Emancipate the social networks: Avoid arbitrary control

While Nepal is already seen as a less lucrative market for social network giants, administrative hurdles will only discourage them from expanding their services here. Also the provision will give the government a free hand to block any social network

Illustration: Ratna Sagar Shrestha/THT

Ever since the Information Technology Bill, 2019 was registered in the House of Representatives by the government on February 14, there have been debates regarding various provisions in it and its side-effects, notably with regard to its provisions which allegedly chain the social networks.

The Constitution of Nepal has guaranteed freedom of opinion and expression as a fundamental right under Article 17(2)(a), whereas proviso 1 of Article 17 (2) has prescribed six grounds under which such freedom could be restricted. They are: a) for sovereignty, territorial integrity and independence of Nepal; b) for harmonious relations between federal units, and people of various castes, tribes, religions or communities; c) for public decency and morality; d) to prevent the contempt of court; e) to prevent defamation; and f) to prevent incitement to offence, caste-based discrimination or untouchability, and disrespect of labour.

The prevailing Electronic Transactions Act, 2006 prescribes some restrictions on the freedom of opinion and expression on the grounds provided by the constitution.  On the other hand, Section 94 (1) of the Information Technology Bill, which will replace the Electronic Transactions Act, 2006, attempts to put restrictions on freedom of opinion and expression in the social networks, under the five broad heads: (a) for content against the sovereignty, territorial integrity, national security, national interest, national unity, harmonious relations among the federal units, harmonious relations, tolerance and esteem on ethnical, regional, communal, religious issues and other issues, and also that incites crime, caste-based discrimination, untouchability, and jeopardise peace and order, disrespects labour, and is against public morals and integrity;

(b) For content intentioned to criticise, discourage, vituperate, and cause deceit, hate and contentions; (c) for content that amounts to character assassination, libel and slander; (d) for any act against the same proposed Act; and (e) for the publication, broadcast and exhibition of advertisements and sale of prohibited materials.

The aforementioned first head is in line with the reasonable restrictions on the freedom of opinion and expression provided by the constitution. The second, third and fourth heads seem to be vague and allow maximum discretion in the hands of the authorities, which may upset the balance between the rights and reasonable restrictions, whereas the fifth head has been already covered in the Consumer Protection Act, 1998.

Most of the heads provided in Section 94 (1) may be challenged for its legality because of its vagueness. Reference may be taken from the Indian Supreme Court’s judgement in Shreya Singhal v. Union of India, where the court struck down Section 66A of the Indian Information Technology Act, 2000, which provided punishment for sending offensive messages through communication service, observing that the said section was arbitrary, excessive and was disproportionately invading the rights of free speech. Referring to the Singhal case, we may conclude that most of the heads under Section 94 (1) of the Bill apparently appear to be expanded restrictions, and are too wide in scope.

Similarly, Section 92 and Section 94 (2) of the Bill has also raised many eyebrows as it empowers the proposed Department of Information Technology to issue a directive to any social network operator to remove or cause to remove the content, if it violates Section 94 (1) or other provisions of the Bill.

This provision enables the government to have direct control over the social networks. In this context, a court order should be required to remove or cause to remove any content to discourage the government’s control over contents in the social network.

Furthermore, the test of violation of Section 94 (1) or other provisions requires proper test of the facts and laws, which is better done by a judicial authority rather than by an administrative body like the proposed department.

It is also difficult for an administrative body to examine the technical aspects of the content – such as its standards, effects on ordinary users, content’s specific and verifiable form and its socio-linguistic context.

Section 91 of the Bill has also raised suspicions because it empowers the government to block social networks if they are not registered in Nepal. It is, however, yet to be understood if certain unreasonable restrictions will be imposed during the registration process or not.

While Nepal is already seen as a less lucrative market for social network giants, potential administrative hurdles will only discourage them from expanding their services to Nepal. Also the provision will give the government a free hand to block any social network, at any time, which today is also a forum to express opinions.

It is true that free speech means the freedom governed by law; however, governments around the world misuse the law to deter critics of the establishment. The restriction on free speech should be imposed only in line with the constitutional norms, and should avoid arbitrary, excessive and
disproportionate invasion of the rights.

Otherwise, the restriction may invite various other legal and practical problems related to civic rights and democracy.

Chhetri is a lawyer

 

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