Writing something on Internet?

Recently, the State of Missouri, USA, passed a law that prohibits teachers and students to become online friends via any Social Network Site (SNS). The law sets January, 2012 as the deadline. This has ignited debate of online publications and communication. The Internet has become the easiest way to express opinion, through use of social networking site such as Facebook, microblogs such as Twitter and blogs.[break] However, those writing on those public forums must also be aware on laws – national laws as well as international laws. Here I have discussed issues related to legal aspects.

Freedom of expression

Internet has become the most popular medium of freedom of expression (FoE) in recent times. FoE is constitutionally guaranteed rights of every Nepali citizen as explicitly stated in Article 12(3) (a) of the Interim Constitution 2007. However, freedom of expression could be curtailed by law if that may undermine the nation’s sovereignty and integrity, or that jeopardizes the harmonious relations subsisting among the peoples of various castes, tribes, religions or communities, or on any act of defamation, contempt of court or incitement to an offence, or on any act which may be contrary to public decency or morality.

Internet users must therefore know and adhere to these limitations:

Defamation

A very common offence committed in Internet is defamation. Defamation is the act of injuring a person’s reputation by making a false statement. Section 47 of Electronic Transaction Act 2006 prohibits publication of any content that is declared illegal, or prohibited by any other law. The provision also states strict punishment, imprisonment for up to six months and fine up to Rs 100,000 for any illegal material published online.

The Defamation Act 1959 prohibits any act that injures a person’s reputation publicly. Although there is no such example of online writing being prosecuted for defamation offence so far, there are various case laws in this area decided by US courts. For example, Courtney Love was sued in Los Angeles Superior Court in March 2009 alleging that her Tweets were libelous to her former fashion designer.

Privacy

Right to privacy is one of contradicting issues when users of social networking sites are involved. Once you enter into SNS, your privacy is gone. Everyone can access your information you provided in the site legally. In Romano v. Steelcase, the New York Supreme Court held that, “when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings.”

Dilution of the principle of privacy on SNS is limited to the information you share on SNS. If a person does not want to share any information on SNS and another person makes public, the same amounts to breach of privacy law. In this aspect, tagging of another person’s photograph or posting personal information of other user’s personal information is illegal.

Copyrighted materials

Posting copyright materials such as photos, poems or stories copied from other source is an offence.

The Social Network Website Service Provider is not liable in a case where a member of the site [user] uses or uploads copyright-infringed content because “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

In such cases, the liability goes to the user itself. However, even if the copyright owner complaints the case and informs the site owner to remove such infringed content and still the owner does not remove it from the site, the owner is also held liable in such cases.

In Nepal, too, creation is protected as intellectual property under the Copyright Act 2002.

Fake identity

Creating fake identity is one of the major problems. Anyone can create account in any other’s name in SNS and microblogs or write blogs under fake name or anonymously.

However, there is no excuse in law for those people who create and post information through such pages. In 2007, a US court declared that a school principal can suspend an eighth grader who posted obscenity-laden fake MySpace page in the principal’s name.

Cyber bullying

Cyber bullying is one of cybercrimes common online where the criminal bullies the victim, sending such messages. In the US, a federal jury convicted Lori Drew for the death of 13-year-old Megan Meier who was harassed through a fake MySpace account.

Online posting in employment context

Often disgruntled employees post various abusive or defamatory contents targeting their employers. It is advisable that reference be made to employees’ activities not only on work computers but also on personal, non-work computers and after working hours in circumstances where such activity may have the effect of bringing an employer’s reputation into disrepute.

Pornography/obscenity

The Ministry of Home Affairs, issuing a public notice on October 22, 2010, imposed liability to ISPs and concerned authorities to stop transmitting or broadcasting or publishing those contents prohibited by Section 47 of Electronic Transaction Act, 2006. The Act prohibits publication or display of 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 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 peoples of various castes, tribes and communities.

Section 2 of the Some Public (Crime and Punishment) Act 1970 prohibits 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.

Similarly, Nepal Telecommunication Authority (NTA) has also amended licenses of all the ISPs on September 26, 2010 and incorporated certain clauses that impose ISPs to block certain websites. This applies to the users of SNSs as well. The following contents are prohibited to upload, distribute, transmit, sale and use:

Any content that undermines the sovereignty, integrity and national interest of Nepal, and that amounts to treason.

Any content that can be termed as obscene by the prevailing law of the land; any act which may be contrary to decent public behavior or morality; or which may jeopardize the harmonious relations subsisting among the peoples of various castes, tribes, religions or communities; or any act that provoke such social harmony; any visual, photograph, write-up that projects/depicts highly violent act; or any content that obstructs national and personal security.

ISPs shall make arrangement of denial of access on child pornography and such websites.

Final words

Internet users must be aware that they have agreed on the license agreement with the provider of services such as blogs, microblogs and SNS when opening an account that creates legal effect. If they violate those terms and conditions, they can be prosecuted under law. Nepal also has sufficient provisions to prosecute and punish such offenders.

Thus, they must remember that writing something online is not outside the jurisdiction of the laws. If complaints are made against such postings, the user has no other option than facing possibility of imprisonment and/or cash fines.

Advocate Aryal specializes in cyber laws, and is an executive member of Online Journalist Association of Nepal.