The KP Sharma Oli administration’s decision to implement new legislation in Nepal aimed at controlling social media has encountered strong backlash, as supporters of free speech caution about significant risks to freedom of expression within the nation.

Communications and Information Technology Minister Prithvi Subba Gurung submitted the “Bill Concerning the Operation, Use, and Regulation of Social Media in Nepal” to the Upper House of the Federal Parliament on Jan 28, which has created controversy, with opposition parties such as the CPN (Maoist Center), journalist organizations, and civil society groups fiercely opposing it. 

The intended Bill aims to ensure that the operation and use of social media platforms are organized, safe, and systematic. Additionally, it aims to regulate these platforms by making both operators and users responsible and accountable “to foster social harmony and cultural tolerance.” 

Several aspects of the law are in conflict with Nepal’s constitution, and the use of ambiguous and incomplete terminology raises issues. Critics believe the government will use these loopholes to interpret the legislation in its favor. 

Another significant issue is the government’s direct participation as the plaintiff in all related cases, which gives authorities more power over how the law is defined and enforced.

Constitutional conflict over the Media Council Bill

The bill directly contradicts Articles 17 and 19 of Nepal’s Constitution. Article 17 preserves the right to freedom, declaring that “no one shall be deprived of personal liberty.” However, the bill goes beyond limiting personal freedom; it deliberately penalizes individuals for posting, sharing, liking, reposting, live streaming, subscribing, commenting, tagging, using hashtags, or referencing others on social media. 

Section 16(2) of the bill expressly forbids anyone from engaging in certain actions with malicious intent: “One must not post, share, like, repost, live stream, subscribe, comment, tag, use hashtags, or mention others on social media with malicious intent.” While the bill expressly criminalizes like or commenting, it fails to define “malicious intent,” making its interpretation problematic. Because the bill does not define the term’s scope or meaning, anyone charged under this clause could simply say, “I had no malicious intent,” making enforcement arbitrary and subjective.

The bill establishes a loophole through which government officials could potentially dodge accountability. If they violate the bill’s requirements, they can claim, “I did not act with malicious intent,” when the clause is triggered. It is uncertain whether they can evade blame.  The bill also has a provision for a fine of up to Rs 500,000. 

Furthermore, “ 19 of Nepal’s Constitution’ guarantees the right to communication, stating, “no prior censorship of publications and broadcasting, or information dissemination, or printing of any news item, editorial, article, feature, or other reading material, or the use of audio-visual material by any medium, including electronic publication, broadcasting and printing.”

Article 19(2) clearly states, “If there is any broadcasting, publishing or printing, or dissemination of news, article, editorial, feature, or other material through the medium of electronic equipment or the use of visuals or audio-visuals, no radio, television, online publication or any kind of digital or electronic equipment, or press, or other kind of media outlet, shall be closed, seized, or their registration cancelled for publishing, or transmitting, or broadcasting such material.”

However, the bill infringes this fundamental guarantee. Section 16(1)(a) of the bill recommends penalizing individuals for trolling photos. Where is the freedom to communicate?

Section 20 of the bill prohibits the release of confidential information, which is even more reprehensible. It will keep government defects, shortcomings, and pressing issues such as corruption, commissions, and bribery classified and concealed. If a journalist uncovers and exposes such information, they may face sanctions. This appears to be a clear implication. The government’s intention may be to conceal its weaknesses. It may seek to prosecute anyone who reveals such information.

The bill’s theoretical notion claims to “ensure the freedom of thought and expression as a fundamental right while safeguarding communication and confidentiality rights in electronic media,” however the reality appears to contradict this.

Malicious government intentions

Social media must be regulated in a number of areas. The bill does not simply contain negative provisions. However, the provisions described above violate citizens’ (users’) rights to free expression, privacy, and communication.  Furthermore, it appears that the government is contemplating using the social media bill to silence and punish its critics. Section 28 of the bill discusses the concept of “metered punishment.”

Section 28(2) of the bill specifies that “any offender who commits an offense more than once under this Act will receive double the penalty for each subsequent offense.” This means that the punishment will compound and escalate with each transgression of law. The bill appears strange. This is why many people have questioned the purpose of its construction. The punishment provisions are incredibly strange.

Is freedom of expression truly free?

In Nov 2024, freedom of expression on social media and the right to talk without fear of repercussions from the state became even more apparent. The event involving Ratan Karki, a Nepali student in Japan, demonstrated this even more clearly. Karki shared a contentious video on TikTok.  Although he made the video for fun, it might readily be believed that it was directed at the Prime Minister. Nonetheless, it was interpreted as a threat. 

Despite the fact that the video was intended to be a joke, officials are believed to have taken quick legal action. The fact that the state has issued an arrest warrant through Interpol in response has sparked interest. This demonstrates that even lighthearted disagreements can entail major risks. Similarly, Mohammed Zubair, a journalist and co-founder of Alt News, was arrested in India, highlighting the dangers that online activists and journalists confront. He was arrested for tweeting a criticism of the government and charged with “hate speech.” He had simply revealed misinformation. 

Nonetheless, he faced legal consequences. His detention and following legal battle have underlined the risks of criticizing the government under one’s true identity. It emphasizes the importance of using pseudonyms to defend one’s freedom of expression.

Is the role of government to ensure security or to stifle dissent?

The Social Media Bill is intended to protect users from cyberbullying and bogus news. However, it may accidentally silence the views of activists, marginalized groups, and people who use pseudonyms or anonymous IDs for personal security.  The bill’s broad and imprecise language, which might be used as a weapon against people who oppose the government, threatens silencing already vulnerable groups. This bill could make things much more dangerous for people who are already subjected to prejudice, abuse, and violence. It could also be used as a weapon by the government to crush dissent in the name of national security and integrity. 

Instead of providing a secure and open digital environment, such a legal system may exacerbate power disparities, pushing people from violent areas to keep silent or fight underground. While the government’s concern in combating misinformation is understandable, the extent of the measure raises serious concerns. That is, “Who is the government afraid of introducing this bill?”

If the bill is intended to safeguard citizens from dangerous content, why does it target those who use pseudonyms or false identities, particularly activists fighting for underprivileged communities?

Conclusion, in the digital age, where personal and collective identities are rapidly being formed online, the right to anonymity is critical for individual privacy and security. Nepal must acknowledge the value of this right and keep digital spaces accessible, inclusive, and free of surveillance and censorship. We must prioritize protecting the voices of the most vulnerable, those who use pseudonyms to express their opinions, campaign for change, and fight for their rights.