The Internet has become an essential mode of communication worldwide, a trend that extends to Nepal as well. Social media usage, in particular, serves diverse purposes, including entertainment and the expression of political opinions, providing new means for civic engagement. From #NoNotAgain to #enoughtoenough movements, social media platforms like Facebook, X (formerly Twitter), and TikTok have been massively used for political socialization.

Emergence of Social Media Regulation

With the surge of social media usage, voices advocating for the governance and regulation of social media gradually emerged. This led to the enforcement of directives for managing the use of social networks, 2023. The directives included a list of do’s and don’ts for social media users. The "21 point don'ts" list emphasizes the prevention of activities such as creating anonymous or fake accounts or pages and using altered or animated images, among others. The vague provision regarding what not to do in the directive could result in unintended consequences and potentially stifle criticism or socio-political movements.

The directive mandates registration for individuals, companies, or organizations operating social media platforms. Existing platforms must apply for registration within three months, with the deadline set for March 21. As of that date, only LinkedIn and Viber had been officially registered, creating uncertainty for other social media platforms like Facebook, Instagram, and X regarding their operations in Nepal. Although TikTok has applied for registration in accordance with the directive, the government has yet to decide on its registration due to the current temporary ban imposed by the Government of Nepal.

TikTok Ban: A Setback for Internet Freedom

Just four days after the endorsement of the Directive, on November 13, the council of ministers decided to temporarily ban TikTok, as claimed by the government, for the preservation of "social harmony" and "family structure." Instead of regulating content, the government chose to take down the entire platform, marking yet another setback for internet freedom. The ban infringes upon individual liberties and represents a significant encroachment on freedom of speech, guaranteed under Article 17 of the Constitution of Nepal.

By implementing a blanket ban on TikTok, the government seems to aim at restricting a vital platform for communication and expression, thereby curtailing the ability of Nepalese citizens to partake in online discussions, voice their opinions, and join the global digital community. Additionally, this ban appears to have a negative impact on the economic prospects of content creators and small to medium enterprises, jeopardizing their business stability.

Proposed Bill for Social Media Regulation

The introduction of the TikTok ban and directive signaled the government's aim to regulate social media and the internet. However, their latest action takes it a step further by introducing a draft bill on social media (usage and regulation), 2080. While the bill is intended to establish necessary guidelines for content moderation, it also includes provisions that pose a direct threat to online freedom of expression and internet freedom. Following are the major concerns over the draft bill;

Concerns Over Excessive Regulation

The bill imposes restrictions on individuals' rights through defined offenses and mandates registration and content blocking for social media platforms. It grants extensive authority to government bodies and creates new executive-controlled entities, raising concerns about excessive regulation and infringement on freedom of speech.

Fragmentation of Legal Framework

The bill aims to regulate both social media content and platforms, treating them as separate entities. However, in the realm of internet content regulation, it's crucial to understand that social media is just one component of the broader internet landscape, and rules for internet regulation naturally encompass social media rights.

Creating distinct laws for social media content is deemed unnecessary. For instance, having separate laws for addressing false information on the internet versus social media isn't essential. Fragmented regulations in Nepal for online, electronic media, and social media might lead to legal inconsistencies, highlighting the necessity of a unified legal framework. Emphasizing consistency in the legal framework regarding the internet, online activities, or electronic media eliminates the need for separate regulations on content management for these platforms.

Redundancy and Overreach in Regulation

Despite recognizing the importance of regulating social media, the question arises: Is a separate law necessary? With the Ministry recently publishing the draft Information Technology and Cybersecurity Bill, creating another law for the same purpose appears redundant.

One troubling provision is Section 17, which requires social media companies to take down reported content without clear procedures to protect the rights of affected individuals. There's no requirement for notification or opportunity to be heard, nor are there alternatives to content removal or oversight by an independent body. This lack of safeguards could lead to misuse of power by the executive and improper use by individuals filing complaints, ultimately curtailing free expression without judicial oversight or recourse.

Need for Proportionate and Reasonable Regulation

Legislation and regulations that limit fundamental human rights, like freedom of expression, must meet certain criteria. They should be necessary, proportionate, and reasonable, meaning they're only imposed when absolutely needed and in the least intrusive manner possible. They must align with international human rights standards and fall within specific grounds outlined in the constitution. Even within these grounds, the principles of proportionality and reasonableness should guide the process and justification for content removal.

Right to Privacy and Anonymity

Section 22 of the Bill aims to enforce transparency by prohibiting the use of fake IDs or concealing one's identity on social media. However, this clashes with Nepal's constitutional right to privacy, which is essential for fostering free speech, particularly for marginalized communities and government accountability. Anonymity online serves various legitimate purposes, including protecting whistleblowers, facilitating research, and enabling artistic expression.

Moreover, the broad ban on "fake" accounts fails to consider the diverse ways in which people assemble and interact online. Online platforms provide spaces for informal associations and discussions, enabling individuals from different backgrounds to convene and exchange ideas. By imposing rigid regulations, the Bill undermines the fluid and organic nature of online communities, thereby limiting the freedom of assembly and association.

Overly Broad Restrictions and Potential Censorship

However, the current version of the Bill proposes overly broad, vague, and unnecessary restrictions on online speech without adequate qualifiers or conditions. It essentially censors a wide range of online expression, potentially violating people's rights. Moreover, it introduces new offences and fines for violating these restrictions without clear exceptions for journalism, artistic works, scientific material, humour, parody, or satire – all of which should be protected forms of speech.

Conclusion

In conclusion, while the government's efforts to regulate social media and online content may be driven by valid concerns regarding transparency and accountability, the methods employed, particularly the introduction of the TikTok ban and the proposed Bill for social media regulation, raise significant issues regarding freedom of expression and online privacy. The blanket ban on TikTok, along with the overly broad and vague provisions of the proposed Bill, threatens to stifle legitimate online discourse and restrict the rights of Nepalese citizens to engage in open dialogue and expression. Furthermore, the lack of clear procedures and safeguards in the proposed legislation raises concerns about potential abuse of power and unjust censorship. It's imperative for any regulatory framework to uphold fundamental human rights, including freedom of expression, and to be proportionate, reasonable, and consistent with international standards. Additionally, a unified legal framework for online regulation, rather than fragmented laws targeting specific platforms, is necessary to ensure coherence and effectiveness while protecting individuals' rights in the digital sphere.