No freedom after expression

On World Press Freedom Day on 3 May, Reporters without Borders issued a map of the world with the status of press freedom in each country. Most Asian countries had restrictions on the media, and Nepal was a beige island in a vast expanse of red.

Nepal’s record of democracy and press freedom may now be in jeopardy because of a recent slew of decisions by the courts and law enforcement to intimidate journalists reporting on corruption.

The Kathmandu District court on Wednesday issued an arrest warrant against journalist Dil Bhushan Pathak on cybercrime charges, three weeks after he posted an explainer video on his Tough Talk YouTube channel on Jaiveer Singh Deuba’s alleged investment in Kathmandu’s Hilton Hotel, and business dealings overseas.

Jaiveer Singh Deuba is the son of Nepali Congress (NC) chair Sher Bahadur Deuba and Foreign minister Arzu Deuba. Pathak based his content on news previously published on various online platforms.

On the same day, the Kathmandu District Court also issued an temporary order to remove news published on Nepal Khabar and Bizmandu about the Securities and Exchange Board of Nepal (SEBON), whose Chair Santosh Narayan Shrestha had filed a complaint. The court even directed the sites not to report on the subject anymore. 

The moves reignited fierce debate about politicians, bureaucrats and businesses becoming increasingly intolerant of media exposés of wrongdoing, and trying to squelch constitutionally guaranteed protection of freedom of expression. As of press time on Thursday, Pathak had switched off his phone and was avoiding arrest.

Last year, police arrested a person for sharing a video of people chanting slogans against Prime Minister K P Oli and Sher Bahadur Deuba during a festival in Kathmandu. Another Nepali was arrested for posting a photo of Oli and calling him corrupt. Both were taken into custody under cybercrime charges. 

“Whenever someone raises questions about a public figure in Nepal, there is a tendency to file a cybercrime case without any investigation,” notes former Supreme Court Justice Balram KC. “this is reminiscent of the Panchayat era.”  

Interestingly, the warrant against Pathak was issued under the Electronic Transactions Act following a complaint filed at the Cyber Bureau. That Act was legislated to regulate online transactions and money laundering. The government has been resorting to that law to intimidate and jail journalists.  

“The Act is being misused by political leadership and those who wield power to target those who question, criticise and attempt to hold them accountable,” says CIJ-N editor Kiran Nepal. “This is blaming the messenger, and completely wrong.”

There is growing public anger against the three main political parties that have been in power since 2006 for not addressing problems like unemployment, social welfare, shoddy infrastructure. Lack of accountability and corruption lie at the root of those problems, and when journalists investigate them they are targeted. Prominent journalists like Pathak are singled out to set an example, and intimidate others. 

Article 19 of the Constitution guarantees the media’s rights to publish and broadcast news without restriction. This has protected the mainstream press somewhat, but it is mostly online media that have felt official wrath. The legacy media also posts content online, and some have also had contempt of court and defamation cases filed against them.  

“In Nepal, the medium through which news and views are expressed have become more of a target than content,” says attorney and cyber law expert Baburam Aryal. “A crime is a crime no matter where it is committed, why should it be all right to print the same news in a newspaper but not online?”

Taranath Dahal, former president of the Federation of Nepali Journalists and founder of Freedom Forum, says that the court can order the removal of news only if it causes serious harm to someone's life and reputation. 

He adds: “It sets a dangerous precedent if a person who holds public office orders the removal of news content instead of factually refuting the allegations reported in said news.” 

To be sure, both legacy and online media in Nepal have problems. Click baits and views-chasing for revenue on YouTube have allowed disinformation and hate speech to proliferate. Algorithms reinforce and further radicalise entrenched beliefs, amplifying toxic trolling and fanning populism. Experts have called for regulation that does not undermine the citizen’s right to know.  

Just this week, journalists were arrested in Rautahat on corruption charges after colluding with local authorities to falsify documents of a local government bidding notice.

Any complaint against Dil Bhusan Pathak should have gone to the Press Council, which is legally mandated to respond to complaints regarding media content, including on digital platforms. But powerful political and businesses prefer to file cases directly in court, and invoke the Electronic Transaction Act because it allows the journalist to be held in custody during investigation.

“This practice has led to not just the violation of press freedom, but also of civil liberties,” says attorney Santosh Sigdel. “The attempt to limit digital spaces and restrictions on the right to gather peacefully in public spaces, is an attack on our democratic values and norms.”