The Online Media Operation Directives 2016 is a serious threat to press freedom and freedom of expression online in Nepal as the newly approved directives goes against the core principles of democracy and free press.
The Government of Nepal, on June 14, approved the ‘Online Media Operation Directives – 2016 (Nepali PDF link | Unofficial / draft English translation)’ aimed to ‘make online journalism responsible, respected and bring it within the jurisdiction of Press Council of Nepal’. However, the document gives an overall impression that the motive behind the Directives is not to facilitate the development of the online media but rather the authoritarian style control over the online media, and criminalization of freedom of expression online.
Legal Censorship
Clause 21 of the Directives gives the state right to disrupt the website if a) online media is found operated without registration or annual renewal, b) materials deemed unpublishable is published or broadcast, and c) any act deemed against the Directives or applicable laws. Clause 6 also states that if the online media failed to renew annually, the service of the online media shall be obstructed according to the existing laws.
This empowers the state’s agency arbitrary power of censorship. The Department of Information is stated as the agency to the register and renew the online media ‘if the documents presented are found satisfactory after necessary verification’. The blocking of website that are deemed to be censored will then be blocked without judicial process on the decision of the Department.
The censorship provision is against the constitutional rights of the citizens; and a violation of the Constitution.
The Constitution of Nepal 2015, in Article 19, guarantees no prior censorship, no closure/seizure or cancellation of registration for contents and no obstruction in the means of communication under the right to communication. Article 19 of the Constitution further states that ‘if there is any broadcasting, publishing or printing, or dissemination of news, article, editorial, feature, or other material through the medium of electronic equipment or the use of visuals or audio-visuals, radio, television, online publication or any kind of digital or electronic equipment, or press, or other kind of media outlet, shall be closed, seized, or their registration cancelled for publishing, or transmitting, or broadcasting such material.’
The Article further states that ‘no means of communication including the press, electronic broadcasting and telephone shall be obstructed except in accordance with law’.
Unpublishable contents
The Directives lists out, in five points, contents that are unpublishable in the online media. The publication of unpublishable contents leads to the censorship of the contents by disruption of the service of the online media, including the foreign websites in Nepal. The unpublishable contents include:
- Contents that undermine the nationality, sovereignty, independence and indivisibility of Nepal, or federal units, or jeopardizes the harmonious relations subsisting among the people of various caste, ethnicity, religion, or communities,
- Contents of sedition, or defamation, or contempt of court, or an incitement of offence
- Contents that are contrary to decent public behavior or morality
- Contents that disrespect labor or incite racial discrimination, or untouchability, or discourage gender equality
- Contents without authoritative/official sources, or create misconception, or impact international relationship negatively
While the first four restrictions are identical to the reasonable restrictions on the Right to Communication in the Constitution, the fifth is not. The ‘reasonable restrictions’ of the Constitution is being criticized for being too vague and open for interpretation especially for it’s mention of vague ideas such as morality and decent public behavior that no law or authority could properly and explicitly define. The interpretation of those vague restricts for online media now rests with a government agency.
The additional restriction gives greater playground for the government to disrupt online media. The question of ‘what is authoritative source’ is wide open while any minor mistake in the news could be defined as ‘creating misconception’. The authoritative source idea is against the concept of the investigative journalism as the journalists are the one who decide whether the source of the information is authoritative enough to be believed or not. With the Directives, the government authority could decide that the unnamed source of the news in the online media is not authoritative because it’s not named.
Another concern in the Directives is that the responsibility of any published contents solely rests upon the online media ‘although it is published with its original publisher mentioned’. As such, the online media will also be responsible for the news coming in from the news agencies such as government owned National News Agency.
Inspection and monitoring of online media
The Directives designates Department of Information as the registration authority of the online media and the Press Council Nepal as the listing agency; and provides them the rights of ‘inspection and monitoring’. Clause 17 states that the Department will ‘inspect and monitor’ online media to ensure abidance of the existing laws and the Directives whereas Council will ‘inspect and monitor’ online media to ensure compliance with Journalistic Code of Ethics.
The online media are obliged to follow the Journalistic Code of Ethics issued by the Press Council of Nepal. Currently the Code is jointly issued by the Council and the Federation of Nepali Journalists (FNJ) but this may not be the case in future where the journalists’ bodies may decide to self-regulate themselves with their own Code of Conduct. In such scenario, to force the online media to oblige the Code issued by the quasi-governmental agency will be against the norms of the press freedom.
The Directives is not also clear about the inspection and monitoring whether it’s inspection by visit to offices of online media; and also not clear on what types of information the online media are obliged to provide to them during ‘inspection’. The motive behind the inclusion of the ‘inspection’ however seems gain the legal rights to visit the offices of the online media as in the clause where it talks about the foreign online media, it only states ‘monitoring’.
The Directives is also silent on the privacy of the visitors and commentators of the online news sites. What if the ‘inspection team’ wants a look at the backend of the online media? Online media may hold a good amount of metadata about the visitors or commentators of the website including his/her email address or IP address. These metadata are protected by the Rights of Privacy of the citizens.
There are chances that the inspection, which the DOI and PCN can decide when to take place, can be used as intimidation tool to the online media.
Annual Renewal of Online Media
The Directives provisions registration and annual renewal of online media, failure to oblige leading to the disruption of the services. While the registration could be justified, the obligation to renew every year will add unnecessary burden to the online media. It is not clear why the online media needs to renew every year and that too after renewing the company that needed to be registered to operate online media.
The provision is similar to that of radio and television but the license system of radio and television is based on the limitations of the resource (airwave frequency) that they use. There is no such limitation of space or frequency or number of online media could be operated, so the licensing style renew system adds burden to the online media.
Blogs and other expression online
The government officials are claiming that the Directives is to manage the online media to bring them under the press laws; and ‘to differentiate online media with blogs’. They say once the Directives comes into effect, the ‘registered online media will be treated as media whereas all other will be under the jurisdiction of cyber laws’.
It could mean that the Clause 47 of the Electronic Transaction Act (ETA) which criminalizes expression online could be brought into play against bloggers, citizens expressing their opinion online or even journalists (who do not work for registered online media or write on social media in individual capacity). The Clause 47 of the ETA, I believe, shouldn’t exist because it criminalizes expression and it’s a wrong law to deal with expression online.
Since the Directives states that the Department could disrupt the service of the website that are not registered for their contents, it could be that we would be seeing websites being blocked if they’re not registered. Blogs and other unregistered websites will always remains in the danger of being blocked for its contents.
Conclusion: A Repressive Directives
The Online Media Operation Directives 2016 is ill-motivated and ill-timed regulation that threaten the press freedom and free expression online. It’s not a comprehensive document to facilitate the growth of the online media, however a problematic document to stifle the online media development.
(Written by Ujjwal Acharya for the Center for Media Research – Nepal)