As proposed by the Khadga Prasad Sharma Oli administration, the new Information Technology Bill 2075 (2018) of Nepal is being dubbed as a legislation designed to control social media and its misuse. The Bill will replace the prevailing Electronic Transaction Act, 2006. It aims to give powers to the Department of Information Technology to impose excessive restrictions on platforms. Civil rights advocates say that the Bill is one of the techniques for the government to control online speech. As the Kathmandu Post reports, it curtails freedom of speech online and increases surveillance of personal data.

Fundamental right to freedom of expression

The Constitution of Nepal guarantees “freedom of opinion and expression” as a fundamental right under Article 17(2)(a). In addition to this, the proviso to Article 17(2) prescribes grounds under which such fundamental right can be reasonably restricted. There are six such grounds listed: (i) “the nationality, sovereignty, independence and indivisibility of Nepal”; (ii) “the harmonious relations between federal units and the relation subsisting among the people of various caste, ethnicity, religion, or communities”; (iii) public decency and morality; (iv) to prevent contempt of court; (v) “an act of defamation”; and (vi) “incite racial discrimination, or untouchability, or disrespects labour, or any act of defamation, or contempt of court, or an incitement of offence”.

Restrictions Social Networks

Chapter 14 of the Bill deals with provisions relating to Social Networks. Section 94(1) of the Bill, attempts to impose restrictions on freedom of opinion and expression in the social network. It provides restrictions on the publication various kinds of content:

  • Undermines sovereignty: “Communicate such content that undermines the sovereignty of Nepal, geographical integrity, national security, national unity, independence, dignity or national interest or harmonious relations between federation and unit doing or causing to do or the incitement or encourage incitement for hatred, enmity or contempt on the basis of class, caste, religion, region, community or any other similar basis or attempt to do so or encourage for the conspiracy to do so.”
  • Incitement to violence: “Inciting the racial discrimination or untouchability, disrespecting the labour, inciting criminal activities, encourage to disrupt peace and order or publishing or transmitting any content prohibited to publish or broadcast by the prevailing law or doing or causing to do any act against public moral.”
  • Communication of threats and abuse: “Communicating any message with the intention of teasing, misleading, insulting, discouraging, threatening, creating hatred and enmity, or confusing the receiver.”
  • Advertising prohibited goods: “Publishing, broadcasting or exhibit an advertisement or goods that is prohibited by the prevailing law for selling or distributing.”
  • Defamatory content: “Without any evidence, performing any act that is realized as curse or disrespect pursuant to the prevailing law with the intention of defaming someone.”

As it is Section 94(1)(a) is in line with the reasonable restrictions on the freedom of opinion and expression provided in the Constitution. Other categories are additional restrictions for which the discretionary powers vests in the authorities. This may exceed the powers provided to an authority under the Constitution and displaces the balance between the rights and reasonable restrictions. Most of the categories are vague in language and in the near future is open to challenge for its legality.

Powers of Department of Information Technology

Sections 92 and 94(2) are two other provisions which raise the concerns that the proposed Bill is restricting the free speech to a large extent. If any content violates Section 94(1), the provisions empower the Department of Information Technology to issue directives to any social network operator to immediately prohibit publishing of all content.

These provisions, in the absence of any checks and balances, are likely to give rise to arbitrary orders to take down or block content. The test of the violation of Section 94(1) requires a test of proportionality and legality, and a degree of judicial oversight, rather than pure administrative authority.

The provisions related to Social Network in the Bill are discouraging for the social media companies and render Nepal a less lucrative investment destination. The potential administrative hurdles in the Bill will adversely impact the Government’s call for investment and its ‘Digital Nepal’ campaign.

It is important that the online space is provided with freedom for a diversity of views and expression, as it serves the citizen as an ideal means of communication. Any restriction on free speech and expression should follow the reasonable restrictions provided under the Constitution. It is recommended the Bill should not retain the vague provisions related to social networks and have specific restrictions on content. Making the law specific and simple will avoid arbitrary, excessive, and disproportionate use of administrative power, resulting in infringing of fundamental rights.