Electronic Transactions Act 2008

A number of journalists were indicted last month and most of the charges were associated with misconduct against women. One was about alleged harassment of a co-worker and another involved an attempt to allegedly spread hatred in a community. There was also one case that involved the publication of an advert looking for recruits for an illegal, underground outfit. All except the later attracted charges under the Electronic Transactions Act 2008.

A Kantipur journalist was accused of harassing a co-worker using the Internet and was in jail last week pending a trial while others had been released from detention. Police had arrested him following a complaint by his editor and the Kathmandu District Court – the designated authority to hear litigation under the law – had approved an extension to his detention. Media reported that the journalist was also suing his former workplace of defamation. In another case, which took place in Dhangadi, the issue was about a computer at a newspaper office being used to send an email with defamatory content about women. On this, the court did not find it necessary to detain the suspect.

The other alleged infraction took place in Pokhara where the email of a newspaper was used to send out content that was said to be detrimental to the sentiments of a particular community.

An eerie coincidence – perhaps: All of those accused of infractions under the aforesaid law were related to the profession of journalism.

Some journalists fear that the Electronic Transactions Act could be used by government and interest groups in a roundabout way to control media considered to be “unfriendly”. The Act allows authorities to imprison suspects for up to 25 days.
And it is how the law is worded that is of particular concern because, among others, it also mentions the “electronic media” without defining it – or leaves room for its interpretation and use against media freedoms.

Clause 47 says, “If any person publishes or displays any material in the electronic media including computer, internet which are prohibited to publish or display by the prevailing law or which may be contrary to the public morality or decent behavior or any types of materials which may spread hate or jealousy against anyone or which may jeopardize the harmonious relations subsisting among the peoples of various castes, tribes and communities shall be liable to the punishment with the fine not exceeding One Hundred Thousand Rupees or with the imprisonment not exceeding five years or with both.”

"Electronic Form" is very broadly defined to mean information transmitted, received or stored and generated through “magnetic, optical, computer memory or similar other devices.”

Without touching the subject of the charges, which is now something for the courts to decide, what does merit a closer look is the clause that was invoked for the indictments. Why for instance were the charges not based under other laws such as defamation and libel, press and publications, broadcasting or even the law barring violence against women?

What if the broadcast media were, for example, to have advertisements that portrayed women in a negative light and if someone were to press charges under the electronic transactions law and not defamation? And should that happen, how would it stand up against the constitutional guarantees of free expression and media freedom? Again, by the same logic, why was the case involving an advert that was published on behalf of a group that is by proclamation violent – for which also a computer was used to generate the message (going by the definition above) – did not attract the same clause? Or, who decides and what is the basis for the decision? The process also leaves a question unasked and unanswered: Why is one of the accused detained while others are not?

Such questions have – rightly – caused some journalists to fear that the Electronic Transactions Act could be used by government and interest groups in a roundabout way to control media considered to be “unfriendly”. “This is possible because of the vague terminology,” said Govinda Acharya, vice-president of the Federation of Nepali Journalists (FNJ). He was also a member of a FNJ team formed to look into the case involving the aforesaid cases. “As it is, the same law could also be used for controlling content on social networking sites such as Facebook.”

The electronic transactions law allows authorities to imprison suspects for up to 25 days. Therefore, if journalists considered unfriendly by powers-that-be are detained, they could be thoroughly demoralized even if there was no conviction in the end. And when something like this happens, it would reduce all the constitutional provisions guaranteeing free expression and media freedom to a farce.

Till last week, the FNJ had not released reports of its fact-finding efforts on the cases discussed above. It was also likely that its report on the Dhangadi case could take a longer time to be made public because it also involved an attack on the suspect by the president of the district’s journalist union.

Dharmendra Jha, president of FNJ, has discussed the possibility of the electronic transactions law emerging as a major threat to free expression. “We think the courts will, and we believe should, decide on the charges against the accused but the issue of free expression and the law is something that needs wider discussion,” he said.

On the Pokhara case, the editor of the publication in question issued an apology but still faces charges under the law – even though the use of an email belonging to someone else is by no way a definitive proof of committing an act of sending an email.

No free expression on film

Last month, the censors at the Ministry of Information and Communication (MoIC) forced a documentary festival organized by students to fold up two days before it would have ended. The issue was censorship allowed by a rule amended in late 2009, which now threatens to nip the budding documentary filmmaking in Nepal, and take the emerging platform for free expression head on to a certain death.

The festival that was forced to prematurely shutdown was called the Buds Film Fiesta – an exhibition of 40 short videos by young men and women. Commercial films are censored even in developed markets and even though there are issues about professionalism and transparency of film censorship in Nepal, it has more or less been accepted.

Commercial films being commercial ventures are censored because they could breach limits of decency and taste for attracting more audiences. The extension of the same rule to censor documentaries does not stand up to logic because they are not commercial to start with even though some may charge a viewing fee (this more than censorship is something that could have perhaps attracted taxes).

The new rule allowing a committee of mainly government officials to censor documentaries defines ‘film’ to mean anything that includes “moving images”. Such terminology can be extended to mean everything from a student video to, and more importantly, all the content there is on television including news.

Hence, these questions: Why censor only documentaries and why not television content? And if such action against television would contravene free expression and the constitutional guarantee against prior censorship, why does the same argument not stand in the case of documentaries that also report reality

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