By Sazzad Hossain Sourov and Ashru Rekha
Abstract
Constitutional approaches to the digital era are a new global phenomenon of Internet governance. Adopting the principles and values of the constitution in the digital realm protects the rights of the consumer by governing the policy maker, algorithmic society, and government in case of taking any arbitrary action. The basic digital rights including data privacy, access to the internet, protection against cybercrime, and enjoying digital content without restriction provided content does not violate the law, enrich the concept of digital constitutionalism. This paper unravels the ideology of digital constitutionalism and net neutrality, focusing on Bangladesh’s perspective. The objects of the paper demonstrate the legal framework of the Internet Bill of Rights and how to incorporate constitutional principles and democratic values into the Internet and suggest judicial protection of fundamental rights on the Internet to resolve.
Unraveling the Dimension of Digital Constitutionalism and Net Neutrality
Digital Constitutionalism
Digital constitutionalism is a set of principles that govern the use of digital technologies and the Internet. It’s not a unique concept but the expression of different constitutional approaches to the digital landscape[1]. The theory of digital constitutionalism relates to the principles of traditional constitutionalism that denotes the limited power of the governments and their organs e.g. Executive, Legislative, and Judicial, to prevent arbitrary action. It governs the action of the government for the prevention of tyranny and protects the rights of people to limit the power of the government and its officials as well[2]. Digital Constitutionalism, in the same manner, limits the exercise of powers in a networked society. It broadened the scope of the original concept of constitutionalism in such a manner.
Giovanni De Gregorio, a postdoctoral researcher at the Center for Socio-Legal Studies, University of Oxford, in his book ‘Digital Constitutionalism in Europe: Reframing Rights and Powers in the Algorithmic Society’ – provides a comprehensive analysis of the development of digital constitutionalism. The book determines digital constitutionalism as rights and powers in the digital age and frames constitutional rules in an algorithmic society.
Edoardo Celeste, an Assistant Professor of Law at Dublin City University Ireland, in his book ‘Digital Constitutionalism: The Role of Internet Bills of Rights – provides a major contribution framing digital constitutionalism as incorporating an Internet Bills of Rights where fundamental rights of people in digital realm are ensured.
Redeker, Gasser, and Gill’s perspective on digital constitutionalism articulate political rights, governance norms, and limitations on the exercise of power on the Internet [3]. Digital Constitutionalism protects the fundamental rights of persons against the charm of digital liberalism and gives safeguards to protect democratic values on the internet[4]. The procedural method of digital constitutionalism governs the action of government and algorithmic society by regulating their conduct in the case of digital technology which restricts a person’s liberty to express freedom of thought in algorithmic media. In such a manner digital constitutionalism impacts constitutional values and principles.
Net Neutrality
Net neutrality means the equal justification of all data and treats them equally [5]. Internet Service Providers (ISP) must allow persons, without any discrimination, access to free and open internet content provided the contents do not violate laws. In the case of net neutrality European Union (EU) formulated a process to promote free internet access by preventing ISPs from blocking and restricting internet users to access lawful content [6].
In Bangladesh, digital platforms including the internet, social media, cyber sites, and OTT platforms are regulated under the Bangladesh Information and Communication Technology (ICT) Act,2013; Cyber Security Act, 2023 and Bangladesh Telecommunication and Regulatory Commission. Net neutrality in Bangladesh depends on these laws and bodies.
Connectivity Between Digital Constitutionalism & Net Neutrality
Digital constitutionalism and net neutrality are interconnected doctrines that indicate the governance and regulation of the Internet. It applies the idea of constitutional principles e.g. Freedom of expression, freedom of speech, and privacy. Digital constitutionalism acts as a safeguard in the Internet realm and produces a legal framework for Internet governance.
Statista, a digital data analysis authority, published a report that relates the number of internet users worldwide as of July 2024, which was 5.45 billion people which amounted to 67.1 percent of the global population [7] . Digital constitutionalism and net neutrality ensure a free and open internet as a fundamental right to expression, and access information, and articulate the strategy for a democratic online internet. As a method of preventive relief, both govern the action of the government and algorithmic society by preventing them from restricting the internet or blocking data.
Analytical View of Digital Constitutionalism in Bangladesh
The age of the Internet began in the 1960s in Europe when computer specialists exchanged information from main to remote computers. Before that, in 1955, Tim Berners Lee created WWW, HTML, HTTP, URL, and web browsers which lead to Internet Revolution in the world. Bangladesh entered into the Internet age in the late 20th Century but it gained popularity in the country in the 2nd decade of the Twenty-First century. So far, in 2022 the number of mobile-cellular subscriptions in Bangladesh was 186 million [8]. The Daily Star published a report on 9 May 2023 stating that according to the data of Bangladesh Telecommunication Regulatory Commission (BTRC) 12.61 crore people are using the internet [9]. These statistics indicate a revolution in Bangladesh’s Technological Landscape.
The government, to regulate the action of internet users, enacts laws from time to time and adjudicates the accused by creating a cyber tribunal. Bangladesh Information and Communication Technology (ICT) Act-2006 and Cyber Security Act-2023 are the main substantive law for cybercrime. Bangladesh has also set up digital crime prevention agencies like the Bangladesh Telecommunication and Regulatory Commission (BTRC), Bangladesh Computer Emergency Response Team (bdCERT), and Cyber Unit of Bangladesh Police as well as created Cyber Tribunal and Cyber Appellate Tribunal.
These laws and policies deal only with digital crime and punishment in a simplistic manner while ignoring constitutional principles and values to create a mere framework that provides some relief from this crime but does play an effective role like constitutionalism. Absolute authority and all power to control digital tech users belongs to the government most often. In many cases, the government uses its discretionary authority to control the action of digital technology users arbitrarily.
On the other hand, algorithmic society imposes restrictions that restrain users from free and open access to the internet. They sometimes release users’ information on the internet market without permission thereby compromising data privacy. Most often the products that internet users talk about personally with each other online or when they use search engines repeatedly see that information in their news feed despite any reluctance. Content and data privacy are disrupted as a consequence of the action of an algorithmic society.
The arbitrary action of the government and algorithmic society violates freedom of expression, data privacy, and free and open internet. To keep the rights of the people of Bangladesh intact in the digital world, it is necessary to build a digital constitutional framework where the principles and values of the constitution are incorporated.
Digital constitutionalism limits the power of government and algorithmic society and prevents the right of people from arbitrary action. ‘potentia absoliuta omnio corrumpit’ is a Latin term that means absolute power corrupts absolutely. If the absolute right has been given to the users on the internet, there is a high possibility of abusing it. Digital constitutionalism and net neutrality protect the person from the charm of digital liberalism in that case.
Digital constitutionalism is essential to cure this deficiency through adoption of constitutional norms and principles in the digital era
Theory Which Leads to Digital Constitutionalism in Bangladesh
The concept of Digital Constitutionalism rises from the necessity of how to protect the Fundamental Rights of Internet Users in digital platforms. Interventions of Constitutional Principles in Internet Governance can protect the Rights of Internet user as well as limit the exercise of powers of by Government and the Algorithm society. Bangladesh has created a legal framework for the control and prevention of cyber-related crime and digital security of citizens, but some sections of these acts and statutes contradict the provisions of the constitution which gives rise to unaccountable powers of government in the internet eco-system.
Though section 57 of the ICT Act 2013 contradicts to the constitution of Bangladesh, this contradictory section has been incorporated in a new form in the Cyber Security Act, 2023 which is a Replacement of Section 57 of the ICT Act 2013.
In Hector v AG of Antigua and Barbuda (1990)[10] Lord Bridge of Harwich expressed that in a free democratic society government must be open to be criticized.
A national daily ‘Prothom Alo’ reported that a student of Jagannath University, Bangladesh Khadijatul Kubra, suffered in jail without being proven guilty on allegations of spreading anti-government statements [11].
“Innocent until proven guilty” is a well-known legal principle. A person is Innocent until his guilt is proven but in this act, there are some sections which are Non-Bailable. Amnesty International in 2021 reported that Ahmed Kabir Kishore, a cartoonist, and Mushtaq Ahmed, a writer, were detained for posting on Facebook satirical cartoons relating to the government action in Covid-19[12] and they could not be given grant bail for the provisions of this Act.
Constitutional Approaches to the Digital Realm & Net Neutrality
The constitution is a set of principles that express the power and function of government, e.g. Executive, Legislative, Judiciary; and rights, and duties of the citizen itself[13]. The constitution of Bangladesh incorporated fundamental principles of state policy, fundamental rights, power, and function of the government and its organ. The constitutional principles, if applied in the digital landscape, may protect fundamental rights and privacy of internet users. This method is recognized as digital constitutionalism.
The principles of the right to equality, equality of opportunity, and equality before the law may be adopted in digital constitutionalism to maintain net neutrality. Digital constitutionalism is a new concept in Bangladesh and even in the world. Adopting constitutional rights in digital media also explores the rights and limits of algorithmic society and government.
Constitutional Principle ‘Rule of Law’ in the Digital Realm
The rule of Law is the most crucial constitutional law adopted in the constitution of Bangladesh. Rule of law indicates the sovereignty and supremacy of law prevail over persons irrespective of rank, social status, race, caste, sex, or place of birth[14]. Today’s welfare state moved away from the concept of Rex Non-Potest Peccare- a Latin maxim that means the king can do no wrong. The government or king today is even under the subject of the law.
Articles 27 and 31 of the constitution of Bangladesh refer to equality before the law and equal protection of the law. These two principles may govern to limit the power of government and the algorithmic society from taking arbitrary action against Bangladeshi people who exercise their freedom of expression in the digital era.
Equality before law, if incorporated into the digital constitution, provides all people may access a free and open internet, and that a new term: equality before technology, will emerge and net neutrality will be sustained. After ensuring the principle of equal protection of law in digital constitutionalism, the users may protect themselves from the charm of digital liberalism and cyber-attack.
Constitutional Framework ‘Fundamental Rights’ in the Digital Landscape
Fundamental rights are those which are guaranteed by the constitution and violation of which judicial remedy is available [15]. The constitution of Bangladesh incorporated 18 fundamental rights from articles 27 to 44.
A Constitutionally protected the right of freedom of expression is incorporated in article 39 which holds paramount importance and guiding principles in digital constitutionalism. Freedom of expression means one’s own opinion may express absolutely and freely by speaking, writing, printing, painting, or any other means[16]. People can freely exercise their freedom of expression, thought, and conscience in the digital world without any illegal obstacles, the principles of the constitution related to freedom of expression is brought to digital constitutionalism.
Democratic Values of the Constitution in the Digital Age
Bangladesh is a sovereign, independent, and democratic country known as the People’s Republic of Bangladesh[17]. Democracy is one of the basic structures of the constitution of Bangladesh and has been settled by the Supreme Court in the case of Anwar Hossain Chowdhury v Bangladesh and Others[18]. Sustainable democratic values are the fundamental principles of state policy that lead to enjoying fundamental rights. Fundamental rights should be incorporated in the digital era as human beings enjoy, otherwise, democratic values collapse. Freedom of expression, data, and content privacy are the core element of democratic values that can be enjoyed by any person for the very reason that he is a citizen of Bangladesh.
Data Privacy and the Constitution
Data, in the fourth industrial revolution, is recognized as a new currency growing at an unprecedented rate [19]. The privacy of Big Data is a challenging issue in every jurisdiction. The jurisprudence of data protection emerged from the right to privacy.
The constitution of Bangladesh may not have explicit provisions on data privacy, but Article 32 ensures the protection of life and personal liberty. As data is closely connected to people’s lives, a violation of data privacy may also be viewed as a violation of the right to life. Moreover, personal liberty includes the right to access and use data lawfully.
Subject to reasonable restriction every person has the right to privacy in their correspondence and means of communication, as guaranteed by Article 43(b). This includes personal information such as socio-cultural and political information that may be contained in their digital communication data. Therefore, data privacy must be ensured under the principles of Article 43(b).
Internet Bill of Rights
The Internet Bill of Rights is the most effective tool to ensure network neutrality and protect the rights of Internet consumers in digital constitutionalism. Edoardo Celeste in his book ‘Digital Constitutionalism: The Role of Internet Bills of Rights’ elaborately discuses a person’s rights and limits the power of government and algorithmic society in the digital realm [20]. On the other hand, Lex Gill, Dennis Redeker, and Urs Gasser define digital constitutionalism to craft Internet Bills of Rights [21]. In Bangladesh, ensuring the rights of people in the digital era limits the power of the government to take irrelevant action against Internet consumers on the following grounds should be incorporated in the Internet Bill of Rights:
Ensuring network neutrality so that Internet Service Providers (ISP) do not impose irrelevant blocking systems which restrain consumers to access the free and open Internet.
The companies which collect personal data have reasonable business practices and must be accountable to protect privacy.
Taking consent before sharing personal data with the third party
Notify the person in such a manner when a data privacy is breached or unauthorized access to personal data is made.
A person has the absolute right to legally move his data from one network to the next.
All persons have the right to access the internet without ISP which are engaged in blocking, throttling, and unfair content, applications, services, or devices.
Prohibiting ISPs from engaging to impose prioritization of paid on consumers accessing data and content.
Ensuring affordable internet platforms and services with reasonable fares.
Conclusion
By incorporating the principles and values of the constitution of Bangladesh into the digital era, fundamental rights including the freedom of expression and data privacy shall be ensured. Digital Constitutionalism limits the power of government and the algorithmic society from taking arbitrary action. Ensuring access to the free and open internet in Bangladesh, a legal framework of Digital Constitutionalism effectively allows individuals to exercise their constitutionally enshrined rights within the realm of the online sphere.
1st Writer: Sazzad Hossain Sourov is a law student at Jagannath University, Bangladesh. He is actively engaged in Legal Research and National and International Moot Court Competition about domestic constitution and Public International Law. Besides his academic performance, he has achieved numerous national and international legal competition such as : Best Oral Advocate Award on Intra Department Moot Court Competition -2022, Best Oralist Award on Inter University Moot Court Competition -2023. He participated Prof. N.R Madhava Menon Global Mooting Competition, India -2023 as a first oralist. His research paper was selected at Undergraduate Law Symposium Fall -2022 organised by North South University, Bangladesh. As well as he participated International Lawfied Article Writing Competition regarding International Humanitarian Law. He also achieved academic scholarship from Higher Secondary School
Co-Writer: Ashru Rekha is a final year law student at Jagannath University, Bangladesh. She is engaged in various National and International Moot Court Competitions and pursues her interest in Legal Research about Domestic Constitutional Laws and Public International Law. She awarded as Champion Team Oralist on Inter Department Moot Court Competition in 2022, Semifinalist team oralist in Inter University Moot Court Competition, Semifinalist in SCLS Law Olympiad in 2023. She also participated in Philip C. Jessup International Law Moot Court Competition in 2024. She attends workshops and seminars relating to Mooting. She also completed a course on Exercising Leadership from Harvard Business School’s Aspire leadership program
[1] Giovanni De Gregorio, Digital Constitutionalism in Europe: Reframing Rights and Powers in the Algorithmic Society (first published, Cambridge University Press 2022) 13
[2] Sarkar Ali Akkas, Principles of Constitutional Law (first published, Bijoy law Book House 2020) 18, 19
[3] Lex Gill, Dennis Redeker and Urs Gasser, ‘Towards Digital Constitutionalism? Mapping Attempts to Craft an Internet Bill of Rights’ (2015) The Berkman Center for Internet & Society at Harvard University <http://ssrn.com/abstract=2687120> accessed 31 August 2024
[4] Giovanni De Gregorio (n 1) 41-43
[5] Will Kenton, ‘What is Net Neutrality? Policies and Controversy’ (Investopedia, 29 July 2023) <https://www.investopedia.com/terms/n/net-neutrality.asp> accessed 31 August 2024
[6] BEREC, ‘All you need to know about the Open Internet rules in the EU’ <https://www.berec.europa.eu/en/all-you-need-to-know-about-the-open-internet-rules-in-the-eu-0> accessed 31 August 2024
[7] Ani Petrosyan, ‘Number of internet and social media users worldwide as of July 2024’ ( Statista, 19 August 2024) <https://www.statista.com/statistics/617136/digital-population-worldwide/#:~:text=Worldwide%20digital%20population%202023&text=As%20of%20April%202023%2C%20there,population%2C%20were%20social%20media%20users> accessed 31 August 2024
[8] Petroc Taylor, ‘Number of mobile cellular subscriptions in Bangladesh from 2000 to 2022’ (Statista, 8 April 2024) < https://www.statista.com/statistics/497091/number-of-mobile-cellular-subscriptions-in-bangladesh/> accessed 31 August 2024
[9] Mahmudul Hasan, Number of internet users rises in March, The Daily Star, (Dhaka, 9 May 2023) <https://www.thedailystar.net/business/economy/news/number-internet-users-rises-march-3314581>accessed 31 August 2024
[10] Hector v AG of Antigua and Barbuda (1990) 2 All ER 103, 106
[11] Staff Correspondent, ‘DSA case: JnU student Khadija in jail for 8 months’ Prothom Alo (Dhaka, 12 April 2023) < https://en.prothomalo.com/bangladesh/udnvi77fie> accessed 31 August 2024
[12] Amnesty International, Bangladesh: Cartoonist Tortured, Writer Dies in Jail: Ahmed Kabir Kishore ( March 8, 2021) https://www.amnesty.org/en/documents/asa13/3800/2021/en/accessed 4 September 2024
[13] Sarkar Ali Akkas, Principles of Constitutional Law (first published, Bijoy law Book House 2020) 14
[14] Sarkar Ali Akkas (n 13) 23
[15] Constitution of the People’s Republic of Bangladesh [Bangladesh], 4 November 1972, art 44(1)
[16] Dewan Abdul Kader v Bangladesh (1994) 46 DLR 599
[17] Ibid art 1
[18] Anwar Hossain Chowdhury v Bangladesh (1989) BLD (Special issue) 1
[19] CIO, ‘Data is the New Currency’ (21 Nov 2022) < https://www.cio.com/podcast/412894/episode-4-data-is-the-new-currency.html#:~:text=Data%20is%20the%20new%20currency%20of%20business.,effectively%2C%20win%20in%20the%20market.> accessed 31 August 2024
[20] Edoardo Celeste, ‘Digital Constitutionalism: The Role of Internet Bills of Rights’ (first published, Routledge 2023)
[21] Lex Gill, Dennis Redeker and Urs Gasser (n 3)
