As the Upper House of Parliament prepares to deliberate on the Social Media Act (Bill), 2081 on Friday amid hue and cry about its problematic clauses, two news items from India caught my attention. The Supreme Court allowed podcaster Ranveer Allahbadia to continue producing content while also chastising him for using filthy language. We can’t have a regulatory regime that leads to censorship, the top court said, but moral standards of society must be maintained even as we enjoy the constitutionally guaranteed right to freedom of speech. In another case, the apex court chided the Gujarat Police for its lack of sensitivity in booking Rajya Sabha member and poet Imran Pratapgarhi for posting a poem on social media. “Seventy-five years after the existence of the Constitution, freedom of speech and expression has to be at least now understood by the police,” the court said.

Closer home, podcaster Sajan Shrestha has been battling a volley of complaints and trolling for mimicking the tone of the new singing sensation Kuma Sagar. If the police complaints from one group or another weren’t enough, Sajan faced extreme cases of harassment, with some faceless trolls giving sexual assault threats to his female family members. While Shrestha’s mimicry was pretty lowbrow, he has apologised through multiple platforms on multiple occasions. Last time I checked, the singer hadn’t said a word even as a fellow artist faced the unnecessary wrath of trolls that were offended on his behalf. Any artist or intellectual or public figure for that matter, should understand that the demons of social media that we allow to unleash on others in our name will turn against us sooner or later.

The right to offend

Taking offence on inconsequential matters is slowly becoming a national pastime in Nepal, much like in India. Despite its herculean efforts at maintaining unity amid diversity, the next door neighbour is a classic case of what happens when religious, linguistic and caste-based differences are aggravated by the self-serving interests of political and communal forces. This is evident in the spread of communal hatred and dismissal of public intellectuals on social media each day, ultimately spilling onto the public space. While Allahabadia in India and Sajan in Nepal crossed the nominal moral boundaries of society in their jokes, their harassment reflects the general decline in the level of public engagement in the social media age. Unless someone is using provocative content with the intent of causing harm to the community or even raising communal flare-ups, it is not right to harass that person physically, legally or socially.

Things get awry when the government joins the bandwagon, providing political legitimacy to the professionally offended. Worse, the government wears the hat of the offended and begins criminalising difference, dissent and the right to offend. That exactly is the ill-intent of the government in the social media bill.

The Pratapgahri case in India should be an eye-opener for those of us still believing in the existence of a benevolent government while letting it keep a weapon such as the social media bill. Considering how social media was used in the 2022 local and federal elections in Nepal to generate a trend of boycotting mainstream political parties, with campaigns such as #NoNotAgain, the government formed out of two of the largest parties in Parliament considers it an absolute necessity to control social media well before the next big elections.

Capitalising offence

The government has deliberately maintained vague definitions in the social media bill so that it can punish anyone anytime. For instance, the misuse of social networks should be understood as sharing, commenting, live-streaming, reposting, hashtagging, mentioning or other similar activities that go against this Act or existing laws. This is so wide a net that the government can fish anyone based on this definition and slap them with financial and corporeal punishment. What’s more, the fines are as high as Rs2.5 million, in a country whose per capita income is just around Rs200,000 a year. This becomes even stark, considering how those sharing fake news arguably belong to the ill-literate and poorer sections of the society. In essence, the government wants to punish the citizens whom it has denied the right to education and decent life in the first place.

Even more dangerous is the threat to press freedom. The bill says that if the government feels that any news item published in a news outlet has harmed Nepal’s sovereignty, geographical indivisibility, national security, national unity, independence, pride, or the relationship between federal units, it may pursue a criminal case against the outlet or the journalist, with a fine of up to Rs500,000 and a jail term of five years. This is as vague as it can get and has been deliberately kept so in a way to punish dissenting voices.

Manufacturing fear

Calls for regulation is a global clarion call today as social media increasingly becomes a site of hate speech, sextortion, deepfakes and phishing, among other crimes. As part of the globalised world, Nepal is naturally facing the global problem of having to regulate social media. In this sense, what the current government is doing is nothing extraordinary. In fact, the government cannot be derided completely for attempting to introduce regulations on social media. And no sane voice from among media personalities, intellectuals and human rights activists is calling for a complete disregard of the bill. The bone of contention is, therefore, not the bill itself but rather the hugely problematic clauses that stand to summarily criminalise dissent and difference. The social media bill, in its current draft, is a manifesto for extortion in the name of maintaining law and order. Essentially, it aims at creating a regime of fear, and that is not acceptable in a democracy.

When three generations of monarchs slapped these leaders with sedition charges, threw them in dark dungeons or exiled them for seeking democratic rights, it was the common masses who served as their messengers, foot soldiers and caregivers. Now, those leaders have become big national players, and they are keen to impose the same rules that Mahendra, Birendra and Gyanendra imposed on them and their compatriots over generations. We have arrived far away from the authoritarian regimes of yesteryear, and no attempt at silencing critics and creating a regime of fear is acceptable. The social media bill, in its current form, needs to be critiqued vociferously in the Parliament, on streets and on social media.

The government must back off from criminalising criticism, dissent and differences. Regulating social media, not controlling it, should be its starting point. On the morality part, the society, through constant negotiation, decides for itself what its moral standards are. The government has no business dictating what they should be.