Statute Review with Recommendations and Criticisms: Information and Communication Technology Act, 2006

- Md. Tajul Islam

cybercrime

Published On - February 4, 2017 [Vol. 6, Jan - Jun, 2017]

Executive summary:

Enactment of ICT Act, 2006 was undoubtedly a historic step towards digitizing world. It provides legal recognition and security of ICT but several provisions of this law are too vague or unnecessarily criminalize legitimate expression. The same is true of provisions granting investigatory powers to the authorities or imposing obligations on service providers for the purposes of assisting the investigation of cybercrimes. Procedural or public interest safeguards are also missing. We therefore recommend that a number of provisions must be either repealed or substantially reviewed to be compatible with international standards in this area.

Introduction:

Using computer and information technology to commit crime, popularly known as Cybercrime, is a fast-growing area of criminal activities. More and more criminals are exploiting the speed, convenience and anonymity of the Internet to commit a diverse range of criminal activities that know no borders, either physically or virtually. In the past, cybercrime was committed mainly by individuals or small groups. Today, we are seeing criminal organizations working with criminal-minded technology professionals to commit cybercrime, often to fund other illegal activities. Highly complex, these cybercriminal networks bring together individuals from across the globe in real time to commit crimes on an unprecedented scale.

As a fast-growing user of ICT, Bangladesh has always been under the risk of being the victim of this new generation of crime. So, it became necessary to provide legal recognition and security of Information & Communication Technology and prepare rules to regulate the use of ICT. In this backdrop Tottho O Jogajog Projukti Ain, 2006 (Information and Communication Technology Act, 2006)  was enacted which got its parliamentary approval on 8 October, 2006. There have been three amendments to the Information and Communication Technology Act, 2006 namely ICT ACT 2008 (amendment), ICT ACT 2009 (amendment) and ICT Act 2013 (amendment).

Objectives of ICT Act:

The Act was enacted for two objectives as stated in the preamble: to provide legal recognition and security of Information and Communication Technology and to prepare rules of relevant subjects. The purpose of this Act is to guarantee the legal security of documentary communications between persons, partnerships and the States, regardless of the medium used; the consistency of legal rules and their application to documentary communications using media based on information technology, whether electronic, magnetic, optical, wireless or other, or based on a combination of technologies; the functional equivalence and legal value of documents, regardless of the medium used, and the interchangeability of media and technologies; the linking of a person, a partnership or the State with a technology-based document, by allowing them to be identified by certification; and for the harmonization of the technical systems, norms and standards involved by means of technology-based documents and interoperability between different media and information technologies.

ICT Act, 2006 at a Glance:

1. There are 90 sections in this Act.

2. The Act is divided into 9 chapters.

3. In the first chapter it contains its name, different definitions used here, domination of this Act and inter-state applicability of the Act. (Sections 1 to 4)

4. The second chapter contains elaborate provisions related to digital signature and electronic records. (Sections 5 to 12)

5. Chapter three deals with provisions related to attribution, acknowledgement and dispatch of electronic records. (Sections 13 to 15)

6. The Act has described on secure electronic records and digital signatures in its chapter four. (Sections 16 to 17)

7. The powers and appointment of Controller a nd Certificate Authorities are enumerated in chapter five. (Sections 18 to 40)

8. We will find duties of the subscribers in chapter six. (Sections 41 to 44)

9. The chapter seven prescribes the provisions related to breach of rules, how to prevent this and what would be the penalties for this. (Sections 45 to 53)

10. The main heading of chapter eight is offences, investigation, adjudication and penaltologyies etc. where there are 3 parts; first part is of offences and penalties (Sections 54 to 67) and the second part is for establishment of Cyber Tribunal and its procedure, investigation of offences and provisions of bails, adjudication and appeal against the Tribunal (Sections 68 to 81) and the third part facilitates the establishment of Cyber Appellate Tribunal and its powers and functions (Sections 82 to 84) and

11. The last chapter deals with miscellaneous matters including power of the Government to make rules to the Act.

12. Where any law provides whatever anything it contained, the rules of this Act shall be in force. (Section 3)

Other salient Features of the Act:

The validity of the Digital Certificates is apportioned by this law. The Rules under the Act pertaining to Certifying Authorities have been framed and are known as “Information Technology Certifying Authorities) Rules, 2010″. The ICT law provides legal recognition to electronic documents and a framework to support e-filing, e-commerce & m-commerce transactions and also provides a legal framework to mitigate as well as check cyber-crimes.

Inter-state application of the Act: Section 4 of the Act speaks that- if any person commits offence or contravention under this Act outside of Bangladesh which is punishable under this Act then this Act shall apply as such he commits offence or contravention in Bangladesh. If he commits an offence in Bangladesh under this Act from outside Bangladesh using a computer, computer system or computer network located in Bangladesh, then this Act shall apply as such the entire process of the offence or contravention took place in Bangladesh. If any person from within Bangladesh commits offence or contravention outside of Bangladesh under this Act, then this Act shall apply against him as such the entire process of the offence or contravention took place in Bangladesh.

Cyber Tribunal

According to section 68 of the Information and Communication Technology Act, 2006 for the speedy and effective disposal of cases under this Act, Government shall establish one or more cyber tribunal. The tribunal shall try only the offences under this Act and the Government shall determine the local jurisdiction of the tribunal. In consultation with the Supreme Court, Government shall appoint one Sessions Judge or Additional Sessions Judge as a judge of Cyber Tribunal.

Cyber tribunal shall take a case 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 this Act or by any other person authorized by the controller.

The trial procedure of cyber tribunal shall follow chapter 23 of Criminal Procedure Code, 1898 (trial procedure by the Court of sessions) so far it is consistent. If the accused is absconded, tribunal can try the case in absentia. In this case tribunal has to circular an order in two Bangla newspaper to appear the accused on a specified date. Cyber tribunal shall apply the provisions of Criminal Procedure Code and it shall have the same power, a Sessions Court empowered to apply in its original jurisdiction. Public prosecutor shall conduct the case on behalf of the Government.

Tribunal shall conclude the trial within six months from the date of framing charge. This period may be extended for three months. Tribunal shall pronounce its judgment within ten days after the conclusion of trial which may be deferred for ten days.

Cyber Appellate Tribunal

The Government shall establish one or more cyber appellate tribunal. The appellate tribunal shall be constituted by one chairman and two members appointed by the Government. To be appointed as a chairman of Cyber Appellate Tribunal, he must be either a former judge of the Supreme Court or existing judge of the Supreme Court or is eligible to be appointed as a judge of the Supreme Court. One of the two members of the tribunal shall be a retired District Judge or employed in the judicial service and the other member must be an experienced and skilled person in information and communication technology. They shall be appointed for 3-5years.

Cyber appellate tribunal shall have no original jurisdiction. It shall only hear and dispose of appeals from the order and judgement of the Cyber Tribunal and Sessions Court in appropriate cases. The decision of the appellate tribunal shall be final and it shall have the power to alter, amend, and annul the order and judgement of the cyber tribunal. The appellate tribunal shall follow the appellate procedure of High Court Division of the Supreme Court. Until cyber appellate tribunal is established, appeal may be heard by the High Court Division.
Rules regarding to investigation and bail

According to section 76 of the Act,  controller, or any person authorized by the controller or by any police officer not below the rank of Sub-Inspector of the Police shall investigate any offence committed under this Act. Offence committed under sections 54, 56, 57 and 61 shall be cognizable and non-bailable offences and offences under sections 55, 58, 59, 60, 62 to 65 shall be non-cognizable and bailable.

 Section 71 of ICT Act says that the Judge of Cyber Tribunal shall not grant bail to any person accused in committing crime under this Act, which is punishable, unless–

1. Hearing opportunity is given to the Government;

2. The Judge is satisfied that,

(a) There is reasonable cause to believe that the accused person may not be proved guilty in the trial;

(b) The offence is not severe in relative term and the punishment.

Positive Aspects of ICT Act:

The ICT Act should be commended for the following reasons:

1. Eliminates barriers to e-commerce by eliminating legal discrimination between paper based and electronic records. It also facilitates to e-commerce by removing uncertainties over writing and signature.

2. Promotes legal and business infrastructures to secure e-transactions.

3.Facilitates electronic filing in government agencies and ensures efficient delivery of electronic records from government offices.

4. Helps maintain the latest technology by freeing it from nuisance as punitive provisions have been incorporated to prevent publishing obscene or defamatory information in electronic form.

5. Recognizes levels and degrees and offences by first and subsequent offender and harsh punitive measures.

6. Powers of Police Officers and other officers.

7. Establishment of Cyber Appellate Tribunal.

8. Facilitates electronic communications by means of reliable electronic records.

9. Minimizes incidence of cybercrimes, forged electronic records, alteration of records, fraud electronic transactions.

Shortcomings of ICT Act:

A number of shortcomings are identified by the experts and researchers. The most notable weaknesses of this Act are:

1. Online privacy is not protected. Section 54 (penalty for damage to computer or computer system) and 63 (breach of confidentiality or privacy) deals with it to some extent but does not obstruct the violations caused in the cyberspace.

2. The Internet Service Providers (ISP) who transmit third party information without human intervention are not made liable under this Act.

3. One can easily take shelter under the exemption clause, if he proves that it was committed without his knowledge or he exercised due diligence to prevent the offence. It’s hard to prove the commission of an offence as the terms “due diligence” and “lack of knowledge” have not been defined anywhere in the Act.

4. The Act does not mention how the extra territoriality would be enforced. This aspect is completely ignored by the Act, where it had come into existence to look into cyber crimes which is on the face of it an international problem with no territorial boundaries.

5. It does not implement the UNCITRAL Model Law in its fullest and widest extent.

6. The incorporation of the different cyber crimes are very parochial and scattered.

7. The investigation process under this Act is very complicated.

8. By the amendment of ICT Act,2006 in 2013, police have been given power to arrest without warrant. Police can misuse this power. Making offences mentioned under ICT Act, 2006 cognizable may increase harassment to the general internet users and arbitrary arrest by police. As a result people can become victims of arbitrary arrest.

9. Although the legitimate purpose of vesting police the power of arrest without warrant is to control and penalize cyber criminals, there exists an opportunity of using it as a political weapon. If it is used as so, the fundamental rights particularly the freedom of speech guaranteed in the constitution may be violated.

10. Though ICT Act mentions the establishment of cyber Tribunal, only few court have been established. As a result, it cannot provide adequate justice for the victims of cyber crimes.

11. Police are not trained adequate to investigate such crimes and collect evidence. As a result, it is difficult to find and arrest real criminals. Cyber Crime and the Impact of the ICT Act, 2006.

12. There is no digital forensic laboratory in our country for investigation and detection of cyber crime and criminals.

Recommendations

After analysis of the ICT Act, 2006 we have made a number of recommendations and we hope that the purpose of the Act would be served effectively if the following recommendations are taken into consideration:

1. Section 57 of the amended ICT ordinance 2013 which empowers law enforcers to arrest any person without any warrant and increasing the highest punishment for violation of law to 14 years have to be used cautiously.

2. Government has to establish one digital forensic laboratory in our country for investigation and detection of cyber crime.

3. A well trained Cyber police force is needed in order to detect cyber criminal.

4. Adequate cyber Tribunals at least in every Division are to be established to trial cyber criminals.

5. Government must adopt a check and balance principle between police power of arrest without warrant and citizen’s protection against arbitrary arrest and detention guaranteed in article-33 of the constitution.

6. Judges as well as the lawyers should be trained and made expert in technological knowledge for ensuring the justice of technological disputes. In case of Cyber Appellate Tribunal the judges have the opportunity to be assisted by the ICT expert. But is it possible to give the verdict on the basis of another’s knowledge? The reality in our country is that so far no initiative is taken by the government to train up the judges for acquiring the minimum technological knowledge required for ensuring justice.

Conclusion

The network context of Cyber crime makes it one of the most globalized offences of the present and the most modernized threats of the future. Capacity of human minds is immeasurable. It is not possible to eliminate cyber crime from the cyber space. It is quite possible to check them. History is the witness that no legislation has succeeded in totally eliminating crime from the globe. The only possible step is to make people aware of their rights and duties and further making the application of the laws more stringent to check crime. Undoubtedly the ICT Act is a historical step in the cyber world. Further it cannot be denied that there is a need to bring changes in the Information Technology Act to make it more effective to combat cyber crime. With the coming into force of ICT Act, 2006, it become necessary to introduce certain consequential change in certain provisions of the Penal Code, 1860 as also in the Evidence Act, 1872, in order to meet the new requirements of the cyber space crimes. However, The ICT Act, 2006 is one of the vital steps that Bangladesh has taken to prevent cyber crimes from the cyber space.

Reference:

  1. Totho O Jogajog Projukti Ain, 2006.
  2. Bangladesh: Analysis of Information Communication Technology Act, Article 19, April 2016.
  3. Kader M and Totho Hossain M., Criminology, Dhaka 2008.
  4. Ashiquddin M. Maruf et al., Emerging Cyber Threats in Bangladesh: Inquest of Legal Remedies, Northern University Journal, 2010.
  5. Briefing paper on the amendments to the Bangladesh Information and Communication Technology Act, ICJ, 2013.

About The Writer

Article Author Image

Md. Tajul Islam

Joint District Judge, Thakurgaon

Bangladesh

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