Role Of Digital Security Act In Regulating Cyber Offenses
1. Introduction to the Digital Security Act (DSA), 2018
The Digital Security Act (DSA), 2018 was enacted in Bangladesh to address cybercrimes, online defamation, hacking, identity theft, and threats to national security in digital platforms. Key purposes include:
Preventing cyberterrorism and hacking.
Controlling fake news, online defamation, and misinformation.
Protecting state secrets and national security.
Regulating social media and online publications for illegal content.
Controversy:
Sections of the Act (e.g., Section 21, 25, 29, 31) have been criticized for vague definitions and potential infringement on freedom of speech (Article 39).
Courts in Bangladesh have reviewed cases under DSA for balancing security and fundamental rights.
2. Case Law Examples
Case 1: Ain o Salish Kendra v. Bangladesh Government (High Court, 2019)
Facts:
Several activists challenged Section 57 of the previous ICT Act (later replaced by DSA) and Section 21 of DSA for being vague and threatening free speech.
The petition argued that these provisions allowed arbitrary arrests for online posts and violated Article 39 of the Constitution.
Issues:
Whether DSA provisions criminalizing “hurting religious sentiment” or “spreading false information” are constitutional.
Whether these provisions violate freedom of speech.
Judgment:
High Court acknowledged the need to prevent cybercrime and misinformation, but emphasized that provisions must not be overly broad or arbitrary.
The Court recommended strict procedural safeguards: complaints must be verified, and arrests without warrant should be avoided.
Impact:
Highlighted the tension between national security/cybercrime prevention and fundamental rights.
Emphasized judicial oversight in DSA prosecutions.
Case 2: Shahidul Alam v. Bangladesh Government (2020)
Facts:
Renowned photojournalist Shahidul Alam was arrested under DSA Section 21 for alleged spreading rumors on social media during protests.
Allegations included posting content that “could create public disorder.”
Issues:
Whether arrest under DSA violated right to personal liberty (Article 32) and freedom of speech (Article 39).
Whether the law was being applied arbitrarily.
Judgment:
High Court criticized the broad interpretation of DSA in the case.
Emphasized that mere criticism or expression of opinion cannot constitute a cyber offense.
Court allowed bail, stating that DSA must be applied reasonably, and arrests without sufficient cause are unconstitutional.
Impact:
Clarified that DSA should not be used to silence dissent or criticism.
Strengthened safeguards for accused persons under DSA.
Case 3: Prosecution of Fake Facebook Account User (2021)
Facts:
A person created a fake Facebook account to defame a public figure.
Arrested under DSA Sections 29 and 31 (defamation and cyber harassment).
Issues:
Whether creating a fake social media profile constitutes a cyber offense.
Whether penalties under DSA were proportionate.
Judgment:
Court held that creating a fake account with intent to defame or threaten is a cybercrime under DSA.
Conviction was upheld, highlighting that digital actions causing reputational or psychological harm are punishable.
Impact:
Reinforced DSA’s role in regulating online harassment, impersonation, and defamation.
Sent a strong deterrent message for misuse of social media.
Case 4: Cyber Fraud and Hacking Case (Bangladesh High Court, 2022)
Facts:
A group was involved in online financial fraud and hacking government websites.
Charges included unauthorized access to computer systems and data theft under DSA Sections 21 and 28.
Issues:
Whether DSA provisions adequately cover serious cyber offenses.
Whether the accused were afforded due process in investigation.
Judgment:
Court held that DSA clearly criminalizes hacking and online financial fraud.
Ordered strict investigation with technical evidence; emphasized need for judicial authorization for digital searches.
Impact:
Strengthened DSA’s enforcement framework for serious cybercrimes.
Highlighted the importance of digital forensic evidence in prosecutions.
Case 5: Social Media Misinformation During Elections (2023)
Facts:
Several individuals shared false election-related news on social media, causing panic and unrest.
Prosecuted under DSA Section 25 (spreading false information).
Issues:
Whether DSA can regulate online misinformation without violating free speech.
How to balance public interest and individual rights.
Judgment:
Court upheld the DSA provisions, noting that spreading deliberate false information that disrupts public order is punishable.
However, opinions or commentary on political matters are not offenses.
Impact:
Clarified distinction between illegal misinformation and protected expression.
Reinforced DSA as a tool to protect public order in the digital sphere.
3. Key Roles of DSA in Regulating Cyber Offenses
Cybercrime Regulation
Hacking, fraud, phishing, malware, and data breaches are criminalized under DSA.
Protection of Public Order
False information, rumors, and content threatening state security are punishable.
Combating Online Defamation and Harassment
Impersonation, fake accounts, online threats, and harassment are actionable.
Judicial Oversight and Safeguards
Courts have emphasized rebuttable procedures, fair trial, and bail rights.
Balancing Freedom of Speech and Public Interest
Criticism of government or expression of opinion is protected.
Only malicious, threatening, or false content is penalized.
Summary Table of Cases
| Case | Section/Provision | Issue | Judgment/Impact |
|---|---|---|---|
| Ain o Salish Kendra v. Bangladesh | DSA Sec 21 | Free speech vs cyber regulation | High Court emphasized safeguards, verified complaints |
| Shahidul Alam v. Bangladesh | DSA Sec 21 | Arrest for social media posts | Bail granted; DSA must be applied reasonably |
| Fake Facebook Account User | DSA Sec 29, 31 | Online defamation/impersonation | Conviction upheld; deterrent against harassment |
| Cyber Fraud & Hacking | DSA Sec 21, 28 | Hacking & financial fraud | DSA valid; emphasized digital forensic evidence |
| Election Misinformation Case | DSA Sec 25 | False news causing unrest | Upholds DSA; opinion vs misinformation clarified |
These cases demonstrate that the Digital Security Act in Bangladesh plays a key role in regulating cyber offenses, but courts are careful to ensure constitutional protections like freedom of speech, personal liberty, and due process are not violated.
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