January 17, 2021 ksra 0 Comments

Barrister Khan Khalid Adnan

In modern democratic countries, respect for privacy of its citizens has become a matter of concern as many are claiming that some technological development is undermining the privacy of individual citizens. It is a well known factor that CCTV and other technologies (e.g. VMD – video motion detection, AVS – automated video surveillance etc) are now being used for the sake of preventing crimes and protecting people from criminal and disorderly behaviour. CCTV and these technologies have the potential to simultaneously protect us from unwanted criminal activities and to cause unwanted intrusion into our private lives at the same time. It cannot be denied that such technologies are essential for preventing crimes like shop-lifting, stealing cars from car parks, vandalism etc. However, increasing use of such equipments has given rise to certain concerns as: they can be used in covert ways; they can make people uncomfortable every time in the fear of being under surveillance; they may be abused by the controllers and moreover in our socio-political context dignity of women and young girls can be threatened by abusing these technologies. Concerns are less about CCTV surveillance and more about the accountability of users. Though CCTV and these technologies are sometimes viewed as indispensable for some security concern, there has been no scope of avoiding the possibility of negative use of these technologies through violating the privacy of a person which can very well lead to destruction of that person’s reputation and dignity in the society.

The possible legal protection in this area is particularly weak due to the fact that establishment and use of such CCTV technologies are not specifically controlled by specific laws. However, as the Constitution of the People’s Republic of Bangladesh says in Article 31 that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law, it is clear that our Constitution guarantees our right to reputation which is closely associated with the right to respect for privacy. The Information & Communication Technology Act 2006 (as amended in 2009) states that no person, in pursuance of any of the powers conferred under this Act, or rules and regulations made thereunder, who has secured access to any electronic record, information, document or material shall, without the consent of the person concerned, disclose such record or material to any other person (section 63). Contravention of this provision is a criminal offence punishable by imprisonment the terms of which may extend to two years, or with fine which may extend to taka two lacs or with both (section 63(2)). However, problem remains as no specialised Cyber Tribunal having jurisdiction to try such offences under this Act has yet been established. To what extent the Court of Session Judge is suitable to try such offence is questionable considering the technological dimension of the offence.   

For having recourse to traditional Penal Code and other offences, the issue of admissibility of CCTV footage has been resolved by section 87 of the 2006 Act whereby ‘document’ created by an electronic machine or method has been included within the ambit of section 29, Penal Code 1860 and section 3, Evidence Act 1872. However, following section 62, Evidence Act 1872, if a number of footages are all made by one uniform process, each is primary evidence of the contents of the rest. Therefore, in any case where CCTV footage requires to be adduced in evidence before the court, the issue of admissibility of such evidence is no longer problematic in view of the aforementioned laws.

Moreover, section 509, Penal Code has made exhibiting of any object intended to insult the modesty of a woman or intrude upon the privacy of such woman a criminal offence punishable by imprisonment that may extend to one year. The possible liabilities for defamation under the Penal Code as well as under the civil law can also become very relevant in this context.

In the UK, there has been a right regarding respecting privacy in Article 8 of the European Convention on Human Rights which has been incorporated into the UK domestic law by way of the Human Rights Act 1998. In the UK, Data Protection act 1998 is providing effective legal protection of private data of the citizens of the country. In Bangladesh, we need laws to regulate the installments and use of CCTV, VMD etc in both public and private places so that such technologies cannot be used as a mechanism of harassment. Unnecessary use of hidden cameras and covert uses of CCTV should be made severe criminal offences considering the heinous nature of criminal motives operating in the mind of the culprits. As Article 31 of the Constitution provides us a guarantee in respect of our privacy concern (though indirectly), security concern cannot be used as an excuse behind these criminal, psychic and disgusting activities. A Cyber Tribunal should be established under the 2006 Act. Finally, security concern should not be an overriding factor when it comes to intrusion to privacy; rather security and privacy both should be balanced for the betterment of our society.