Internet service providers open to criminal liability under new IT bill

Published On: January 7, 2020 07:40 AM NPT By: Republica  | @RepublicaNepal

KATHMANDU, Jan 7: A provision in the Information Technology bill awaiting parliamentary endorsement makes internet service providers (ISPs) open to ‘criminal liability’ if they fail to comply with the order of any public institution or court of law to remove any information stored in their system and deemed illegal.

Two of the four conditions listed in Section 89 of the bill make ISPs liable for the contents or information on the internet if they do not remove such content/information immediately after being ordered by a court or a public institution. 

Interestingly, these conditions have been listed out under the section which, according to its title, aims to protect the ISPs from the criminal liability for third-party contents in their systems.

Section 89 says that the ISPs will not have to bear criminal liability for the contents, data or link of third parties in their system. If a service provider is only limited to providing access to information, data or link, the ISP will not have to bear criminal liability, the section says.

Similarly, the service provider will not have any criminal liability if it has not produced the transmission material, selected the users of the material and not selected or altered the material, according to the section.

Other two conditions will exempt them from criminal liability if they immediately remove or deactivate ‘illegal’ contents stored in their systems upon the order of the court or public institutions and comply with the directives of the regulatory body. These are the two conditions that experts and ISPs find problematic. The ISP will have to remove or take down such contents if asked to do so not only by a court, but also public institutions which include government agencies as well as universities, banks, insurance companies or other companies where the government has stakes.

“During a recent consultation meeting at a parliamentary committee, we called for scrapping of such provision. We have clearly voiced our disagreement with the provision, which will make ISPs victims of any contents hosted or stored by the third parties,” Bhoj Raj Bhatta, president of the Internet Service Providers’ Association of Nepal (ISPAN), told Republica.

“The provision is draconian. It’s like we will have to remain prepared to go to jail anytime or face action for an offense that we have not committed,” said Bhatta, calling for the amendment of the provision.

While the bill itself has not listed violation of the section itself as an offense, experts say that the sweeping powers the bill gives to the government to interpret what constitutes a breach could land them in hot water.

“The government has craftily included conditions that make ISPs bear criminal liability for the contents or links or information on the internet posted or stored by third parties,” said Taranath Dahal, an expert on right to information. “If the government does not want any information on the internet, it could ask ISPs to remove them immediately. If the order is not followed, the ISPs risk facing action,” he added.


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