This article was originally published by Yatindra KC in the Himalayan Times on November 24, 2019.
By and large the international community seems to be in agreement about regulating social media. This has stemmed predominantly due to the use of social media as a platform to carry out activities that classify as crimes, and are seen as unwanted by the general populous. The debate as to whether Internet should be left free of regulations or whether some form of control mechanism is required given the changing circumstances can be said to have won by advocates of government control. Perhaps, some form of regulation is indeed required. But the question that is left unanswered is how regulations should look like. Should the regulations, in the form of prescriptive approach, call on social media companies to be more vigilant of the content they transmit in their capacity as an intermediary, or should a model of self-regulation based on the kind of services be provided?
The debate regarding this question is left unsettled. While libertarians argue that a prescriptive approach can affect exercise of fundamental rights, the other side often quotes certain grievous and heinous events from the recent past to rationalize prescribing rules for social media companies. Despite the debate, both parties seem to be in agreement about striking a balance between exercising personal rights i.e. freedom of expression and third party service provider liability & regulations. This notion becomes especially relevant to Nepal in the wake of the registered Information Technology bill. The bill with all good intentions seeks to regulate social media companies through a model of registration and secondary legislations to be framed in the future. But any action can never be judged based on its intentions; its judgment can only be made on the basis of the consequences that follow.
In clearly prescribing rules to be followed through a law, defining the category to which the law is applicable becomes of utmost necessity. Definition should be such that it is not vague and will not be subject to further discretionary interpretations. The bill defines social media companies as organizations that offer an interactive communication model. Although it is true that the aim of social media companies is to offer an interactive communication model, lawmakers also need to acknowledge that almost every business now offers an interactive communication model to better enhance service delivery. The question that follows is whether such businesses fall under the classification of social media companies and whether they require registration as set out in the bill.
The problem that most countries face is defining social media as a distinct class since almost all online businesses and innovative businesses have some element similar to social media applications. This is largely why most nations have been reluctant to define social media companies. The approach has been to classify social media companies as intermediaries or service providers which they rightly are and prescribe rules for the same. Surprisingly, the Information Technology bill also has a provision for service providers, the definition of service provider is aptly stated as any business that hosts or transmits third party information. Per this definition, social media companies can be said to fall under the category of service providers. In the existence of provision of service provider and liabilities pertinent to service providers, the intention behind the requirement of registration of social media companies as set out earlier does not seem clear.
The provision concerning service providers entails that when the service provider acts as only a third party whose duty is limited to dissemination and transmission of information, they are exempt from liability, it also provides that information needs to be taken down when asked by the relevant government body. However, the proviso provides that if even when acting as a third party and disseminating information, if the information is in violation of the prevailing law the service provider will be held liable. This is especially problematic given the vast amount of information that service providers disseminates. It calls for them to become more vigilant in disseminating information and perhaps even checking the information which simply is not feasible.
The approach to regulating social media must be one that is clearly defined, for instance properly defining social media companies as those whose sole and primary objective is to provide interactive communication model as is done in the Australian Legislation. The ideal regulation for social media companies is one that calls for removal of information within a specified time following a complaint or a request for removal, mode of such removal and grounds when content needs to be removed and not one that requires registration and increases compliance costs, while also asking them to be more cautious. Perhaps our own laws need to be framed in this manner to avoid unwanted consequences in the future or perhaps the other part of the debate i.e. exercise of personal rights must be settled first before we move forward with the Bill.