the Bangladesh Constitution, Article 21 of the Indian Constitution states that no person can be deprived of his life or liberty except according to procedure established by law. ↩
  9. Per Tindal, C.J., in Kay v. Goodwin [(1830) 6 Bing 576, 582] and Lord Tenterdon in Surtees v. Ellison [(1829) 9 B & C 750, 752] cited with approval in Supreme Court of India, State of Orissa v. M.A. Tulloch & Co. [ (1964) 4 SCR 561], para 19. ↩
  10. Supreme Court of India, Mahmadhusen Abdulrahim Kalota Shaikh (2) v. Union of India [(2009) 2 SCC 1], para. 36. ↩
  11. Id. at para. 13. 18 ↩
  12. Id. at para. 37. ↩
  13. Id. ↩
  14. Section 6 of the General Clauses Act was modeled after Section 38(2) of the Interpretation Act of 1889 in England. As noted above, the general rule in common law is that repeal of a law destroys any pending proceedings under the repealed law. To dispense with the necessity of inserting a savings clause in every law, Section 38(2) was inserted in the Interpretation Act of 1889 in England, providing that “a repeal, unless the contrary intention appears, does not affect the previous operation of the repealed enactment or anything duly done or suffered under it and any investigation, legal proceeding or remedy may be instituted, continued or enforced in respect of any right, liability and penalty under the repealed Act as if the Repealing Act had not been passed.” See Supreme Court of India, State of Punjab v. Mohar Singh [(1955) 1 SCR 893]. ↩
  15. Emphasis added. 19 ↩
  16. Supreme Court of India, Mahmadhusen Abdulrahim Kalota Shaikh (2) v. Union of India [(2009) 2 SCC 1], para. 34(f) (emphasis added). ↩
  17. Supreme Court of India, Qudrat Ullah v. Municipal Board [(1974) 1 SCC 202], para.18. ↩
  18. Id. ↩
  19. European Court of Human Rights, Vasiliauskas v. Lithuania [GC], Application No. 35343/05 (October 20, 2015), para. 154; European Court of Human Rights, Kokkinakis v. Greece, Application No. 14307/88 20 ↩
  20. European Court of Human Rights, Coëme and Others v. Belgium, Application Nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96 (October 18, 2000), para. 145. ↩
  21. Rome Statute of the International Criminal Court (1998), Article 22(2). See also International Criminal Court, The Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15 (December 9, 2019), para. 23. ↩
  22. Supreme Court of India, State of Gujarat v. Mansukhbhai Kanjibhai Shah [(2020) 20 SCC 360], para. ↩
  23. Supreme Court of India, M. Ravindran v. Directorate of Revenue Intelligence [(2021) 2 SCC 485], para. 17.9. 21 ↩
  24. “Bangladesh court jails prominent rights activists for two years”, Al Jazeera (September 14, 2023), https://www.aljazeera.com/news/2023/9/14/bangladesh-court-jails-prominent-rights-activists-for-twoyears. ↩
  25. “Bangladesh: Upcoming verdict in the case of Adilur Khan and ASM Nariruddin Elam”, International Federation for Human Rights, (August 29, 2023), https://www.fidh.org/en/issues/human-rightsdefenders/bangladesh-upcoming-verdict-in-the-case-of-adilur-khan-and-asm. ↩
  26. “Top Bangladesh Rights Activists Released on Bail, VOA, (October 16, 2023), https://www.voanews.com/a/top-bangladesh-rights-activists-released-on-bail-/7313942.html. ↩
  27. According to the savings clause of the DSA, cases under the repealed provisions of the ICT Act could only continue if at the time of repeal proceedings had been initiated before a relevant court or the court had taken cognizance (judicial notice) of the offense. The stage of cognizance or initiation before the Tribunal commences after the police have concluded their investigation and have submitted the final report of an investigation/a charge sheet before the Tribunal. Therefore, cases where the investigation was pending were not saved by the DSA. See TrialWatch Fairness Report, Bangladesh v. Shahidul Alam, Clooney Foundation for Justice (January 2023), https://cfj.org/wp-content/uploads/2023/07/Shahidul-Alam-Fairness-Report_January-2023.pdf. ↩
  28. “Journalists, activists in Bangladesh arrested under ICT Act for posting on social media”, AccessNow (August 10, 2023), https://www.accessnow.org/press-release/bangladesh-ict-act/; “IFJ Press Freedom Report 2018-2019: Bangladesh”, International Commission of Jurists (2019), https://www.ifj.org/fileadmin/user_upload/IFJ_SAPFR_-_BANGLADESH.pdf. ↩
  29. “Photojournalist in Bangladesh Facing 14 Years for Charges Under a Law That No Longer Exists”, Clooney Foundation for Justice (January 30, 2023), https://cfj.org/news/photojournalist-in-bangladeshfacing-14-years-for-charges-under-a-law-that-no-longer-exists. 22 ↩
  30. UN Human Rights Committee, General Comment No. 29: States of Emergency (Article 4), CCPR/C/21/Rev.1/Add.11 (Aug. 31, 2001), para. 7; see also UN Human Rights Committee, General Comment No. 35: Article 9 (Liberty and Security of Person), CCPR/C/GC/35, (Dec. 16, 2014), para. 22. ↩
  31. The African Court on Human and Peoples’ Rights has also emphasized that “domestic laws on which restrictions to rights and freedoms are grounded must be sufficiently clear, foreseeable.” African Court on Human and Peoples’ Rights, Ingabire Victoire Umuhoza v. Republic of Rwanda, Judgment (Nov. 24, 2017), para. 136. The East African Court of Justice has echoed this holding, stating that criminal laws must “be clear, and accessible to citizens so that they are clear on what is prohibited.” East African Court of Justice, Media Council of Tanzania v. The Attorney General of the United Republic of Tanzania, EACJ Reference No. 2 of 2017 (Mar. 28, 2019), para. 60. ↩
  32. Inter-American Court of Human Rights, Castillo Petruzzi et al. v. Peru, Series C, No. 52 (May 30, 1999), para. 121. And the Caribbean Court of Justice has indicated that “[a] penal statute must meet certain minimum objectives if it is to pass muster as a valid law. It must provide fair notice to citizens of the prohibited conduct.” Caribbean Court of Justice, Quincy McEwan et al. v. The Attorney General of Guyana, [2018] CCJ 30 (AJ), para. 80. See also European Court of Human Rights, Kokkinakis v. Greece, App. No.14307/88 (May 25,1993), para. 52. ↩
  33. HRW, No Place for Criticism. 23 130“Two-thirds of cases filed under Sec 57 do not see the light of day”, Dhaka Tribune, (Sept. 22, 2017), https://www.dhakatribune.com/bangladesh/laws-rights/126258/two-thirds-of-cases-filed-under-sec-57-donot-see. ↩
  34. Supreme Court of India, Shreya Singhal v. Union of India [(2015) 5 SCC 1], para. 94. ↩
  35. Section 66-A of the Information Technology Act, 2000 stated: “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 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.” ↩
  36. Supreme Court of India, Shreya Singhal v. Union of India [(2015) 5 SCC 1], para. 59. ↩
  37. TrialWatch also monitored a case under this law, identifying its vagueness and subjectivity at the time. See Staff at the American Bar Association Center for Human Rights, TrialWatch Fairness Report, Uganda v. Stella Nyanzi, (February 2020), https://www.americanbar.org/content/dam/aba/administrative/human_rights/fairnessreport-uganda-stellanyanzi.pdf. ↩
  38. Constitutional Court of Uganda, Karamagi et al. v. Attorney General, Judgment, Constitutional Petition No. 5 of 2016. Section 25 of the Computer Misuse Act criminalized whoever “willfully and repeatedly 24 ↩
  39. High Court of Kenya at Nairobi, Andare v. Attorney General et al., Judgment (Apr. 19. 2016), para 77. ↩
  40. Id., para 78. ↩
  41. United States Supreme Court, Reno v. ACLU, 521 U.S. 844 (1997) ↩
  42. Articles 14 and 15 of Law No. 1/1946. Article 14 stated: “(1) Any person who, by way of disseminating false news or information, intentionally cause disruption among the public shall be punishable by a maximum prison sentence of ten years. (2) Any person disseminating news or issuing information that may cause disruption among the public, while such person ought to expect that such news or information is false, is punishable by a maximum prison sentence of three years.” Article 15 stated: “Any person disseminating uncertain or exaggerated or incomplete information, while such person understands [or] should at the least expect that such information would or can easily cause disruption among the public, is punishable by a maximum prison sentence of two years.” 25 ↩
  43. Constitutional Court of the Republic of Indonesia, Decision No. 78/PUU-XXI/2023 (March 6, 2024), para. 3.18. ↩
  44. UN Working Group on Arbitrary Detention, Hassan Zafar Arif v. Pakistan, Opinion No. 8/2017, UN Doc. A/HRC/WGAD/2017/8 (June 2, 2017), paras. 8-11, 36, 38. 26 ↩