Critical Analysis of the Laws of Hate Speech: A Reformative Way Forward

ABSTRACT 

This article critically examines the laws regulating hate speech in Bangladesh, focusing on  constitutional guarantees, statutory provisions, judicial interpretation, and recent legislative  reforms. While Article 39 of the Constitution upholds freedom of speech, this right is curtailed by  vague and overbroad restrictions found in the Penal Code 1860, the ICT Act 2006, the Digital  Security Act 2018, and the Cyber Security Act 2023, recently replaced by the Cyber Protection  Ordinance 2025. These laws, often misused against journalists, activists, and political opponents,  have undermined trust in democratic institutions and created a chilling effect on expression. 

The research employs a mixed-method approach, combining doctrinal legal analysis of statutes,  case law, and constitutional provisions with a review of peer-reviewed journals, human rights  reports, and comparative South Asian perspectives. This combination allows both a theoretical  and contextual understanding of hate speech regulation, leading to reform-oriented  recommendations. 

1. Introduction 

Hate speech, as a legal and social phenomenon, has become one of the most pressing challenges  of the twenty-first century, particularly in states where freedom of expression intersects with  political, religious, and ethnic sensitivities. Globally, hate speech is understood as expressions that  incite discrimination, hostility, or violence against individuals or groups based on race, religion,  ethnicity, gender, or other identity markers.1In liberal democracies, regulating such speech  requires balancing the competing imperatives of protecting human dignity and safeguarding  freedom of expression.2 

In Bangladesh, the challenge of regulating hate speech has grown significantly with the expansion  of digital platforms.3 Online spaces have amplified political, religious, and communal tensions, often escalating into offline violence.4In response, the state has enacted multiple legal instruments such as the Penal Code 1860, the Information and Communication Technology Act 2006, the  Digital Security Act 2018, and the now-repealed Cyber Security Act 2023, which has been  replaced by the Cyber Protection Ordinance 2025.5 These laws have been enacted with the stated  objective of preventing hate speech and ensuring public order. However, their vague provisions  and broad scope have often facilitated misuse, leading to censorship, arbitrary arrests, and a  chilling effect on free expression.6 

Constitutionally, Bangladesh guarantees freedom of thought, conscience, and speech under Article  39, but this right is subject to “reasonable restrictions” in the interest of state security, public order,  or morality.7 The difficulty lies in how such restrictions are interpreted and enforced. Courts and  law enforcement authorities have often adopted expansive readings of statutory provisions,  blurring the line between hate speech and legitimate criticism.8 

2. Research Methodology 

This research employs a mixed-method approach, combining doctrinal legal analysis with  comparative and contextual perspectives. 

Doctrinal Method 

The doctrinal method is the primary approach, focusing on a critical reading of constitutional  provisions, statutes, and case law. Core legal instruments examined include the Penal Code 1860,  the Information and Communication Technology Act 2006, the Digital Security Act 2018, the  Cyber Security Act 2023, and the newly enacted Cyber Protection Ordinance 2025. Judicial interpretations and relevant High Court Division decisions were reviewed to assess how hate  speech laws have been applied in practice. 

Comparative Method 

To situate Bangladesh within a broader South Asian context, the study incorporates a comparative  analysis of hate speech laws in India, Pakistan, Nepal, and Sri Lanka, as well as international  frameworks such as Article 19 of the ICCPR and the Rabat Plan of Action. This allows for  identification of best practices and lessons for domestic reform. 

Contextual Method 

The research also engages in limited contextual analysis, drawing on peer-reviewed journals, law  reviews, and human rights reports to understand the social and political impacts of hate speech  regulation in Bangladesh. This includes examining how these laws have affected journalists,  activists, and minority groups. 

3. Hate Speech Laws in Bangladesh 

Penal Code, 1860 

The Penal Code, 1860, although enacted during British colonial rule, continues to influence the  contemporary legal framework concerning hate speech in Bangladesh. The following provisions  are particularly relevant: 

Section 153A: Prohibits the promotion of enmity between different groups on grounds of religion,  race, language, or place of birth. 

Section 295A: Criminalises deliberate and malicious acts intended to outrage religious feelings. 

Section 505: Penalises statements that create or promote enmity, hatred, or ill-will between classes  or disturb public tranquility. 

These sections serve as the backbone of the traditional legal response to hate speech in Bangladesh.  However, scholars argue that the colonial legacy of these laws often results in vague, overbroad, and disproportionately punitive applications that infringe on freedom of speech, particularly  political expression and religious criticism.9 

Information and Communication Technology Act, 2006 

The ICT Act, 2006, particularly Section 57, played a controversial role in criminalising hate speech  and online expression. Section 57 criminalised the publication of “false or obscene” material in  electronic form that could hurt religious sentiments, defame a person, or damage the image of the  state. This provision led to numerous arrests,10 including journalists and students, often without  sufficient legal safeguards. 

Digital Security Act 2018 

The Digital Security Act, 2018 (DSA) replaced the ICT Act and was purportedly enacted to  provide better safeguards for freedom of expression. Yet, it retained and expanded several  problematic provisions, including: 

Section 25: Criminalizes publication of false or offensive information online. Section 28: Prohibits publishing material that hurts religious sentiment or values. 

Section 29: Punishes publication of defamatory information, echoing the defamation provisions of  the Penal Code. 

Section 31: Penalizes speech that can deteriorate law and order or incite communal tension. 

These sections have been widely used against political opponents, journalists, and human rights  activists.11 Peer-reviewed legal studies have emphasised that the language used in these provisions e.g. “hurts religious sentiment,” “defamation of the state,” or “creates confusion” violates the  principles of legal certainty and necessity under international human rights law.12. 

Cyber Security Act, 2023 

The Cyber Security Act, 2023 (CSA) repealed the Digital Security Act but retained many of its  controversial features. The following sections are relevant: 

Section 25: Continues to criminalise “offensive, false or threatening” digital content. Section 28: Prohibits online content that “hurts religious values or sentiment.” Section 29: Penalises online defamation based on Section 499 of the Penal Code. 

Section 31: Criminalises digital content that deteriorates law and order or threatens communal  harmony. 

Although some penalties were reduced and provisions modified, the vague language and lack of  judicial safeguards remain problematic. Scholars observe that the CSA has not meaningfully  resolved the tension between regulation and constitutional rights,13 especially since it fails to  incorporate international tests such as the Rabat Plan of Action’s six-part threshold test.14 

Cyber Protection Ordinance, 2025 

In response to longstanding criticism of the Cyber Security Act 2023, the interim government of  Bangladesh repealed the statute and promulgated the Cyber Protection Ordinance, 2025, published  in the official gazette on 21 May 2025.15 The Ordinance repealed nine sections of the former Act,  which were widely criticised for criminalising vague notions of “defamation,” “false information,” and “hurting sentiments.”16 As a result, approximately 95% of ongoing cases filed under the  repealed provisions were automatically dismissed, signaling a significant shift in state policy.17 

The new Ordinance introduces several notable reforms. First, it recognizes internet access as a  civil right, aligning Bangladesh with global trends that treat digital connectivity as essential to  citizenship.18 Second, it criminalizes AI-enabled cybercrimes, online sexual harassment, and  explicitly addresses hate speech incitement.19 However, the law retains controversial powers such  as warrantless arrests, which civil society and international observers fear could perpetuate the  misuse of cyber laws for political or arbitrary purposes.20 

4. An Empirical Inquiry into the Application and Perception of Hate Speech Laws in  Bangladesh 

This research engaged 61 participants through a Google Form survey and additional informants  through in-depth interviews. These participants represented various demographic, academic,  and professional backgrounds: 

• General Public: Citizens from both urban and semi-urban settings. 
• Students: University and college students, many from legal and social science  backgrounds. 
• Legal Professionals: Practicing lawyers, legal academics, and the Head of the Department  of Law & Human Rights at the University of Asia Pacific. 

Quantitative Findings from the Survey (61 Respondents) 

From the survey data extracted from Hate Speech Survey, key findings include:

The empirical survey conducted among 61 respondents comprising students, legal professionals,  activists, and members of the public revealed critical patterns regarding exposure to hate speech,  perceived legal protections, and the suppression of free expression in Bangladesh. The findings  are summarised in the table below:

Analysis: 

The findings illustrate a significant level of digital exposure to hate speech, with nearly two thirds of respondents reporting such experiences. The majority of hate speech was found to target  religious and political identities, reflecting Bangladesh’s polarized sociopolitical climate. Public  trust in the legal system appears markedly low: only 23% believe the laws offer fair protection,  while 74% contend that the laws’ ambiguity facilitates selective enforcement, often politically  motivated.  

Additionally, the survey reveals a growing climate of fear, particularly among students, where  59% admitted to self-censorship on digital platforms due to the potential criminalisation of  dissenting opinions. These results point to a disjunction between the intended purpose of hate  speech laws and their actual implementation, highlighting the urgency for clearer definitions,  safeguards against misuse, and protection of lawful expression. 

Expert Interviews (Surveys): 

Interview with Md Asaduzzaman, the Head of the Department of Law & Human Rights at the  University of Asia Pacific.  

The judiciary plays a critical role by interpreting laws consistent with constitutional values and  international obligations. Courts can set precedents to clearly define hate speech, establish  thresholds for criminalization, and ensure that enforcement mechanisms are not misused to  suppress dissent or criticism. Additionally, they can emphasize restorative justice approaches, such  as reconciliation or education, for offenders where appropriate. 

Remedies could include both criminal and civil measures. Criminal prosecution for spreading false  information or inciting violence is an option, but civil remedies like defamation suits, monetary  compensation, and public apologies can also serve as deterrents. Furthermore, independent  oversight mechanisms or media regulatory bodies can be empowered to address political hate  speech; ensuring accountability extends to individuals and institutions.

Interview with Professor Quazi Mahfujul Haque Supan 

Professor Quazi Mahfujul Haque Supan is an Associate Professor of Law at the University of  Dhaka and a member of the Justice Division Reform Commission under the Muhammad Yunus led Interim Government.  

When asked about the Cyber Protection Ordinance 2025, he explained that it is a clear  improvement over the Cyber Security Act 2023 because it repeals vague provisions and dismisses  many pending cases filed under the old law. However, he cautioned that the new ordinance still  contains ambiguous language and retains discretionary powers that could be misused by law  enforcement. 

On the necessity of repeal, Professor Supan stated that repealing the old law was essential, as it  had become a political tool instead of a genuine safeguard for cyber security. He emphasised that  laws with such vague grounds as “hurting religious sentiment” or “deteriorating law and order”  eroded public trust and disproportionately targeted journalists, activists, and political opponents. 

Regarding Section 17 of the Ordinance, which criminalises unauthorised access and AI misuse, he  noted that enforcement is technically very challenging. Bangladesh lacks advanced forensic  capacity and trained investigators to prove such crimes. At this point, he stressed the relevance of  the Criminal Matters Act 2012 and the recent amendment to the Evidence Act 1872, which  formally recognises digital evidence as admissible in court. According to him, these legal tools  must be effectively applied to ensure reliable investigation and fair trial in cybercrime cases. 

Professor Supan also emphasised that courts must strengthen their ability to handle highly  technical evidence such as AI-generated data or manipulated source codes. He suggested building  a panel of independent digital forensic experts and providing continuous training to judges on  evaluating digital evidence fairly. 

Discussing loopholes, he pointed out that undefined terms like “AI misuse” or “data manipulation”  could be exploited by hackers. Instead of closing gaps, vague wording risks leaving too much room  for abuse. 

Finally, reflecting on Section 50, which cancels many speech-related cases under the old law, he  observed that this will certainly improve the environment for free expression online. However, he 

warned that without a clear and specific definition of hate speech, the balance between protecting  freedom of speech and preventing harmful content will remain unstable. He compared this to  Pakistan’s hate speech laws, which largely focus on protecting Islam. In his view, Bangladesh  must avoid such one-sided protection and instead ensure that hate speech laws apply equally to all  religions and communities. 

8. Conclusion & Recommendations 

Conclusion 

In Bangladesh, laws such as the ICT Act, Digital Security Act (DSA), Cyber Security Act (CSA),  Cyber Protection Ordinance, 2025 and the Penal Code indirectly address hate speech but fail to  provide a clear legal definition. As a result, these laws are often misused to target individuals  particularly those expressing dissent or criticism of the government, both online and in protests by  labeling such expression as hate speech. However, there is no clear legal guideline on what  language or actions constitute hate speech, leading to arbitrary enforcement and harassment. 

Bangladesh guarantees free speech under Article 39 of its Constitution, but this right is  consistently undermined by vague restrictions and overbroad laws. Statutes such as the Digital  Security Act 2018 and the Cyber Security Act 2023 criminalised expression on loosely defined  grounds like “hurting religious sentiment” or “deteriorating law and order,” leading to  widespread misuse against journalists, activists, and political opponents. While the recently  promulgated Cyber Protection Ordinance 2025 repealed several controversial provisions and  dismissed a large number of pending cases, it still retains vague drafting and discretionary  powers, meaning that the risk of arbitrary enforcement and suppression of dissent continues.

Recommendations 

The following key reforms are recommended: 

1. Enact a Specific Hate Speech Law 

Bangladesh should introduce a dedicated law that clearly defines hate speech in line  with Article 20(2) of the ICCPR. This definition must separate hate speech from merely  offensive or critical expression, focusing only on speech that incites discrimination,  hostility, or violence. 

2. Use the Rabat Plan of Action as a Framework 

Incorporating the Rabat Plan’s six-part threshold test (context, speaker, intent, content,  extent, and likelihood of harm) into legislation would help ensure that restrictions on  speech are precise, justified, and not overly broad. 

3. Enhance Judicial Oversight and Safeguards 

Prosecutions under hate speech and cyber laws should require prior judicial approval  to prevent misuse. Judges should receive training to apply hate speech standards  consistently and independently, ensuring fair enforcement. 

4. Reform Vague Provisions in Cyber Laws 

Ambiguous provisions in statutes like the Cyber Security Act 2023 for example,  phrases such as “hurting religious sentiments” or “deteriorating law and order” should be repealed or redrafted with precise definitions. Retaining vague language  enables arbitrary enforcement, suppresses legitimate expression, and erodes public  trust in legal protections. Future reforms, including under the Cyber Protection  Ordinance 2025, must ensure clarity and proportionality to align with constitutional  guarantees of free speech and international human rights standards. 

5. Promote Media Literacy and Counter-Speech

Beyond legal reform, efforts should focus on education and public awareness.  Promoting digital literacy and counter-narrative campaigns can help combat hate and  misinformation more effectively than punitive measures alone. 

6. Protect Minorities and Vulnerable Groups 

Any legal reforms must prioritize the protection of minorities and marginalized  communities, who are often the primary targets of hate speech. Laws should uphold  the principle of substantive equality and address the realities faced by these groups.

Bibliography 

1. The Constitution of the People’s Republic of Bangladesh 
2. Penal Code 1860 (Act XLV of 1860) 
3. Information and Communication Technology Act 2006 (Act No. 39 of 2006) 4. Digital Security Act 2018 (Act No. 46 of 2018) 
4. Cyber Security Act 2023 (Act No. 20 of 2023) 
5. Cyber Protection Ordinance 2025 (Bangladesh Gazette, 21 May 2025) 7. International Covenant on Civil and Political Rights (adopted 16 December 1966, entered  into force 23 March 1976) 999 UNTS 171 (ICCPR) 
6. Rabat Plan of Action on the Prohibition of Advocacy of National, Racial or Religious  Hatred that Constitutes Incitement to Discrimination, Hostility or Violence (OHCHR,  2012) 
7. Ahmed, Naeem. ‘Freedom of Expression and Its Limitations under the Constitution of  Bangladesh’ (2019) 33 Dhaka University Law Journal 45 
8. Alam, Shahdeen. ‘Regulating Digital Speech in Bangladesh: A Constitutional Dilemma’  (2020) Bangladesh Journal of Law and Policy 17(2) 55 
9. Bari, Mohammad Towhidul. ‘Hate Speech and the Limits of Free Expression in South  Asia’ (2022) Asian Journal of Comparative Law 17(1) 133 
10. Haque, Mahfuzul. ‘The Digital Security Act and Its Discontents: Revisiting Article 39 of  the Constitution’ (2021) Daily Star Law & Our Rights 
11. Islam, M. Rafiqul. Constitutional Law of Bangladesh (2nd edn, Mullick Brothers 2018) 14. Khan, Mizanur Rahman. Human Rights in Bangladesh: Rhetoric and Reality (UPL 2017)
12. Rahman, Tanzim. ‘Freedom of Speech, Religious Sentiment and the Digital Security Act:  A Human Rights Perspective’ (2021) Bangladesh Institute of Law and International Affairs  Review 5(1) 67 
13. Supan, Quazi Mahfujul Haque. ‘Cyber Laws and Constitutionalism in Bangladesh: The  Need for Reform’ (2023) UAP Law Review 2(1) 1 
14. OHCHR, Countering Hate Speech: UN Strategy and Plan of Action (2020)

1 Tarlach McGonagle, ‘The Council of Europe against Online Hate Speech: Conundrums and Challenges’ (2013) 3  Expert Paper Council of Europe 4. 

2 Eric Barendt, ‘Freedom of Expression and Hate Speech’ (2019) 1(2) Oxford Journal of Law and Religion 351.

3 Md Rahmat Ullah, ‘Hate Speech, Religion, and the Law in Bangladesh: A Critical Assessment’ (2021) 10(1)  Bangladesh Journal of Legal Studies 55.

4 Mizanur Rahman, ‘Digital Speech, Hate Crimes and Freedom of Expression in Bangladesh’ (2022) 17(2) Asian  Journal of Comparative Law 211. 

5 Prothom Alo, ‘Bangladesh Gazette: Cyber Protection Ordinance 2025 Replaces Cyber Security Act 2023’  (Prothom Alo, 21 May 2025) https://en.prothomalo.com/bangladesh/government/5gj5obvmuw accessed 25 August  2025. 

6 Farzana Akter, ‘Revisiting the Digital Security Laws: A Critical Assessment of Bangladesh’s Cyber Security Act  2023’ (2024) Bangladesh Journal of Law (forthcoming). 

7 Constitution of the People’s Republic of Bangladesh 1972, art 39. 

8Iftekharuzzaman, ‘Judicial Silence and the Digital Space in Bangladesh: Challenges in Defending Freedom of  Expression’ (2022) 9(1) Asian Legal Policy Review 44.

9Nilufer Yesmen, ‘Online Hate Speech and Judicial Response in Bangladesh’ (2023) 15(2) Dhaka University Journal  of Law 63. 

10ibid. 

11Rifat Sultana, ‘A Critical Analysis of the Cyber Security Act 2023 in Bangladesh: Continuity or Reform?’ (2024)  12(1) Dhaka University Law Review 88.

12UN Human Rights Committee, General Comment No 34: Article 19: Freedoms of Opinion and Expression (2011)  UN Doc CCPR/C/GC/34. 

13Rifat Sultana, ‘A Critical Analysis of the Cyber Security Act 2023 in Bangladesh: Continuity or Reform?’ (2024)  12(1) Dhaka University Law Review 88. 

14UN Human Rights Committee, General Comment No 34: Article 19: Freedoms of Opinion and Expression (2011)  UN Doc CCPR/C/GC/34. 

15 Bangladesh Government, ‘Cyber Protection Ordinance, 2025’ (gazette 21 May 2025) Legislative and  Parliamentary Affairs Division, Ministry of Law https://en.prothomalo.com/bangladesh/government/5gj5obvmuw accessed 25 August 2025.

16 Legal Giant BD, ‘Cyber Security Ordinance 2025: Is It Better or Worse?’ (Legal Giant, 23 May 2025)  https://legalgiantbd.com/cyber-security-ordinance-2025-is-it-better-or-worse accessed 25 August 2025

17 TBS News, ‘Govt Approves Cyber Security Ordinance 2025, Repeals 9 Sections of Previous Law’ (TBS News,  22 May 2025) https://www.tbsnews.net/bangladesh/govt-approves-cyber-security-ordinance-2025-repeals-9- sections-previous-law-1135181 accessed 25 August 2025. 

18 ibid. 

19 ibid. 

20 ARTICLE 19, ‘Bangladesh: Concerns Over Draft Cyber Protection Ordinance’ (ARTICLE 19, 24 May 2025)  https://www.article19.org/resources/bangladesh-draft-cyber-protection-ordinance accessed 25 August 2025.