A plot to mute marginalized voices online

Public delivery is key for any government to survive in people’s sentiments. If there is no delivery by the government or if it disrespects people’s aspirations, public anger against the government rises. People may be forced to use online or offline sources to express their dissatisfaction. In this hyper-connected world, the internet is a powerful means to amplify public frustration through videos or text on various social media platforms. When public frustration multiplies with the help of the internet and social media, the government typically feels threatened and may attempt to curtail it. Countering opinions expressed on social media by the government is common these days. Even in full-fledged democracies, governments often justify such actions in the name of national security. However, there is a thin line between national security and public expression. That said, in a democratic setup, the right to express and learn from differing opinions is fundamental to democracy.

Concern over Social Media Bill

Considering these powerful features of social media, the Nepal government is planning to table a bill aimed at curtailing rights and freedom of expression online. There are many disagreements regarding the provisions of this bill. A study carried out by the Dignity Initiative (DI), an emerging Dalit Think Tank in Nepal, highlights that some provisions are intended to silence the voices of Dalit, women and marginalized communities. As we know, Dalits in Nepal have historically been excluded, oppressed and have had limited access to mainstream media. Social media platforms have become a powerful tool for expressing opinions, sharing thoughts, voicing dissatisfaction and fostering public discourse against the discriminatory caste system. If such a bill comes into effect, it will likely roll back the progress made in amplifying the voices of these people. 

Several policies and directives already exist to regulate social media, including the Electronic Transactions Act, 2008, the National Penal Code, 2017 (Prohibition on disclosing confidential matters-Section 294, Prohibition of taking and disfiguring photographs of any person without their consent-Section 295, Prohibition of breaching privacy through electronic means-Section 298, Prohibition on committing libel-Section 307), the Copyright Act, the Social Media Management Directive, 2023, a Regulation to Regulate Advertisements, 2020, the National Cyber Security Policy,2023, the Social Media (Usage and Regulation) Bill, 2023, and the Information Technology and Cyber Security Bill, 2024.

According to Santosh Sigdel, who is associated with Digital Rights Nepal, new legal frameworks for regulating social media are currently being discussed by the government. The government has already implemented the “Guidelines for Regulating the Use of Social Media, 2023” and now aims to develop a more comprehensive “Social Media Act.” The Ministry of Communications & Information Technology has called for public responses (allowing just 15 days) to the draft bill introduced in Dec-Jan 2023. By providing only 15 days for public response, the government intended to limit the broader consultative process among concerned stakeholders, thereby avoiding major comments and feedback. 

The proposed bill aims (claim made by the government) to promote the safe, dignified, and orderly use of social media, addressing issues such as cyber-bullying, hate speech and misinformation. The bill seeks to define terms like “social media,” “social media platform,” and “cyber-bullying” and emphasizes the healthy use of social media to enhance social harmony and good governance. Further, the bill includes establishing a Social Media Management Council alongside other bodies like the Department of Information and Broadcasting, the Press Council and Nepal Police to oversee content regulation and address grievances. As we already have several bodies in place, the addition of another council could jeopardize the effective functioning of the organization due to a lack of inter-agency coordination. In Nepal, we are already facing this issue, with the coordination between the federal and provincial government structures being a prime example. Therefore, the government should not only propose additional bodies but also clearly define the concrete duties, responsibilities and powers of these bodies.

However, this proposed bill has faced significant criticism, particularly regarding its real intent and public dissatisfaction over unnecessary restrictions on freedom of expression, communication rights, and the right to privacy. There is also concern that the bill could lead to censorship, excessive executive power and restrictions on online anonymity. The government's aim to impose over-regulation on the internet and social media networks could limit access to the internet. Furthermore, the bill is silent on the protection of users' data and does not mention a statute of limitations, leading to potential legal challenges that could hamper its effective implementation. Ultimately, this proposed social media bill raises vital questions about its impact on fundamental rights and its potential to violate the constitutional principles of Nepal.

Impact on marginalized communities 

When the government attempts to implement repressive policies to limit online freedom of expression, marginalized communities, including Dalits and women, will be among the most affected. Traditional media are controlled by elites and often disregard the voices of marginalized communities. However, with the rise of social media, people from oppressed classes have found a better way to express their concerns without fear. Social media restrictions are also detrimental to companies, as they can reduce customer engagement and harm the revenue base of these companies. This is an era of government facilitation and de-regulation.

Moreover, in line with the rights of marginalized communities to online freedom of expression, it is important to ensure their dignity so that they are not humiliated, discriminated, harassed, or bullied based on their surname, religion or gender. We need content moderation and monitoring on these aspects rather than a blanket approach to content surveillance. The bill should ensure that digital platforms or social media do not become platforms that intensify discrimination against particular caste, ethnic or gender groups. 

The question of inclusivity is paramount in the overall implementation of social media strategies, involving users, government and digital platforms. From a user’s perspective, there is an urgent need for digital literacy to enable marginalized people to safely express, share and learn from the various opinions circulating on the internet. However, limited digital literacy sometimes presents significant challenges; the marginalized communities may become trapped in the vast network of misinformation and disinformation. Despite this, social media remains a powerful tool without gatekeepers, especially for bringing out the voices of marginalized communities. 

Way forward

Any social media regulation or digital media policies should ensure the right to freedom and the right to live with dignity for marginalized communities. Underlining this fact, DI, in its report, has proposed several recommendations for improving the functionality of social media in Nepal for a positive cause. First, by abiding by international best practices, Nepal can align with the UN Guiding Principles on Business and Human Rights and the Manila Principles on Intermediary Liability to develop a comprehensive regulatory framework that respects human rights (by focusing on marginalized communities). Secondly, a Principal-Agent Relationship model can be implemented, where the government allocates the power to regulate social media platforms based on clear delegation mandates and control mechanisms. Thirdly, a Public-Private Partnership approach, in which social media platforms develop their guidelines, content moderation standards and other regulatory mechanisms, can lead to better coordination between self-regulation by companies and local regulations. Fourth, there is a need for Transparency and Accountability for social media platforms to provide insight into content moderation practices and decision-making processes. Additionally, a Child-Centric Approach should be adopted, aligning with the UN Best Interests of the Child principle, to ensure protection from harmful content when preparing social media regulations. Furthermore, periodic reviews and modernization of existing legislation should take into account international best practices and technological advancements. Lastly, regional cooperation with neighboring countries and regional organizations is essential for facilitating information sharing and harmonizing regulations for cross-border content issues.