On November 13 the government of Nepal banned TikTok in the country. It argued that the decision was taken because the widely used short video application was causing disruptions to social structures and the overall social environment.
The banning of TikTok aligns with a cultural tendency within the democratic government of Nepal to resort to bans when issues arise, rather than opting for regulatory and monitoring measures. This approach has been observed in past instances, such as the prohibition of women travelling to specific countries due to cross-border trafficking concerns, the closure of certain futsal venues amidst issues, and the banning of ride-sharing and petrol sales in bottles following isolated incidents. The government’s inclination to choose bans over detailed regulation and identification of root causes is evident.
Nepal’s reactive government
In the current context, TikTok is acknowledged as a social platform for freedom of expression. While various authorities and research highlight concerns about social networking sites being addictive, affecting mental health, spreading misinformation, posing challenges to children’s safety, and raising data security issues, the decision to ban TikTok lacks concrete evidence of disruption to social structures and the social environment. This raises significant questions about the government’s reliance on factual justifications and research in its decision-making process.
Despite the limited substantive impact of the TikTok ban, concerns linger about the government’s attitude. The discriminatory closure of TikTok raises serious questions about the government’s bypassing of parliamentary roles and its arbitrary decision-making.
The ban on TikTok appears discriminatory and unjustified, especially considering that similar content is going viral on other social networking websites. The decision seems questionable and suspicious. There is a concern that the ban on TikTok, without a clear legal basis, may set a precedent for similar actions against other content in the future. This raises apprehensions about potential arbitrary measures without proper justification becoming a norm.
The government’s decision to “use” TikTok in Nepal lacks clarity, particularly in specifying whether it pertains to generating TikTok content or consuming it. This decision, along with subsequent correspondence to regulators, lacks a solid legal foundation.
The preamble of the constitution of Nepal emphasises the ‘rule of law,’ requiring every government decision to be rooted in legality. The absence of a legal basis poses a fundamental challenge to the decision’s legitimacy, particularly as existing laws in Nepal do not grant the government the authority to close or restrict internet content.
Bypassing the parliament
Article 17 of the constitution of Nepal guarantees freedom of expression to citizens, subject to restrictions imposed by law. In the current context, the lack of specific laws restricting internet content, the absence of legal basis in the decision, and the constitutional limitation on freedom of expression demand legal scrutiny.
Constitutionally, the government encroaches on the parliament’s authority to impose reasonable restrictions on freedom of expression through proper legislation. The dilution of parliament’s power by the government raises concerns, as even positive consequences do not justify decisions made without proper authority in a democratic society.
Past instances of bans without legal foundations, such as a mobile gaming application and protest restrictions in Kathmandu, were challenged in court, emphasizing the necessity, proportionality, and requirement by law. The unilateral banning of TikTok without reasonable, fair, just, and legal grounds prompts questions about the decision’s legality and constitutionality.
Internationally, Nepal’s unilateral ban on TikTok without sufficient grounds could raise legal issues related to international trade in services. The ban’s implications on constitutionality and legality go against the decisions and precedents set by the Supreme Court of Nepal.
Authorities from TikTok committing to assist Nepal with information sharing, despite the ban, raise concerns about the effectiveness of the ban. Technological difficulties are preventing a complete cessation, allowing users to continue engaging with TikTok and generating content. This ongoing use poses challenges as, in the future, if assistance from TikTok is required for investigations, the ban could hinder information sharing, creating a potential obstacle for the government.
While TikTok and other social media platforms should primarily exercise self-control and self-regulation, the state, as the guardian of its citizens, has an obligation to regulate and monitor platforms that pose risks. Rather than resorting to blanket bans on internet content, considered a hallmark of 21st-century freedom, the state should focus on utilizing existing laws to investigate and prosecute wrongdoers, ensuring justice for victims.
If necessary, in a democratic society, any restriction on freedom of expression should be promulgated through legislation, ensuring a just, fair, reasonable basis with proportionality and for a limited period.