When “cybercrime” laws gag freedom of expression: are we setting a wrong trend?
The freedom of speech and expression is a fundamental right of people, protected by the Nepalese constitution through its Article 17. However, an unwanted expression through the electronic media, here in Nepal can lead to troublesome situations.
A comedian gets arrested under The Electronic Transactions Act, 2008 (hereafter called “ETA”) for posting a satirical video review of a certain movie, a former secretary gets arrested for issuing derogatory comments and remarks against the incumbent government on social media, a journalist is arrested under the ETA for a story about alleged financial fraud and the list goes on.
A number of reporters and editors have been arrested, detained and fined on the issues of cybercrime, since the enactment of Electronic Transactions Act, even though the Act is not related to media or journalists. It comes as no surprise that Nepal ranks in 112th position in the 2020 World Press Freedom index.
The major arrest under the ETA has been pursuant to its Section 47, whereby, publishing any materials in the electronic media which has been prohibited to be published or displayed by the prevailing law or publishing those contents that are contrary to public morality or decent behavior or which may spread hate or jealousy against anyone or which may jeopardize the harmonious relations existing between people of various castes, tribes and communities, along with people committing the offense of teasing, harassing, disrespecting or conducting other similar kinds of immoral activities against women through the electronic media, constitutes the offense of publication of illegal materials in electronic form. Persons committing such offense are liable for fine not exceeding one hundred thousand rupees, or with imprisonment not exceeding five years, or with both. Also, if any person commits such crime from time to time then he/she shall be liable each time for one and half percent of the punishment of the previous punishment.
The vagueness in the words used in Section 47 of ETA such as “morality”, “decent behaviour” has been used time and again to arrest the journalist, comedians or even common people or former bureaucrats who have published something which are even slightly offensive to the government. It has also been used to discourage political commentaries and satirical humor. This kind of use of Section 47 of ETA has been time and again been criticized by journalists as well as concerned representatives of the civil society.
Similar provision in Section 66A of the Information Technology Act, 2000 of India was struck down by the supreme court of India on 24 March 2015, in the case of Shreya Singhal v Union of India, (2013) 12 S.C.C. 73, for being vague and over-board and unconstitutional as it was found to be against the fundamental right of speech and expression guaranteed by the Article 19 (1) (a) of the Indian Constitution.
What was there in Section 66A of the IT Act, 2000?
This Section had provision for punishment for sending offensive messages through communication service, etc, according to which,
“Any person who sends, by means of a computer resource or a communication device,-
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,
shall be punishable with imprisonment for a term which may extend to three years and with fine.”
Section 47 of the Electronic Transaction Act of Nepal bears resemblance with Section 66A of IT Act of India for both being vague and widely misinterpreted, and used in large cases to shut down the opposition voices. The Section 47 of ETA has been used in various unnecessary situations such as in the case of journalists.
The objective of the Act is to make legal provision for authentication and regulation of electronic data rather than providing grounds for rapid arbitrary arrest. Likewise, in a case of defamation through an online news portal or other online platforms, specific laws related to defamation should be used, not the Section 47 of ETA. The Criminal code of Nepal, itself in its Section 306 (3) does not consider the act of publishing truth about a certain person for the public interest, being based on evidence and reason and an act of publishing satirical comments on action, character or conduct of a person with a good intention for promoting public interest, virtue or morality as an act of dishonor or defamation against a person.
The freedom of expression of people is their fundamental international human right. General comment no. 34 of United Nations Human Rights Council on Article 19 (Freedoms of opinion and expression) of ICCPR, to which Nepal is a state party, provides that “mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties, albeit public figures may also benefit from the provisions of the Covenant. Moreover, all public figures, including those exercising the highest political authority such as heads of state and government, are legitimately subject to criticism and political opposition.”
The arbitrary arrest of journalists and social media users for evidence backed peaceful reporting and online expressions should be stopped. These kinds of activities not only threaten the fundamental right of forming opinions and expressions but also jeopardise the right to information of the people. Misuse of such vague provisions in a draconian fashion may promote the practice of news being reported and opinions being expressed to suit a specific propaganda. Interpreting vague legal provisions in a way that promotes a particular interest should be discouraged in a state that promotes rule of law.
The fundamental rights of Nepalese people to peacefully express their views should be protected at any cost. After all, the country has national as well as international obligations to respect and protect the fundamental right to freedom of opinions and expressions of its people, except in the case of national emergencies. However, it should also be noted that freedom of speech and expression is not an absolute right, and there are clear boundaries to the permitted exceptions. Such exceptions should be well spelt out and vague legal provisions should not be interpreted to drag everything into those exceptions.