[Chapter-delegates] Urgent suggestion

Mon Jun 24 21:44:00 PDT 2013

Thank you Alejandro and All for quick suggestions and links.

As Shreedeep shared earlier, those journalists are released without filing
a case at the competent court. Attorney General, Minister for Home Affairs
came to rescue them. However, issue is becoming more complex as there are
two schools of thoughts on the application of law. One school of thought
comes from Media and bother comes from the state.

Those Journalists were arrested under S.47 of the Electronic Transaction
Act, 2006 that criminalizes certain publication over the Internet. The
provision of the Act is as follows:

 “If any person publishes or displays any material in the electronic media
including computer, internet which are prohibited to publish or display by
the prevailing law or 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 shall be liable
to the punishment with the fine not exceeding One Hundred Thousand Rupees
or with the imprisonment not exceeding five years or with both.”
When we read first part of this Sec., it states "which are prohibited to
publish or display by the prevailing law". To read with this Sec. we have
and old Libel and Slander Act, 1959. Sec. 3 of Libel and Slander Act, 1959
deals with offline defamation and it criminalizes the act. Under Sec. 3 of
Libel and Slander Act, 1959 of Nepal If a person by way of writing or words
or signs or understandable symbols accuses another person of any charge or
publishes such matter with intent to damage that other person’s character
or knowingly or having reason to believe that it will make such a damage,
the person shall be deemed to have libeled that other person.

Obscenity is another major excuse to criminalize FOE in general and online
in particular in Nepal. There is growing strictness of government agencies
on access to the content specially, pornographic and defamatory of the
nature. Ministry of Home Affairs, issuing a public notice on 22nd October
2010 asked ISPs to stop transmitting or broadcasting or publishing those
contents prohibited by Sec. 47 of Electronic Transaction Act, 2006. The one
and only prevailing law that prohibits any obscene material is* *Sec. 2 (c,
c1) of the Some Public (Crime and Punishment) Act, 1970 which states:

No person shall commit any of the following acts:

·      To break public peace or to make obscene show by using obscene
speech, word or gesture in public place.

·      To print or publish any obscene materials by using obscene language
or by any word or picture which denotes obscene meaning; or to exhibit or
sell or distribute such obscene publication in public place other than the
purpose of public health or health science;

We have Press and Publication Act and Press Council Nepal Act. Council is
responsible to issue Code of Conduct for Journalists and implement the
same. Thus, Media community claim that Sec. 47 of the Electronic
Transaction Act is not applicable as other specific laws are there for the
content published by a newspaper. However, another school says, it doesn't
matter who wrote the content, if the content is defamatory this is
applicable under the Electronic Transaction Act.

Another question raised by the event is that, when it is offline Defamation
it is very simple imprisonment of 35 days. Whereas ETA imposes upto 5 years
imprisonment. What is the practice of other countries ?

Suggestions are appreciated.

On Mon, Jun 24, 2013 at 8:14 AM, Dr. Alejandro Pisanty Baruch <
apisan at unam.mx> wrote:

>  Norbert, Babu,
>
>  I think that the case put forward by Babu Ram Aryal is a good test of
> what we do and how we think.
>
>  Basically I think that the problem - whether saying that a school's
> students do something untoward is defamation against the school - is not
> properly an Internet problem. The key lies offline: is it defamation under
> the country's laws? is it a serious case in that society's mind?
>
>  If it is indeed a case meriting attention - note taken of the Streisand
> effect - then the prosecution must be based on applicable, existing law. If
> the law includes explicitly the Internet then you have a clear-cut case. I
> assume it's not so (otherwise Babu wouldn't have written.)
>
>  If a case is filed at all, i.e. if the matter does not "die" soon,
> lawyers should consider whether use of the Internet for this report makes
> it worse (e.g. due to anonymity, wide reach, indelibility) or less bad
> (more like a prank, kiddie stuff) than spreading it by other means (the
> press, television, mimeographed leaflets, painting it on walls, writing it
> in the sky with smoke from an airplane...)
>
>  There is a serious warning here: many countries and subnational
> jurisdicitons (states, provinces, even counties) are writing or modifying
> anti-defamation and slander or libel laws as we speak. Some of them are
> awful - they are written in un-specific terms and allow for broad
> interpretations, so they can more easily be used or abused to quash free
> speech than on actual defamation cases.
>
>  So ISOC chapters may be involved in discussing, modifying or fighting
> such laws. It is the case for us in Mexico, where one Federal state's
> legislature has approached anti-cyberbullying law through the defamation
> angle (defamation is seen as part of cyberbullying and the most promising
> one for lawmakers.)
>
>  This got some very strong opposition within that state and nationally.
> We did file a brief opinion against it. The governor of that state has
> vetoed the law and returned it to the legislature with strong arguments in
> favor of a better law that does not serve to attack free speech.
>
>  A final note: the general global trend, recommended by many
> international instances, is to treat defamation only under civil law and
> not under criminal law. That is a further limit to the abuse of the
> criminalization of speech and opinions as a means to exert power and
> control, while it does seem to leave room enough for people to defend
> against real defamation and slander.
>
>  OTOH do note that if I understand well, countries like Australia seem to
> have strong anti-defamation laws with transjurisdictional reach; a really
> fearsome situation.
>
>  Disclaimer: I am not a lawyer. Call one in-country if you are going to
> act on a legal basis!
>
>  Yours,
>
>  Alejandro Pisanty
>
>
>  - - - - - - - - - - - - - - - - - - - - - - - - - - -
>      Dr. Alejandro Pisanty
> Facultad de Química UNAM
> Av. Universidad 3000, 04510 Mexico DF Mexico
>
>
>
> +52-1-5541444475 FROM ABROAD
>
> +525541444475 DESDE MÉXICO SMS +525541444475
> Blog: http://pisanty.blogspot.com
> LinkedIn: http://www.linkedin.com/in/pisanty
> Unete al grupo UNAM en LinkedIn,
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> Twitter: http://twitter.com/apisanty
> ---->> Unete a ISOC Mexico, http://www.isoc.org
> .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .
>   ------------------------------
> *Desde:* chapter-delegates-bounces at elists.isoc.org [
> chapter-delegates-bounces at elists.isoc.org] en nombre de Norbert Klein [
> nhklein at gmx.net]
> *Enviado el:* domingo, 23 de junio de 2013 20:57
> *Hasta:* chapter-delegates at elists.isoc.org; babu at isoc.org.np
> *Asunto:* Re: [Chapter-delegates] Urgent suggestion
>
>   Thanks for raising this question also on the Chapter Delegates List.
>
> Thanks for the first response from Joly pointing to the Streisand effect.
>
> I hope for further responses, as I think it is important that there is
> more exchange among Chapters and with ISOC Staff about the different
> painful interventions by authorities into the freedom and life of Netizens
> - often with very shaky reasons - as in this case from Nepal ("brinzal" can
> also spelled "brinjal" for "eggplants").
>
> Apart from our discussions about ITU and PRISM and WCIT which I consider
> also important, I am always hoping that questions of personal security and
> integrity of our fellow Internet uses ("The Internet is for everyone")
> receive also more space in our exchanges - especially also relating to
> solidarity activities for Chapters and their environment, from ISOC central
> and from the ISOC regional offices.
>
> Norbert Klein
> Member of the Executive Committee
> ISOC Cambodia Chapter
>
> =
>
> On 6/23/2013 12:09 AM, Joly MacFie wrote:
>
> One thing the authorities should take into consideration is what is known
> as the Streisand effect. That is that overreaction may only result in
> further attention, thus bringing further embarassment.
>
>  https://en.wikipedia.org/wiki/Streisand_effect
>
>
> On Sat, Jun 22, 2013 at 7:42 AM, Babu Ram Aryal <babu at isoc.org.np> wrote:
>
>>
>> Dear All
>> We have a twist on FOE over Online in Nepal. Three journalist are
>> arrested. FIR lodged against them by the principal of a college who accused
>> the content of a news online managed by defendants are defamatory.
>>
>> The online reported that brinzal, a kind of vegetable, were found in
>> toilet of a women's college. It is also written that brinzals are being
>> used by girls as sex toy to satisfy their sexual emotions.
>>
>> Do you think this is defamatory ? Can a college claim it's reputation is
>> defamed? What is practice of governing a news content online, around the
>> world?
>>
>> Your suggestions are highly appriciated.
>>
>> Thanks.
>> Sent from my iPhone
>> Babu Ram Aryal
>>
>> President
>> ISOC Nepal
>> +977 9851048401
>
>
>
>  --
> ---------------------------------------------------------------
> Joly MacFie  218 565 9365 Skype:punkcast <http://UrlBlockedError.aspx>
> WWWhatsup NYC - http://wwwhatsup.com
>  http://pinstand.com - http://punkcast.com
>  VP (Admin) - ISOC-NY - http://isoc-ny.org
> --------------------------------------------------------------
>
>
>

-- 
Advocate Babu Ram Aryal
President,
Internet Society [ISOC] Nepal Chapter
Anamnagar, Kathmandu
Nepal

Cell: +977-9851048401
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