Publishes by The Daily Star on February 27, 2010 (Link Above)

This week your advocate is Barrister Omar Khan Joy of the Supreme Court of Bangladesh and Head of ‘The Legal Counsel’. His professional interests include commercial law, corporate law, family law, land law, constitutional law, banking law, arbitration and intellectual property laws. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.

Reader’s query

I have a Facebook account. Recently I discovered that someone is operating another Facebook account using my name and profession and giving out my phone number to people I do not know. This fake account is hampering my reputation. It is vital to keep a clean image, especially in the kind of profession I have chosen to work in. I keep getting absurd telephone calls from people. It is causing me a lot distress. Is there any legal step that I can take against this person? Please advice.
Shanto, Banani

Thanks for your query. Facebook has now proved to be a very useful social communication tool helping the people to get in touch with lots of their friends and relatives and to make new friends at the same time. Unfortunately, however, at the backdrop it has been misused by many to the utmost discomfort of others by causing disruption to their personal lives and privacy. So, the problem raised by you is problem contemporary in nature and has now become a very common trouble for many.

While opening an account in the facebook, everyone agree to the terms and conditions of the facebook. These terms and conditions are the governing regulation of using the account and regulate the relationship between the facebook authority and its users. As per the said terms and conditions, facebook will not take the liability or responsibility for a situation where anyone opens a fake account in facebook. Facebook may, however, terminate that alleged fake account as they do not permit anyone to open an account for someone else. Hence, you can report against that person to facebook administration. Whether or not facebook administrator will terminate the fake account is a matter of their discretion. In case where a person posts content that is hateful, threatening, pornographic or where the account is used by someone to do anything unlawful, misleading or malicious or where the account is opened by using fake personal information, facebook administration is generally inclined to block such account. However, whether or not someone has opened an account with false personal information is a matter of fact and may always be controversial once someone else will allege that his personal information has been used by others. In such a case, unless the matter is visibly obvious, the alleged false account may not be terminated. As a matter of fact, even if the account is terminated the wrongdoer can very easily open another fake account using your personal details. According to facebook, they try to keep facebook bug-free and safe. But anyone using facebook uses the same on his own risk. They do not give any guarantee that facebook will be safe or secure. They are not responsible for the actions, content, information or data of third parties and the person using facebook have to release them, their directors, officers, employees, and agents from any claims and damages, known and unknown, arising out of or in anyway connected with any claim that is against any third parties. Having said the same, it is sad but true that except for lodging as complain in the form of reporting to the facebook administrator, you are left with very little practical solution to the problem. This should be mentioned that you certainly do not have any valid claim against the facebook authority for this unwanted occurrence.

Further or alternatively, you may decide to lodge a General Diary (‘GD’) before the police station stating the scenario. Lodging a GD may not help you to get a relief. This will, however, be admitted as evidence, in case if any subsequent action is lodged against you by someone alleging that you have committed crimes using the said fake facebook account.

Honestly speaking, the laws as well as the investigation procedure in Bangladesh relating to the cyber crimes are still in a very primary stage and are yet to be developed. Nevertheless, under the recent enactment, namely, the Information and Communication Technology (ICT) Act – 2006 (as amended in 2009) contains some provisions relating to cyber crimes. It is notable that as per section 4 of the ICT Act even if someone commits a crime under the Act in any place outside Bangladesh, it shall be treated in the same way as if the offence has been committed in Bangladesh. It is likely that the fake account-holder will be liable under the ICT Act for the commission of an offence and if proved and convicted, may be liable for imprisonment not exceeding the term of 10 (ten) years and financial penalty not exceeding 1 (one) crore Taka. As per the ICT Act, the government was supposed to establish a Cyber Tribunal to try the cases for violation of the provisions contained in the ICT Act. Regrettably, such specialized Cyber Tribunal has not yet been established. Consequently, such matter shall now be tried by the Court of Session Judge till the establishment of Cyber Tribunal. Furthermore, creation of fake account may also be punishable under the Penal Code for cheating by personating, defamation and/or forgery. In any case the ingredients of the offences have to be proved before securing any conviction. Depending on the activities performed by the fake account holder, any of the above criminal provision may be attracted.

I hope that the above shall help you to fix your next course of action. As a first step, you should report the account to the facebook administrator and may decide to lodge a GD before the police station

For detailed query contact omar@legalcounselbd.com