KATHMANDU, Feb 8: The government registered the "Bill on the Operation, Use, and Regulation of Social Media", popularly called Social Media Bill in the National Assembly on January 28.
Mired in controversies, the bill has justifiably invited ire from political parties, civil society groups, journalists’ organizations, social media influencers and a growing majority of the general public.
Accusations are floating, ironically, on social media platforms, that the government is attempting to curb the general public’s freedom of expression through the bill by imposing hefty fines and significant jail terms on loosely defined, largely ambiguous charges.
While the definition of many terminologies used in the bill is contentious, so is the bill itself, for a number of provisions in the bill have been claimed to be against the constitution.
While the public dissatisfaction, made apparent by the trending hashtag of #BolnaDeuSarkar, grows for it, the bill in itself does offer some positive changes to the country’s laws.
Here is Republica’s explainer about a number of aspects of the controversial Social Media Bill:
The Good
You might not believe it, but it is true: the Social Media Bill has some provisions, albeit in miniscule count, that will possibly have positive impacts on Nepal’s laws.
The country’s laws on cybercrimes have been a laughing stock for years now. Basically, cybercrimes have never been defined stringently in any laws. On the other hand, cybercriminals face charges under the ‘Electronic Transactions Act 2008’. Experts have continuously ridiculed the lack of ‘electronic transactions’ in some cyber crimes, many of which did not even exist when the law was implemented.
Enter Social Media Bill
A number of clauses in the bill have been dedicated to the definition of cyber crimes. For example, clause 20 sets a definition for cyber stalking, clause 22 defines cyber phishing and imposter scam, clause 23 defines sextortion and extortion, and clause 26 defines deep fake multimedia.
While the nature of penalty for each of these crimes have been under scrutiny of the general public, the specific definition of crimes helps the security agencies, lawyers and courts alike in determining the crimes specific to the laws.
Gone will be the days when the police press charges against cyber criminals under the Electronic Transaction Act. Instead, they will face specifically determined charges under the Social Media Bill.
The Bad
Some provisions of the Social Media Bill have entered the fray of public discourse as the topic of debates. The general public seems to have their opinions divided on whether some of the clauses help strengthen cybersecurity in Nepal or curb freedom of expression of the people.
The debate seems to be heating up specifically on clause 12 (H) which requires the users of social media to ‘reveal their identity to the social media platforms in order to use the platform’. A section of the general public is hailing this clause as a step to ensure accountability for the effect of public opinions shared on social media while others are criticizing it for raging head-on against the people’s right to privacy.
Similarly, Clause 12 (J) has divided opinion on whether it infringes on freedom of speech, privacy, and the right to communication. The clause states, "For the purpose of investigating or inquiring into a crime, the details of a social media user must be provided to the concerned authorities."
This means that the user's privacy will not be safeguarded. The user will be required to submit all their data to the relevant regulatory body. Failure to comply could result in a penalty ranging from Rs 2.5 million to Rs 10 million.
The Ugly
Several provisions in the bill contradict Nepal’s constitution, while vague and incomplete terminologies raise concerns. Critics fear the government will exploit these loopholes to interpret the law in its favor.
Another major concern is the government’s direct role as the plaintiff in all related cases, giving authorities greater control over how they define and enforce the law.
The bill requires a Rapid Response Team to handle such proceedings. Typically, authorities form these teams when immediate action is needed in the public interest, such as during natural disasters. However, the government has introduced a provision to create one specifically for this purpose.
Anti-constitutional bill
The bill directly violates Articles 17 and 19 of the Constitution of Nepal. Article 17 guarantees the right to freedom, stating, "No person shall be deprived of personal liberty."
However, the bill does more than restrict personal freedom—it actively penalizes individuals for posting, sharing, liking, reposting, live streaming, subscribing, commenting, tagging, using hashtags, or mentioning others on social media.
Clause 16(2) of the bill explicitly prohibits individuals from engaging in these activities 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 clearly criminalizes liking or commenting, it fails to define "malicious intent," leaving its interpretation ambiguous. Since the bill does not clarify the term’s scope or meaning, anyone accused under this provision could simply claim, "I had no malicious intent," making enforcement arbitrary and subjective.
The bill creates a loophole that allows government officials to potentially avoid accountability. If they act against the bill’s provisions, they can claim, "I did not act with malicious intent," when the provision is invoked. Whether they can escape responsibility remains unclear.
The bill also includes a provision that allows for a fine of up to Rs 500,000.
Where is the right to communication?
Article 19 of Nepal’s Constitution guarantees the right to communication, stating, "No prior restriction shall be imposed on the publication or broadcast of any news, editorial, article, composition, or other written, audio, or audiovisual material through any medium such as electronic publishing, broadcasting, or printing."
Clause 19(2) clearly states, "No newspaper, radio, television, online, or any other type of digital or electronic equipment, printing press, or communication medium shall be shut down, seized, or deregistered, nor shall such content be seized for publishing, broadcasting, or printing news, articles, editorials, compositions, information, or other content."
However, the bill contradicts this constitutional provision. Clause 16(1)(a) of the bill proposes to penalize individuals for trolling images.
Moreover, the term "troll" remains vague. This suggests that the government may exploit the term to protect its officials. The bill does not define the scope or meaning of trolling, allowing government officials to interpret it in a way that benefits them.
Who dares to call out the government?
Clause 20(1) of the bill prohibits the disclosure of confidential information, which is even more objectionable. It will keep government flaws, weaknesses, and urgent issues like corruption, commissions, and bribery classified and hidden. If a journalist uncovers and publishes such information, they could face penalties. This seems to be the clear implication.
The government's intention may be to prevent the exposure of its flaws. It might seek to punish anyone who discloses such information.
Although the bill's theoretical concept claims to "ensure the freedom of thought and expression as a fundamental right while safeguarding communication and confidentiality rights in electronic media," the reality seems to contradict this.
Furthermore, it appears that the government intends to use the social media bill to silence and imprison its opponents. Clause 28 of the bill introduces the concept of "metered punishment."
Section 28(2) of the bill states, "Any offender who commits an offense more than once under this Act will receive double the penalty for each subsequent offense."
This means the punishment will accumulate and increase with each offense. The government currently enforces the directive for regulating the use of social media, 2080 BS. However, some have accused the government of attempting to impose control under the guise of further regulation.