The Bangladesh Telecommunication Regulatory Commission (BTRC) on February 3 published draft rules to govern digital, social media, and OTT platforms operating in the country. These rules are modelled after India’s Information Technology (IT) Rules, 2021, which went into effect from February 2021.
Definition of intermediary
Bangladesh’s rules define an intermediary as “any person who on behalf of another person receives stores or transmits electronic records or provides any service with respect to such records and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online auction sites, online market places and cyber cafes.” There is no definition for social media intermediary, but the rules nevertheless refer to social media intermediaries throughout. These draft rules also don’t define significant social media intermediary, but another version in Bengali published by the Ministry of Information and Broadcasting, which pertains to OTT regulation, defines them as an intermediary with more than 1 million registered users.
India’s IT Rules: India’s IT Act, 2000, also defines an intermediary as above, but the IT Rules go further and define two sub-categories:
- Social media intermediary, which is defined as an intermediary that “primary or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services”
- Significant social media intermediary, which is a social media intermediary whose number of registered users in India is more than 50 lakhs.
Terms of service of intermediaries
Bangladesh’s rules require intermediaries, including social media intermediaries, to:
- Terms of service should inform users what is not allowed: Inform the user not to host, display, upload, modify, publish, transmit, store, update or share any information that:
- belongs to another person and to which the user does not have any right
- is defamatory, obscene, pornographic, invasive of another’s privacy, including bodily privacy, insulting or harassing on the basis of gender, libellous, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or otherwise inconsistent with or contrary to the laws in force
- is harmful to child
- threatens the unity, integrity, defence, security or sovereignty of Bangladesh, friendly relations with foreign States, or public order, or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting other nation
- is against the liberation war of Bangladesh, spirit of liberation war, father of the nation, national anthem, or national flag
- is offensive, false or threatening and insulting or humiliating to a person
- hurts religious values or sentiment
- creates enmity, hatred, or hostility among different classes or communities of the society or destroys communal harmony or creates unrest or disorder or deteriorates or advances to deteriorate the law and order situation
- contains software virus or any other computer code, file or program infringes any patent trademark, copyright or other proprietary rights
- violates any law for the time being in force
- deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any information which is patently false or misleading in nature but may reasonably be perceived as a fact
- impersonates another person
- designed to interrupt, destroy or limit the functionality of any computer resource;
- breaches secrecy of the government
- is patently false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person
- Non-compliance notice: Periodically inform users, at least once every year, that in case of non-compliance, the platform has the right to terminate the access or usage rights of the users or remove non-compliant information or both.
India’s IT Rules: The due diligence prescribed by the IT Rules when it comes to terms of service is word-for-word for most of the above provisions. The only notable exception is that Bangladesh’s rules disallow content that is “against the liberation war of Bangladesh, spirit of liberation war, father of the nation, national anthem, or national flag.”
Enabling traceability of the first sender of a message
Bangladesh’s rules require social media intermediaries providing services primarily in the nature of messaging to enable the identification of the first originator of the information if requested by a court order or an order by the Bangladesh Telecommunication Regulatory Commission. The intermediaries do not have to disclose messages or any other information about the originator or other users.
Such order may be passed for prevention, detection, investigation, prosecution or punishment of an offence related to the sovereignty and integrity of Bangladesh, the security of the State, friendly relations with foreign States, or public order, or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material. If less intrusive means of identifying the originator is possible, such order will not be passed.
India’s IT Rules: Bangladesh’s rules takes after India’s infamous traceability mandate and applies it to all messaging apps rather than just the ones that are significant social media intermediaries. India’s version has been challenged in court by WhatsApp which has argued that this provision will break end-to-end encryption and harm privacy and freedom of expression.
Using automated tools to remove illegal content
Bangladesh’s rules encourage intermediaries to deploy technology-based measures, including automated tools to proactively identify and block information that depicts illegal content like rape or child sexual abuse, as well as content that has previously been removed. These automated measures, however, must have regard to the interests of free speech and expression and privacy of users, and should have appropriate human oversight along with periodic reviews for bias.
India’s IT Rules: India’s version prescribes the same except that it is only applicable to significant social media intermediaries. This provision has come under fire because it can be misused by the government for censorship as the government can ask intermediates to use automated tools to proactively remove content that is critical of the government.
Content takedown orders
- Who can issue content takedown orders: Intermediaries must remove content that is unlawful if they receive an order by a court of competent jurisdiction or on being notified by BTRC or an authorised government agency.
- On what grounds: Unlawful information can be in relation to the interest of the sovereignty and integrity of Bangladesh; security of the State; friendly relations with foreign States; public order; decency or morality; relation to contempt of court; defamation; incitement to an offence relating to the above, or any information which is prohibited under any law for the time being in force.
- Timeline: The content needs to be removed within 72 hours of notice.
- Emergency takedown requests: The Bangladesh government call also issue emergency content blocking and takedown orders for content within the grounds referred to in Article 141A of the Constitution of the Peoples Republic of Bangladesh before giving the intermediary an opportunity for a hearing.
India’s IT Rules: India’s IT Rules have the same provisions except that the content must be removed in within 36 hours (half the time) from receiving an order.
Grievance redressal mechanism
- Appointment of Resident Complaint Officer (RCO): Intermediaries must visibly publish contact details of the Resident Complaint Officer on their website or mobile app or both.
- Details for complaint filing: Intermediaries must also provide a mechanism by which a person may make a complaint against violation of the provisions of the Regulations.
- Timeline: The RCO must acknowledge the complaint within 24 hours and dispose of the complaint within a period of 20 days.
- Complaints pertaining to sensitive content: If any individual or someone on their behalf files a complaint about material that shows the individual in partial or full nudity or shows or depicts such individual in any sexual act or conduct or has artificially morphed images of such individual, the intermediary should take all reasonable and practicable measures to remove or disable access to the content in 72 hours from the receipt of a complaint.
- Acknowledge court and government orders: The RCO receive and acknowledge any order, notice or direction issued by the government or court.
- Disclosure of complaints: Intermediaries must make timely disclosures of all complaints received and action taken thereon. The rules don’t provide a specific period.
India’s IT Rules: India’s Rules refer to the RCO as the Resident Grievance Officer and provide them only 15 days to dispose of the complaint compared to the 20 days in Bangladesh’s version. The intermediary also has only 24 hours to remove sensitive content. India’s rules also require significant social media intermediaries to publish periodic compliance reports every month.
Appoint key managerial positions
- Appoint a Compliance Officer: The Compliance Officer is responsible for ensuring compliance with the rules and shall be liable in any proceedings where the intermediary fails to ensure due diligence. The intermediary, however, will be given an opportunity of being heard before any liability is imposed. The Compliance Officer needs to be a senior employee of the intermediary who is resident in Bangladesh
- Appoint a 24 x 7 agent: The agent will be responsible for coordination with law enforcement agencies and the Bangladesh Telecommunication Regulatory Commission (Digital Security Cell) to ensure compliance with their orders or requisitions. The agent has to be an employee other than the Compliance Officer, who is resident in Bangladesh.
India’s IT Rules: While India’s rules also require the appointment of a Chief Compliance Officer and a 24 x 7 nodal contact person, these requirements are only for significant social media intermediaries. Bangladesh’s regulation does not differentiate between social media intermediaries and significant social media intermediaries, hence these appointments are required for all intermediaries.
Rules around information preservation
Bangladesh’s rules require intermediaries to preserve information on content that was removed due to users violating terms of service, government or court order, or based on grievance received for a period of 180 days. Information about a user must also be maintained for 180 days after the user has cancelled their registration.
India’s IT Rules: India has the same timelines.
Handling cybersecurity incidents
- All reasonable cyber security practices must be taken: The intermediary should take all reasonable measures to secure its computer resource and information contained therein following the reasonable security practices and procedures.
- Reporting cyber security incidents to the government: The intermediary should report cyber security incidents and share related information with the Bangladesh Telecommunication Regulatory Commission Computer System Incident Response Team (BTRC-CSIRT).
- Government data request must be responded to within 72 hours: Intermediaries must provide government agencies that are lawfully authorised for investigative or protective or cyber security activities with information under its possession within 72 hours of receiving an order provided that such an order is in writing and clearly states the purpose of seeking information or assistance.
India’s IT Rules: India’s rules require intermediaries to take reasonable security practices and procedures as prescribed in the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011 and any cybersecurity incident must be reported to the Indian Computer Emergency Response Team. The provision on sharing data with government agencies is the same in both countries.
Physical contact address in country
Bangladesh’s regulation requires social media intermediaries serving the country to have a physical contact address in Bangladesh published on its website or app.
India’s IT Rules: Same as above.
What provisions are missing from Bangladesh’s proposed rules?
Some definitions relevant to social media platforms: India’s IT Rules define access control mechanism, access services, child, grievance, user, user account, but there are no definitions for the same in Bangladesh’s version.
User verification: India’s IT Rules requires social media intermediaries to enable users to voluntarily verify their accounts by using any appropriate mechanism, including an Indian mobile number. The intermediaries must provide the user with a demonstrable and visible mark of verification, which is visible to all users of the service.
Non-observance of rules: If an intermediary failed to observe the IT Rules, it will be denied safe harbour provisions of sub-section (1) of section 79, which will it liable for content posted on its platform.
User rights: If a significant social media intermediary removes or disables access to any content, it must provide the user with a notification explaining the action being taken and the grounds for such action. The user must be provided with an adequate and reasonable opportunity to dispute the action being taken and request for the reinstatement of the content.
Complaints tracking: The IT Rules require significant social media intermediaries to implement an appropriate mechanism for tracking complaints received through the grievance redressal mechanism.
Advertisement disclosures: Significant social media intermediaries showing content that brings direct financial benefit to the person sharing the content must mark the content as advertised, marketed, sponsored, owned, or exclusively controlled, as the case may be.
- Bangladesh Releases Draft Rules To Regulate OTT Platforms, Modelled On India’s IT Rules
- Summary: Information Technology Rules 2021, And Intermediaries And Social Media Platforms
- Summary: WhatsApp Alleges IT Rules Are Unconstitutional In Lawsuit Against Indian Government
- How The IT Rules FAQs Add To The Arbitrariness And Confusion Around The Rules
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