Development of information technology has brought tremendous opportunities to the human civilization. In addition to making our life easy and comfortable, it has also created an open space for exercise of free expression and free speech. In Nepal too, online spaces often referred to as digital space or cyber space, especially social media platforms, have been convenient platform for expressing views, opinions and criticizing government’s faulty policies and actions. However, the platforms have also become threat to citizens for exercising their fundamental rights.
Current practices of curtailing human rights on online space have raised severe concerns all over the world. Against this backdrop, Nepal government brought Information Technology Bill to regulate cyber space and minimize cybercrimes. The bill which was brought to replace Electronic Transaction Act 2008 has problematic provisions and is yet under consideration in the parliament.
In this view, Freedom Forum published a policy analysis paper reviewing the bill and its provisions. The paper also provides recommendation for the amendment and improvement of the bill, addressing freedom of expression and protection of human rights on internet.
In the analysis, IT bill was reviewed in line with Nepal’s constitution, existing laws, international instruments on human rights (UDHR, ICCPR, etc.) and the Budapest Convention.
The paper presents section-wise analyses of the bill. Sections 19 to 37 under chapter 5 which mentions provisions for controller and certifying authority includes several provisions which are already addressed as criminal offense. Especially Section 33 provisions controller’s access to data and information systems which gives the controller equal authority as that of crime investigating authority. Hence, the paper recommends removal of section 33 from the bill.
Similarly, the paper urges to amend section 58(1) of the bill in line with the ICANN’s rules. It further suggests removing section 62 which requires government’s permission to register domain names. Again, the paper recommends revising sections 75 to 78 in coherence with articles 2 (illegal access), 3 (illegal obstruction), 4 (data interference), 5 (system interference), and 6 (misuse of instruments) of the Budapest Conventions. According to the analysis paper, provisions related to damage and obstruction to digital information, privacy breach, data theft, etc in those sections are at odds with the standard norms and practice. The paper further states the provisions on the mentioned convention’s articles should be considered as basic indicators while drafting national laws related to cyber security and cybercrime.
Moreover, the paper also suggests removing sections 83, 85, 87, 88, 91, 94, 100, 102, 115, 116, 117, 118, 119, and 129. These sections include provisions on cyber security, sexual violence/ abuse, cheating, illegal activities using technology, use of technology to disturb social, cultural and religious harmony, national sovereignty and promoting hate speech. Most of the provisions in these sections are already criminalized under civil and criminal code.
Furthermore, Sections 91 to 94 speak about provisions on social media use which directly affects citizen’s right to freedom of expression. Also, most of the crimes included under this provision are already criminalized by the existing laws. The paper also suggests removal of sections 115 to 119 which contain provisions relating to IT court. It says those crimes mentioned in the bill can be prosecuted through district court as per the existing relevant laws. Hence, there is no need for establishment of specialized court.
In this way, the policy analysis paper discusses about problematic provisions on the IT Bill through human rights perspectives. The bill which has been brought to regulate the digital space should always ensure safe and secure cyberspace where citizen’s can safely exercise their right to freedom of expression. It is believed that the policy analyses paper will contribute to the debate of internet governance in Nepal and urges the government and policy makers to abide by human rights principles while introducing and enforcing the laws and policies on IT and digital spaces.