SEXTING

Published By The Daily Star on August 20, 2013 (Link Above)

This week Your Advocate is Barrister Omar Khan Joy, Advocate, Supreme Court of Bangladesh. He is the head of the chambers of a renowned law firm, namely, ‘Legal Counsel’, which has expertise mainly in commercial law, corporate law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies.

Query
I am a girl of 22 and studying in a reputed private university in Dhaka.  Recently I am quite disturbed with the activities of my friends who are used to make obscene photos and sexually implicit jokes and materials by SMS and MMS.  Some of them are sending semi-nude photos of their own. Few of my female friends are also happily participating! In a country like Bangladesh, I am sure it is not lawful.  When I objected, there were different reactions.

While, some took it seriously and stopped sending me anything, few of them tagged me as ‘backdated/un-smart’. But, unfortunately some just continue to send me such things.  In this regard I need legal advice to address the matter in a stronger manner.

Meera

Response
Thank you very much for your query. Yes, you are very much correct to say that the activities performed by your friends are not at all permitted within the legal framework of Bangladesh. It goes without saying that these are certainly also against our social and cultural values. Such activities are not only condemned in Bangladesh as illegal, the same are also considered as illegal within western liberalism, in countries like the USA, UK, Australia etc.
These activities are termed as ‘sexting’ in contemporary English, though the wording has not yet been adopted by the legal draftsmen. As per Wikipedia, ‘Sexting’ is the act of sending sexually explicit messages and/or photographs, primarily between mobile phones. The term was first popularized in early 21st century, and is a portmanteau of sex and texting, where the latter is meant in the wide sense of sending a text possibly with images. In August 2012, the word sexting was listed for the first time in Merriam-Webster’s Collegiate Dictionary.
In Bangladesh, such activities may attract violation of different legislations and the violators may face conviction and may be ultimately send to prison. Hence the matter is not at all something to be taken lightly. Your friends should realize that if someone takes it really seriously and files a complaint with the law enforcing agencies, they are very likely to be convicted with criminal offences. To prove of the offence will also be relatively easier as because of the technological records. You will find below a synopsis of the possible offences by your mates.

Penal Code, 1860
* Section 292: Distributing or in any manner circulating (even in private) any Obscene Material (includes SMS and MMS etc) is a crime punishable up to 3 months imprisonment and/or fine.
* Section 294: Doing obscene act or signing or reciting obscene songs, ballad or words to the annoyance of other in a public place is a crime punishable with up to 3 months imprisonment and/or fine.
* Section: 509: Uttering words or making sound or gesture or exhibiting objects (e.g. photos send in MMS) with intent to insult the modesty of a woman or intruding upon the privacy of a women is a crime punishable with up to 1 years imprisonment and/or fine.
* Bangladesh Telecommunication Act, 2001
* Section 70: A person commits a crime, if he repeatedly makes telephone calls (this shall include SMS and MMS), through cell phone or fixed phone, to another person, which annoys or causes inconvenience to that person and shall be liable to pay up to TK 25,000.00 and in case of default imprisonment for up to 3 months.

Pornography Control Act, 2012
* As per the definition of Pornography under the 2012 Act, sexting is certainly considered as pornography.
* Section 4: As per section 4, no one can produce, distribute, preserve, store, market, carry, buy or sale any pornography. The person, who produces the pornography, will be fined with maximum BDT 200000 and imprisoned up to 7 years, while the person who circulates the same will be fined up to BDT 200000 and imprisoned up to 5 years.

Information and Communication Technology Act, 2006
* The activities stated by you may also attract section 57 of the 2006 Act and the violator may be liable for fine up to BDT 10000000 and imprisonment up to 10 years.

In the light of the above, I am sure that you will be able to realize the gravity and seriousness of the illegality. You should advise your friends accordingly and warn them that they may put themselves into serious peril at anytime by continuing with such activities.

For detailed query contact: omar@legalcounselbd.com.