On Monday, 30 September, news came through that yet another journalist has been arrested under Clause 47 of Electronic Transaction Act 2008. Dinesh Acharya, editor-in-chief of Share Bazaar Weekly, was arrested as a case against him was filed by Nirvana Chaudhary, a heir of Chaudhary Group of industries and son of Nepal’s only Forbes billionaire.

At the Kathmandu District Court, where he was to be brought that day, I saw police bringing in people handcuffed together. A thought of a journalist being handcuffed alongside those accused on cases of drugs and violence horrified me for a few seconds. But Acharya was not among those dozen who were brought in an open truck. A police van later brought him – handcuffed but alone and in a better way.

He told me that Nirvana Chaudhary, who writes a business column in a magazine himself, filed a case against him for sharing on Facebook a news story published in his newspaper claiming a compensation of Rs. 550 million (that’s right, it’s Rs. 550,000,000). The story was related to his sour relationship with his wife. The story was first published in another online news portal which Share Bazaar printed with attribution. The story is not an example of good journalism. The story was then shared on Share Bazaar’s official page.

Share Bazaar, classified A class by Press Council Nepal, had been publishing critical stories of the business group and published on Sunday a story related to insurance payment that was made to a Chaudhary Group industry, which caught fire. The Group has also investment in the insurance company and Share Bazaar raised many questions.

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Acharya’s case was filed but couldn’t be heard on Monday. He had to spend a night at police station.

On Tuesday, he was brought to Court again, where the case was presented, and he was released on bail amount of Rs. 30,000. The Federation of Nepali Journalists legal desk advocate Bhakti Neupane fought the case for him. He is now out of police custody and walked home without handcuffs but his case is still on and he faces up to Rs 100,000 on fine or up to 5 years in prison or both under vaguely worded Clause 47 of the Electronic Transaction Act 2008.

Publication of illegal materials in electronic form: (1) 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.

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The Curious Case of Clause 47

If you read the preamble of the Electronic Transaction Act (or just ponder over the name of it for a minute), the first question you will ask is ‘how in the hell Clause 47 is in the act?’ That’s because ETA is an act that is to regulate electronic transactions and control computer related crimes such as hacking and alteration of data. The preamble clearly states that.

When I asked a member of the drafting committee of the Act while conducting an interview for my policy paper (Online Media in Nepal: Need for Policy Intervention PDF), the answer I got was pretty simple (and absurd): The provision was included in a rush to address the growing concerns about contents of the Internet as it didn’t seem possible that a separate Act for Internet content was coming soon.

The irony made possible by this Act is, while the material of the same nature is acceptable in print, it is not acceptable online and publication of the same material can be dealt under two different sets of laws, depending upon whether it was published, in print or online media (doesn’t that contradict with right to equal treatment).

While Shiva Guanle, president of Federation of Nepali Journalists, was at court, some asked him over phone what if the content itself wasn’t acceptable as good journalism. His answer was plain and simple: FNJ is not protecting the content and won’t intervene if any citizen claims for compensation on libel and slander act or go to Press Council Nepal for action; but ETA is clearly being misused to threaten journalists and if contents are criminalised, the free press rights could be restricted by state.

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Why Chaudhary Group avoided Libel Act or Press Council?

Plain simple: Libel and Slander is a civil offence so journalists won’t be handcuffed and put in police custody. Press Council is a media ethics monitoring body which can say the content was unethical and punish the newspaper by cutting off state subsidies but nothing much.

That’s not enough to threaten a journalist or enough for a revenge!

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This is not the first case filed against journalists under Clause 47 of ETA and until and unless Clause 47 remains, it will remain as a hanging sword over head of journalists – and citizens – who may find themselves in trouble for exercising the constitutional rights of freedom of opinion and expression.

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Reactions
What Dinesh Acharya and Nirvana Chaudhary wrote on their Facebook after the incident?

Quick Translation: True evaluation of human is in crisis moment. My arrest and release was a black day for journalism. If I have lost the case, Nepal's democracy along with the constitution, freedom of expression and free press would have become a fly on the hand of mafia. No journalists would have been spared by Electronic Transaction Act. Now, the path has been cleared. I have began the road to save free press and freedom of expression by spending a day in custody and paying Rs. 30,000 bail. In my step, many media organisations, legal professionals, politicians, bankers and businessmen including Federation of Nepali Journalists, Freedom Forum, Online Journalists Association and SEJON. Thousands shared critical news of Chaudhary on Facebook with a message 'arrest me if you can'. I heartily thank all for unprecedented support and unity. I will not step back from fearless journalism until I am alive. Money probably can buy 'police', 'party' and 'policy' but you can't buy my 'pen'. Be informed.