A society that restricts freedom of expression cannot be democratic. True, even in a democracy, you cannot say anything you want. Yet this bar is something set by freely interacting individuals. Whenever governments have tried to arbitrarily set limits on free speech, it has inevitably been for their political benefit, and not for the benefit of the larger society. For once you start setting these limits, it is hard to know where to stop. The federal government in Nepal is thus on a slippery slope.
A slew of bills now in the federal legislature sets a low bar on freedom of expression. If these bills are passed, just about anything written in newspapers or posted online may be deemed problematic, and the content-creator be made liable to the harshest of punishments: 3-5 years of jail or up to Rs 1.5 million in fines.
Under far more permissive laws, many Nepalis have already been arrested for their social media posts that in one way or other were critical of those in the government. There was no need for these new bills.
Federal upper house National Assembly member Prakash Panta says that with the help of new laws the government could directly interfere with people’s privacy. “Government agencies can even listen to [phone] conversations between couples,” he cautions. Social media restrictions could be especially problematic for the young generation who like to freely express themselves on digital platforms. Many of them may have no idea they are committing a crime. They are not amused. Says 20-year-old Prastuti Bhattarai: “Those in the government should seriously get a life instead of behaving like aunties of our community who gossip about things like who someone is talking to, what they are doing, and who are they roaming around with.”
With the proposed laws still in their formative stage and many of their likely targets potentially unaware of their restrictive provisions, the government may not face much of an opposition initially. But when people start realizing its true intent, there could be a harsh backlash.
Concerns grow as new bills tabled to curtail freedom of expression
Some provisions of the Nepal Special Service Bill allows the National Intelligence Department (NID) to intercept intercept phone calls, record videos, and track emails of ordinary citizens. As the NID is under the Prime Minister’s Office, such provisions are likely to be used against political opponents. More than that, it violates citizens’ privacy rights ensured by the constitution
The preamble of the constitution guarantees ‘full freedom of press.’ The national charter also ensures freedom of opinion and expression as the fundamental rights of every citizen.
But at least three bills that are being deliberated in the House of Representatives and the National Assembly of federal parliament clearly go against these constitutional provisions by making it difficult for both the media and the ordinary people to exercise the right to freedom of opinion and expression.
The fact that sections of the three laws in the making—the Information and Technology Bill, the Media Council Bill, and the Nepal Special Service Bill—contradict the country’s constitution has invited concerns and criticism from multiple quarters.
Some provisions of the Nepal Special Service Bill allows the National Intelligence Department (NID) to intercept phone calls, record videos, and track emails of ordinary citizens. As the NID is under the Prime Minister’s Office, such provisions are likely to be used against political opponents.
More than that, it violates citizens’ privacy rights ensured by the constitution. Article 28 of the constitution says: “The privacy of any person, his or her residence, property, document, data, correspondence and matters relating to his or her character shall, except in accordance with law, be inviolable.” If the new law is passed, government agencies will have sweeping powers to look into an individual’s document and data.
Timing and intent
When it comes to intercepting phone calls, a former senior official at the NID says that there is international practice of intercepting calls of suspicious persons with terrorist links.
“In our case, it could be used in criminal activities. But there is high chance of such provisions being used against political opponents as well,” he says. He further says the NID has never intercepted phone calls. “This is going to be the first time it is being practiced in Nepal. The question is over the intent,” he added.
Says National Assembly member Prakash Panta, “This act permits direct interference in people’s privacy. Now government agencies can hear conversations between couples. Emails sent by journalists to their editors will be tracked by government agencies, which could result in pre-censorship.”
After endorsement from the National Assembly, the bill will be forwarded to the House of Representatives for final approval.
Similarly, the Information Technology Bill, which was endorsed by the Development and Technology Committee of the House, has several provisions that constrain people’s rights to freedom of speech and expression.
Now, the bill will be tabled in full House and is likely to be endorsed as the ruling party has the numbers required. With objection from various quarters, the bill was referred to the committee to incorporate public concerns. But no change was made. The bill, if endorsed, will replace the Electronic Transaction Act that was promulgated in 2008, section 47 of which was often invoked to detain journalists.
The new bill provides for fine of up to Rs 1.5 million and/or five-year imprisonment for individuals who post contents that sexually ‘harass, bully or defame others.’ Regulation of social media remains a widely discussed issue in European and western countries. In South Asia, such laws are perceived to be guided by an intention of suppressing individual’s right to freedom of speech and expression.
“It seems that political interest was dominant while these laws were formulated to restrict social media. They want to silence the views of the people who criticize the government,” says Tara Nath Dahal, former chairman of the Federation of Nepalese Journalist (FNJ).
The National Assembly is deliberating the Media Council Bill to replace the current Press Council Act, 1990. It also has provisions to restrict freedom of speech and expression. “If the Media Council Bill is endorsed as it is, the press council will be like a division of the Ministry of Information and Technology,” Dahal adds.
The FNJ had launched a series of protests against this bill, and the ruling Nepal Communist Party leaders had pledged to address the FNJ’s concerns. But there has been no progress.
The media fraternity has been condemning the government’s lack of commitment to freedom of speech and expression. The Supreme Court, which is mandated to interpret the constitution, could questions such contradictory laws. But the court’s constitutional bench that is to look after these issues does not seem to care. The FNJ has taken serious exception to the Media Council Bill. “In the past, ruling party leaders have signed agreements with us not to bring laws compromising press freedom. But the government has often gone back on its own words,” rues Ram Prasad Dahal, secretary at the FNJ. “We are consulting various sections of the society about protesting against those laws.”
International organizations working on media freedom have said that the Information Technology Bill undermines freedom of expression.
“The controversial bill—passed by the Development and Technology Committee of the House of Representative (HoR) on December 29—threatens freedom of speech online. Among the concerns expressed by Nepali journalist organizations are that it includes provisions to impose fines of up to Rs 1.5 million (over 10.000 €) or jail terms up to five years for posting content on social media that in the eyes of government may pose a threat to the country’s sovereignty, security, unity or harmony,” according to the International Federation of Journalists (IFJ).
The bill, if enacted, would replace the existing Electronic Transaction Act that too has been widely misused to arrest and harass citizens for their social media posts. “According to the cybercrime cell at Nepal Police, 106 cases were filed in the Kathmandu Valley in the last three years for ’illegal’ posts on social media. This apart, the bill provides for far tougher punishments for committing the same offense on the internet than in person,” the FNJ said.
Gokul Baskota, Minister for Communication and Information Technology
The Information Technology Bill is aimed at stopping cyber bullying. It will help maintain social discipline. Freedom does not mean a society without reasonable restrictions. The provisions are also intended at bringing various social media sites under the tax net.
Anushtup Sherma, 21,
“If someone can see the messages I send over social media platforms, I would contact the police. But if the government itself is involved, what I can do except stop using those platforms? Bringing such restrictive bills is against our fundamental rights.”
Aayuska Shrestha, 19,
“There should be a system to notify the government if something suspicious happens in social media and investigation conducted accordingly. This will help maintain right to privacy. The government should look to protect people’s privacy as well as to punish criminals.”
Isha Thapa, 20,
Student, and actor at Fun Revolution TV
“This is the age of democracy and technological advancement. People have changed over the years. They are now more aware about their rights, and can think on their own. So it won’t be easy for the government to pull off this kind of dictatorial trick.”
Susan Chaudhary, 19,
“I don’t have any problem if the government uses my personal info for some investigation with my consent. I will not accept if they use it for third party advertisement or any other unspecified purpose. If the bill is implemented, people will start speaking carefully.”
Saurav Thapa Shrestha, 23,
General Secretary at Yuwa, a youth-related NGO
“The policy should clarify that whatever I send and receive on social media can be seen only when the content is fishy or for some criminal investigation. But that needs to be done with our permission. There is no clarity on “hate speech”. They must sit with the relevant stakeholders before they finalize and pass the IT bill. Clarity is a must.”
Samiksha Shrestha, 19,
“It’s okay to bring the law to control online contents used to sexually harass, bully, or defame others, and to punish those who are involved. But the same law should not penalize users for their private online posts. This will curtail their freedom of speech and right to privacy.”
Tebrej Siddiqui, 19,
“The government should check only suspicious messages. Beyond that it will be difficult to survive as our right to privacy will be violated and we will no longer feel safe.”
Sumikchya Shakya, 19,
“Though this bill can control cyber-crimes, I see many drawbacks as personal data will not remain private. People can misuse this bill for their interest. I am against it.”
Prastuti Bhattarai, 20,
“I have been following news on this new bill, and I’m disappointed. I do not trust the government with my privacy and my information, and I’m sure most Nepalis feel like I do. For instance, I might share my ATM PIN number with my parents in social media and there is no guarantee that people in authority will not abuse the information. Instead of eavesdropping on someone’s private life, the government should focus on infrastructure development. Those in the government should seriously get a life instead of behaving like aunties of our community who gossip about who is someone talking with, what they are doing, and who are they roaming around with.”