Ms. Dwa is a research intern at Samriddhi Foundation, an economic policy think tank based in Kathmandu. The views expressed in this article are the author’s own and do not represent the views of the organization. Author can be reached at Sudeekshya Dwa [email protected].
On Nov 13, 2023, Tiktok was officially announced to be banned in Nepal. Official reasons stated for the action include threat to social harmony, religious animosity, violence, family discord, and promoting misogyny and casteism. So far no legal basis for the ban has been given by the government of Nepal. More importantly, the ban on tik tok is a continuation of state outlook on fundamental freedoms of expression and opinion.
Restrictive provisions that limit both expression and speech in the name of decency have been used in the past. Multiple arrests have been made based on Section 47 of the Electronic Transactions Act, which prohibits electronic publication or display of material deemed illegal under existing laws. Restrictions often follow from vaguely defined terminologies. A telling example is the definition of material; the act defines material as “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.” Vagueness and ambiguity in the law often lead to subjective interpretation of the law. Two instances of the recent past attest to the dangers of subjectivity. First in 2019, Singer Durgesh Thapa was arrested for the words he used in his song. Second comedian Apurba Kshitiz Singh was also arrested in 2022 for making racist remarks in a standup comedy show. Both incidents, as some have rightly argued, are a limitation on the freedom of expression.
The recent ban which uses subjective clauses as its justification is a similar case. Despite the efforts made by the government of Nepal to successfully implement the ban, it has remained ineffective. Most of the 2.2 million users of TikTok in Nepal have resorted to various third party apps such as virtual private network (VPN) and altering the domain name system (DNS) to continue using the application. According to specialists and internet service providers, TikTok is responsible for approximately 40 percent of the bandwidth usage on the Nepalese internet. Where there should have been a decrease in the internet traffic after the ban, there has instead been a 20% increase. Although people had been using VPN, the TikTok ban has instigated the possibility of increase in the number of unsafe VPNs looking to invade users’ privacy. The authorities issued warnings to the public about the risks of using unreliable and illicit VPN and DNS services, which could lead to the loss or theft of their private information.
Nepal is not the only country to institute some form of content moderation on social media platforms. Numerous countries have either initiated a complete ban or limited the ban to only some areas. In part, such bans show how fundamental discourses on the limit of freedom of expression are evolving with the rise of social media platforms. The only question that remains for Nepal is whether we seek to stifle all speech or limit such action. Numerous cases have been filed at the Supreme Court of Nepal questioning the constitutional grounds of such action. In the past the Supreme Court has declared several state actions particularly those that relate to limiting the freedoms guaranteed by the constitution as unconstitutional. The fate of the tiktok ban may also be similar but the important question that remains unanswered is what approach should we take. Is moderation of speech or content a part of free speech? Should the state be involved in such moderation and should it concern itself with taking adequate action which includes selective banning?