Nepal is currently undergoing a historic change from a monarchy to republicanism, and these are exciting times. It is however too early and difficult to predict how the law in Nepal will finally shape. This article attempts to explain the main law relating to online Freedom of expression and privacy is enacted and understood to function. With a caveat of course that how legal system in Nepal will in fact shape in future is anybody’s guess.
Freedom of Expression, Media and Internet Law in Nepal
By Aurora Sanchez Palacio
The situation of the freedom of expression (including use of internet) and media has developed positively for Nepal in recent years, although there is still room for improvement. Before the end of the civil war, Nepal underwent a period of substantial media restrictions. The 1990 Constitution included protective rights of freedom of expression, information, privacy and press and publication rights. Nevertheless, in 2005 King Gyanendra declared a state of emergency during which severe constraints were placed on the media. Even after the Supreme Court declared that the government had no authority to ban broadcasting of news, the prohibition still continued. After that, the King passed an ordinance reviewing certain legal provisions about the media. Such reforms included the establishment of the Press Council, body that subsists till today, the limitations on what could be broadcasted, and the necessity of securing government permission in order to broadcast from more than one location. During this time, journalists and broadcast stations suffered attacks, even by the police. Social involvement through the media was part of the revolt against the King’s actions. With the end of the civil conflict and the monarchical system, Nepal has prioritized the achievement of free media and the renovation of prior restrictive laws.
Background
At the international level, the International Covenant on Civil and Political Rights enshrines freedom of expression and opinion in article 19. Nepal has ratified this treaty, and is therefore obliged to respect this international protection of freedom of expression.
Nationally, the Interim constitution of 2007 includes similar protections, albeit with some modifications, as the constitution of 1990. The proposals for a final constitutional text also follow a comparable approach. Under the interim text, freedom of expression and opinion can only be constrained if the sovereignty of the country, its integrity, the friendly relationships among the diverse social groups, or public morality are imperiled, or in cases of “defamation, contempt of court or incitement to an offence.” (art. 12.2.a). In the same vein, the interim constitution includes the right to information, unless the requested information has been deemed secret by the law; and the right to privacy, except when a law establishes restrictions. Further, article 15 establishes that media cannot be censored, closed or obstructed. Nevertheless, there can be restrictions introduced by legal provisions, in similar situations as the right to freedom of expression. Therefore, these freedoms can only be restricted under limited circumstances, and when provided by the law. However, the open-ended terms used in the text may lead to government abuse in practice, since so long as a law motivates that some of the outlined circumstances applies, a limitation could be imposed.
International and constitutional protections to Freedom of Expression and privacy
In terms of electronic communications, the governing text is the Electronic Transaction Act, 2063 (2008). The law establishes legal recognition of electronic records and signatures, and regulates the procedure and qualifications of certifying authorities, which are accredited to release digital signature certificates. The licenses to these authorities may be suspended or canceled in certain circumstances, which include public interest motives.
Electronic communications