Why Facebook, YouTube, and WhatsApp Refused to Register in Nepal

Kathmandu: The government has claimed that it banned several social media platforms from 4 September because they did not contact authorities for listing. But the reality is different. The platforms have not been listed because major technology companies, including Facebook and Google, have serious disagreements with the Nepal government over the controversial social media guidelines, not because of defiance.

These companies had already submitted suggestions, expressing their objections to what they described as inadequate legal arrangements and problematic provisions in the guidelines. TechPana has obtained an eight-page letter sent by the Asia Internet Coalition (AIC) to Minister of Communications and Information Technology Prithvi Subba Gurung on February 11, 2025.

A portion of that letter, outlining their concerns and suggestions, is presented below:

Asia Internet Coalition (AIC) Response to Nepal’s Content Regulation
February 11, 2025

Hon’ble Minister Shri Prithvi Subba Gurung
Ministry of Communications and Information Technology, Government of Nepal

Asia Internet Coalition (AIC) is a leading industry organization promoting understanding and resolution of internet and technology policy issues in the Asia Pacific region. Our mission is to promote stakeholder dialogue between the public and private sectors, and to exchange best practices and ideas on internet technology and the digital economy.

We are deeply concerned by the introduction of the “Social Media Operation, Use and Regulation Bill” (Social Media Bill) in the National Assembly on January 28, 2025. We appreciate the government’s effort to regulate the digital space. However, extensive consultation with stakeholders is needed to ensure the law supports both regulatory goals and the growth of Nepal’s digital economy. The bill lacks adequate consultation and, if passed, could significantly harm digital rights, freedoms, and the country’s digital economy.

We are also concerned about the legal basis of the directive issued under the Electronic Transactions Act, 2063, regarding the “Directive on the Management of the Use of Social Media, 2080.” Uncertainties about how this directive relates to the proposed Social Media Bill add confusion. Companies seeking to operate in Nepal require clarity on these compliance measures.

In light of these concerns, AIC urges the government to reconsider implementing the directive. Its requirements add compliance burdens at a time when discussions on the Social Media Bill are still ongoing. We encourage a well-structured, consultative process on the bill and recommend delaying the directive until the concerns of Nepali stakeholders and global tech companies are addressed. This would align regulatory efforts with existing legal frameworks and international best practices.

Regarding the Social Media Bill, AIC strongly urges the government to conduct an inclusive and transparent consultation with all stakeholders, including industry experts, civil society, and the public. Our key concerns include:

Lack of Safe Harbor Protections: The bill lacks safe harbor provisions, exposing companies to legal and financial risks over user-generated content. It also omits good samaritan clauses that encourage responsible content  moderation.

Excessive Blocking of Platforms: The bill grants broad powers to block entire platforms, restricting freedom of expression. Content removal must follow clear procedures with legal criteria, judicial oversight, and appeal rights.

Mandatory Local Registration: Forcing platforms to register locally does not improve content moderation and may conflict with international laws, taxes, and practices. This could disproportionately affect smaller platforms and hinder innovation.

Unrealistic Requirement for a Local Contact Person: Appointing a single local contact for content issues is impractical given the scale of user-generated material. Global platforms already have transparent review systems.

We recommend halting the legislative process to allow genuine, transparent discussion with all stakeholders. Only a balanced framework can support innovation, protect digital rights, and provide regulatory clarity while ensuring an open internet environment in Nepal.

We also attach detailed comments in Annexes 1 and 2. We look forward to constructive dialogue with the Ministry.

Sincerely,
Secretariat, Asia Internet Coalition (AIC)

Schedule 1 - Key Concerns Regarding the Social Media Guidelines 2080

1. Ultra Vires: The Guidelines exceed the powers granted to the Government of Nepal under the Electronic Transactions Act, 2063. They are therefore ultra vires.

2. Registration and Licensing: There is no need to establish a separate entity for registration in Nepal. However, this requirement may weaken our jurisdictional defenses in cases of non-compliance and expose us to legal action in local courts.

3. Local Staff/Office: Social media platforms are given two options: (1) establish an office in Nepal; or (2) appoint a local contact person. If a contact person is appointed, they must (1) block illegal content under the Guidelines and (2) provide public information on proper social media use. Platforms with more than one lakh users in Nepal must also appoint a grievance officer to handle complaints.

4. Take-Down Request (TDR) Authority: The Ministry of Communications and Information Technology will set up a social media management unit with legal authority to direct platforms to remove illegal content locally. The directive lacks procedural safeguards (such as user notice, duty to give reasons, etc.) for issuing such requests. Companies will have limited grounds to reject them on due process. The absence of procedures means the ministry’s due diligence will be minimal, increasing the risk of excessive requests.

5. Fixed Time Limit: Platforms must remove or block illegal content within 24 hours of receiving a removal request from the ministry.

6. Liability of Intermediaries: The directive is silent on intermediary liability and safe harbor for internet service providers. The only penalty for non-compliance is that the ministry will notify the Nepal Telecommunications Authority of an offence under prevailing law.

7. Categories of Illegal Content: The directive defines 10 categories of illegal content but fails to provide clear definitions. Broad and vague terms risk misuse against legitimate expression and could trigger disputes between governments and companies.

8. Active Monitoring: Platforms are required to prevent the publication and dissemination of illegal content. This imposes an obligation of editorial control over all new content, which is practically impossible and fundamentally changes the nature of platforms.

9. Adoption of the Santa Clara Principles: Platforms must adopt the Santa Clara Principles in their operations.

10. Risks and Penalties: The only penalty explicitly mentioned is immediate blocking of an unregistered platform. The directive does not specify penalties for other violations. However, since it falls under the Electronic Transactions Act, penalties could include a fine of up to Rs 100,000, imprisonment of up to three years, or both. These traditional penalties are impractical for companies without a physical presence in Nepal, requiring lawsuits abroad. The government is more likely to disrupt services domestically by throttling servers or blocking platforms altogether.

- We will present the rest of the content on the Social Media Bill in the coming article.

 

पछिल्लो अध्यावधिक: भदौ २२, २०८२ १८:७

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