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In November 2016, journalists Santosh Kumar Yadav and Arjun Thapaliya of Siraha-based Anukalpa daily were booked by the police under the Section 47 of the Electronic Transactions Act (2006) for defaming — or spreading hate and jealously against — Dev Kumar Yadav on Facebook. The crime, according to the police, was that Santosh Yadav had posted on his Facebook wall the photographs of an Anukalpa article alleging Dev Kumar of sexual harassment. Thapaliya had shared the post.
Yadav and Thapaliya were acquitted on 6 July by the Kathmandu district court because, the court said, electronic reproduction of a registered publication like Anukalpa is not illegal. While the detailed write up of the verdict is yet to be released, it is clear that efforts to intimidate and control the press and citizens for their online activities have hit the judicial wall.
What does this mean in terms of what can and can’t be said online?
The court has recognized that posting, sharing or showing support (eg. by ‘liking’) for anything that was first published in a legal platform — a registered magazine, FM station, or a news website — is not a cyber crime. If a complaint has to be made, it has to be against the creators of the content. The court verdict, however, does extend to self-published materials in Facebook, blogs or any other websites not registered with the government.
Government misusing the law
The Electronic Transaction Act was never meant to regulate speech online. It’s created to regulate electronic transactions — eg. for financial institutions, ATMs, online database, payment systems and punish wrongdoers. But as Yadav and Thapaliya’s case indicate, the Act has become an easy way for the authorities to bypass existing protections of freedom of speech in Nepal. The standard course of action against unethical postings online is to register a complaint at the Press Council, and, if the decision there is not satisfactory, appeal to the courts. But Nepal Police prefers harder ways. Using Section 47 of the Electronic Transaction Act, Nepal Police simply picks up the accused for a criminal offense and ships them to Kathmandu, since there is no cyber cell outside the capital.
The Section 47 of the Act prohibits electronic publication or display of things deemed illegal according to existing laws. In addition, just as in the vaguely worded reasonable restrictions to free speech in the Constitution, it bans putting out material “contrary to the public morality or decent behavior... which may spread hate or jealousy against anyone or… jeopardize the harmonious relations” among communities. The clause is so vague that anyone can be charged for posting anything controversial.
The law therefore allows the authorities to settle scores with uncooperative journalists, as was the case between editors of Anukalpa and the Siraha Superintendent of Police who was unhappy with the criticism of the district’s police. In fact, the law mimics the flimsy protection the constitution provides to free expression.
But what if you’re not a journalist or if you’ve not shared a media story, but only expressed criticism of a government body or a public figure?
Evidence suggests that you could still be charged with violating the Act, especially if the police sense that you are an easy target. In May 2014, Saptari’s Abed El Rahman was arrested and charged after 18 days in custody under the Act for posting a Facebook comment on photo of a newspaper article, where he accused the district police of corruption. He too was found not guilty.
Nepal Police likes the Act because it helps speed up cases. Bhakti Raj Ghimire, a lawyer who defended Anukalpa’s editors, points out that cyber crime laws are inappropriately applied to libel and defamation cases. This is a common tactic. For example, the police also uses fraud laws in unwarranted cases, like that of bounced checks, for increasing the speed of and resources for investigation and prosecution. When arrested under stronger charges, whether cyber crime or fraud laws, keeping suspects in custody for a few extra days is easy, and chances of intimidation high.
So should you worry about critical posts on your Facebook or Twitter walls leading to an arrest? The signals are mixed. Court decisions regarding publishing and sharing online journalism has been encouraging. At the same time, the government seems unfazed by these decisions, and we’re likely to keep seeing people arrested arbitrarily. The written verdict of Anukalpa editors, out in a few weeks, might prove to be an important document in this regard.
The bottom line is that there is limited, and unclear, freedom of speech online. This contravenes the accepted principles of free speech. As long as the Section 47 stays in the books you are always in the danger of being dragged into the legal net. And if you’re from outside Kathmandu or don’t have friends in high places — whether a journalist or not — it will be that much easier for the cops, and that much more difficult for you.
In case you do get arrested, have someone contact organizations that work for freedom of expression, like Freedom Forum or Amnesty. If you get a lawyer, make sure they’re aware of recent court decisions in defendant's favour. Your best bet is to show that use of cyber laws to tackle such a case is excessive. And yes, make sure you get your friends, family and acquaintances to spread the word about you, online and offline.
Cover illustration: Paul Aitchison.
Shubhanga Pandey Shubhanga Pandey is a Kathmandu-based journalist who writes on politics and culture. His work has appeared in Himal Southasian, Jacobin, The Caravan, among others. He tweets at @shubhangap.
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