Freedom Forum has published a research report titled, “Inappropriate Approach to Cybercrimes: A Critical Review on Investigation, Prosecution and Adjudication of 100 Cybercrime Cases in Nepal” in March.
The research was conducted with the objective to analyze the investigation, prosecution, and adjudication of cybercrimes under Electronic Transaction Act, 2008 amid its rise with the increased internet penetration.
The research was qualitative one, employing a case study method. Random and convenience sampling methods were employed to select 100 sample judgments (Kathmandu District Court – 85 and Appellate Court Patan – 15) from the period of 2010/11 to 2020/21. The sample size for the research was more than 10 percent of total cases registered over that period in the respective courts, as per the annual report of Office of the Attorney General.
The data extracted from the judgments were categorized under different level and, further sub-categorized under three theme for analysis, i.e. (i) cybercrime prevalent in Nepal, (ii) adjudication of the cases, and (iii) punishment and compensation, to draw conclusion.
The finding of the study shows that women are more vulnerable to cybercrime, while men are mostly involved as perpetrators of such offenses. The crimes against women are mostly associated with sexuality, like disseminating nude and intimate pictures and videos without consent, morphing pictures to make it obscene, derogatory and obscene remarks, etc.
Similarly, cyber-enabled crimes are mostly prosecuted under ETA as cybercrimes; it mainly involves offenses like defamation, privacy breach, annoyance, fraud, etc.
The court has issued bailment orders in majority cases by asking guarantee deposits up to Rs. 150, 000. In majority cases (31 cases) it ranged up to Rs. 25, 000. In 70 percent cases, the accused are convicted by the court. Among these, imprisonment was sentenced in 67 percent cases, while penalty in 90 percent cases. In which, imprisonment up to one month was sentenced in 20 cases, and the maximum sentence of 2 years was in 3 cases only. The trend of court’s punishment rebukes the need for hefty punishment under the Information Technology Bill which is under consideration in parliament.
The study has found that section 47 of the ETA is misused by law enforcing authorities to suppress criticism of public personalities and institutions. The said provision has been used to initiate malicious prosecution against offenses other than relevant law. These prosecutions have the effect of punishing through the process. There is poor investigation of cybercrimes by police and prosecutions are based on fragile evidence by the prosecutors. The court seems reluctant to provide proper compensation to the victims.
Appeal over judgments of the KDC is mostly filed by the prosecution side. The exclusive jurisdiction of KDC to try cybercrime cases is a major challenge for the victims and accused.
The report makes recommendations to the government, court, prosecutor, police and public on the basis of its findings. Among other recommendations, the government has been urged to promulgate a comprehensive cyber law criminalizing cyber-dependant crimes in accordance with international cyber jurisprudence. Police, prosecutor and the court are respectively asked to register and investigate crimes, prosecute, and adjudicate the crimes as per relevant law only.