Text By Darshana Rana and Prakritee Yonzon, Pioneer Law Associates
Technology advances are rapid and new developments come up every few months, however the existing legal framework in relation to digital technology, i.e. the Electronic Transactions Act 2008 (2063) (ETA), is yet to be updated of such changes. Very recently, Nepal Electronic Payment System claimed that Nepali banks lost millions in a cyber-heist wherein foreign hackers used electronic cards to illegally withdraw money. Instances like these point out the urgent need for regulation of technology.
In light of this vacuum, the Information Technology Bill 2075 (the Bill) seeks to provide an overarching legal framework for information technology, protect rights of the individuals using internet by inter alia imposing liabilities on information service providers, as well as individuals themselves and provide data security.
The Bill puts onus on the service provider to inform the concerned individual purpose for which their personal data is being collected. The information collected can only be used for the purpose specified. Further, personal information can only be broadcasted or transmitted to a third party after obtaining approval from the concerned individual. The Bill also stipulates that after the purpose for which the data was collected is accomplished, the data needs to be destroyed within seven days. In comparison to the earlier regime social network including Facebook and Instagram will now have to incorporate more safeguards in order to protect our personal information. For instance, as per the terms and conditions of Instagram, it retains the non-exclusive right to use, distribute, modify, run, copy or display the content that we upload on Instagram. By agreeing to these terms and conditions, Instagram has our consent to use the content we upload. However, the consent given appears to be unconditional and not for a specific purpose as required under the Bill. Further, as per the Bill there are no clear terms about disposal of data after Instagram uses such content.
The Bill also prohibits any person from unauthorised breach of confidentiality, and this may include listening/ recording conversations without consent. It is yet to be seen how this provision will be tested in terms of balancing it with evidence laws. In addition to individuals, the Bill also puts onus on the service provider or person processing or storing electronic information to maintain confidentiality and inviolability.
The Bill also deals with scenarios where there is inappropriate content being circulated in social media. Circulation of inappropriate content can negatively impact the psyche of the viewers. To combat scenarios like this, the Bill empowers the court to direct social media network to remove any inappropriate content from its site. In terms of timeliness and efficiency, the Bill ought to authorise the Department of Information Technology, for such measures. The Court can then act as a check and balance to the acts of the Department.
Although this Bill resembles the way forward in the digital economy, but due to heavy criticism by the public and experts in the field, there have been issues with its implementation. The Bill had initially empowered the government to remove any content in social media platforms that was against government policy. After widespread criticism in relation to encroachment on freedom of speech and expression, the recent amendment has done away with this provision. The amendment has also removed liability of individuals in case of defamatory/ hate inciting statements online. These would then be addressed under criminal laws of the country.
Under the latest amendment to the Bill, social networks with more than five lakh members are mandated to register in Nepal. This effort of the government has been severely criticized because the government is putting procedural hurdles on the very operation of social network. By making it difficult to operate, we are discentivising social networks to operate in Nepal. The country would face the risk of social networks not operating within its territory, which would negatively impact e-businesses dependent on such social networks. In line with the global economy moving towards a border less digital economy, Nepal would be shying away from digital advancement to negate its negative impact.
Though this issue of social network needs to be addressed, the other issues that impeded the implementation of the bill has been dealt with, increasing the prospects of the much needed legal framework for information technology.