Nepalese Cyber Law : An Overview

Nepalese Cyber Law : An Overview Subhash Ram Prajapati BE(IT) – Nepal College of Information Technology LLB – Nepal Law Campus Telephone – 00977-1-663...
Author: Elwin Moody
4 downloads 0 Views 83KB Size
Nepalese Cyber Law : An Overview Subhash Ram Prajapati BE(IT) – Nepal College of Information Technology LLB – Nepal Law Campus Telephone – 00977-1-6634220, 6631086 Email – [email protected] ABSTRACT Cyber Law includes an ample variety of political and legal issues related to the Internet and other communications technology, including intellectual property, privacy, freedom of expression, and jurisdiction. Proper cyber law must govern all the cyber activities. Nepal cannot be isolated from emerging technology and the problems raised by the technology. The cyber law of Nepal is on the process of development. Recent Ordinance of E-Commerce (2004 AD) is a milestone of cyber law in Nepal. The paper discusses about the brief introduction of cyber law and its implementation in Nepal. The paper aims at creating deeper understanding of cyber law in Nepal : the present law and the other necessary laws.

1. MEANING OF CYBER LAW Cyber Law includes an ample variety of political and legal issues related to the Internet and other communications technology, including intellectual property, privacy, freedom of expression, and jurisdiction. Cyber law governs the legal issues of cyberspace. The term cyberspace is not restricted to the Internet. It is a very wide term that includes: computers, computer networks, the Internet data software etc. Unlike other areas of business that can turn to historical traditions to help settle disputes and guide the development of the law, the law of the Internet has no history to fall back on. "Cyber Law" is instead being developed by judges who must do their best to fit legal disputes on the Internet into preexisting legal frameworks.

2. CONSTITUTES OF CYBER LAW The division of cyber law is really a tedious task. It comprises a variety of laws. Cyber law encompasses laws relating to : 2.1 Electronic and Digital Signatures 2.2 Cyber Crime 2.3 Intellectual Property (IP) 2.3.1 Patents for inventions

Umesh K. Rauniyar BE(IT) – Nepal College of Information Technology Telephone – 00977-1-4482482 Email – [email protected]

2.3.2 2.3.3 2.3.4 2.4 2.5 2.6

Trade marks for brand identification Designs for product appearance Copyright for material Data Protection and Privacy Internet Gambling Defamation

However, Cyber Law may or may not include all of them. It depends upon the necessity of the nation.

3. NEPALESE CYBER LAW – THE LEGAL BACKGROUND During the last decade, our society has become based on the sole ability to move large amounts of information across great distances quickly. Computerization has influenced everyone's life in numerous ways. The natural evolution of computer technology and this need for ultra-fast communications has caused a global network of interconnected computers to develop. With the development in new technology, the governing laws for the innovation has become an essential issue. As cyber Law is a broad topic, it is difficult to include all the provisions regarding cyber law in a single statute. At the moment, there are many acts in Nepal for the formulation of Information and Communications. Following are the major acts in Nepal regarding Information and Communication issues. 1. 2. 3. 4. 5. 6. 7. 8. 9.

Chhapakhana Tatha Prakashan Sambanshi Ain (Press and Publication Act) 2048 Nepal Press Council Ain (Nepal Press Council Act) 2048 Rashtriya Prasharan Ain (National Transmission Act) 2049 Shramajivi Patrakar Sambandhi Ain (Journalists Act) 2051 Jashooshi Ain (Detective Act) 2018 Likhatharuko Gopyata Sambandhi Ain (Document Privacy Act) 2039 Patent, Design ra Trademark Ain (Patent, Design and Trademark Act) 2022 Pratilipi Adhikar Ain (Copyright Act) 2059 Chalachitra Ain (Film Act) 2026

After many years’ efforts and a succession of ponderings, the government has crafted the much awaited Electronic Transaction and Digital Signature Act - Ordinance (ETDSA) – 2061, which is popularly known as cyber law. IT professionals, entrepreneurs, policy makers and legal eagles had been demanding for the performance of the act for quite a long time saying the information technology development could not take place as expected in the absence of the cyber law. So, the new act is seen as the first and foremost statute for the development of IT industry in the country.1 However, the act is not adequate in the field of cyber activities, the act has become a outstanding landmark in the history of development of cyber law in Nepal. The act has filled the gap of necessity of cyber law for overseeing the information exchanges, electronic business and online transmission of the information and the online communications.

4. ELECTRONIC TRANSACTION AND DIGITAL SIGNATURE ACT 2061 The Electronic Transaction and Digital Signature Act (ETDSA) – 2061 is a foremost of its kind in Nepal. The act has covered many aspects of creation, production, storage and transmission of electronic information and also the act has covered many facets regarding electronic fund transfers. The act has defined many terms related to cyber activities and also made provisions related to the same. It has a number of positive provisions and also the strong provisions of punishment against cyber crimes.

4.1 Strong Provisions The act has many strong provisions for the electronic transactions and digital signatures. It has defined the terms – Computer, Computer Database, Computer Network, Computer System, Subscriber, Key Pair, Private Key, Digital Signature, Access, Certification Practice Statement, Electronic Record, Electronic form, Public Key, Information, Information System, Software, Government Body, Social Organization etc. 2 The definitions of these terms are precise and generalized definitions have been made. The act includes the provision concerning electronic documents. It also has the terms for and certification

of electronic document3 and legal validation of electronic document4 and digital signature5. The tasks of stealing, deleting and altering computer source codes; prohibited access to computers; affecting the computer and information systems; publishing the illegal materials, breaking the privacy etc has been described as the crimes related to computers. 6 As per the nature of crime, wrongdoers involved in hacking, deleting information, stealing documents, digital signatures and software, pasting wrong information and improper and illegal materials would be brought under the judicial inquiry. As per the provisions of the law, the government is fully authorized to punish cyber criminals - both an individual or institution. Stealing, deleting and altering of the source code of the computers will be punished with up to two years of imprisonment and a fine of up to Rs.200,000 or both based on the severity of their crime7. The same punishment has been quoted for the one who does the unauthorized access of the computer information systems8. Likewise, people have to pay Rs. 100,000 or face five year’s imprisonment or both for pasting wrong information in the websites9. The act has also made the provisions for the helpers of the criminals, according to which, the helpers will be punished with half of the punish with compared to the chief criminal10. In the mean time, the Act has a provision for the office of controller that issues license of certification to Information Technology (IT) industries. It also scrutinizes the implementation of the law and regulates the Information & Communication Technology (ICT) activities. It also gives legal position to information posted on the web site of government offices, government run corporations and the local bodies. Similarly, information posted on web sites or correspondence done via electronic devices can get legal status. It has also given legal status to various banking transactions through electronic media, which will be instrumental in boosting economic activities 3

1

Bashu Dev Phulara : "Nepalese Cyber Law Pros And Cons" The Rising Nepal, 17th Janaury 2005 p. 4 2

The definitions of these terms has been done under Article 2 (Chapter 1) of Electronic Transaction and Digital Signature Act (ETDSA) – 2061

Article 3, ibid. Article 4, ibid. 5 Article 5, ibid. 6 These provisions are described under articles 44-59 (chapter 9) 7 Article 44, ibid 8 Article 45, ibid 9 Article 47, ibid 10 Article 54, ibid. 4

throughout the world through Internet. The law has also made provision of an Appellate Judicial body to listen to complaints, cases and cyber related crimes. Earlier, police were dealing the cyber crime but they were not aware about the technical aspect of the cyber crime and the actions were not effective. The digital signature and electronic transactions have established legitimacy at par with traditional manual transactions, paving the way for the development of ICT in the country. The Act has also cemented way to provide legal status to online news portals in the country, which are providing instant and reliable news and information to hundreds of thousands of people within the country and abroad11. There is no doubt that the cyber law has provided a new thrust to the Information Technology (IT) sector in the country. Computer gigs and IT professionals are optimistic that the law would create a constructive environment for conducting business using IT. Moreover, it has filled the void in the cyber industry. More to the point, the introduction of the IT policy 2002, establishment of IT Park and formation of High Level Information Technology Commission are other positive and considerable steps taken by the government to gear up the IT Industry. The government had introduced IT Policy in 2000 that aims at putting Nepal in the global ICT map within five years. The main manifestations of the IT policy to put the country on the global map of IT within 5 years, making IT accessible to the general public, developing IT people and giving them employment opportunities will definitely build a knowledge-based society and establish knowledge-based industries. To make this vision come into reality, the present act seems to be very much effective. The policy, which stresses on the involvement of the private sector in IT infrastructure development and seek foreign investment in various aspects of IT such as IT park building, resources development, technology transfer and human resources development will be affected by the rule of this act. This act can be considered a signpost in the enhancement of IT in the country. The act will be implemented in all government offices and related organizations, and local bodies. With the accomplishment of the cyber law, all the transactions and signatures made through e-means will have legal recognition, enabling business to be done from any part of the world. The act has provision for punishing cyber crime and an appellate body to deal with it.

11

Supra note 1

4.2 The Black Sides Despite the positive twinges of the new law, a number of IT related provisions are still missing in the given act. It seems that the corrections are necessary for the better administering the cyber related activities. Following are the week points in the Electronic Transaction and Digital Signature Act (ETDSA) – 2061. 4.2.1. The law has not included the definition nor the provisions regarding Intellectual Properties (IPs). One of the main magnetisms of the World Wide Web is that it is possible to download magazine articles, reports, song titles, videos and photographs, all of which are protected by copyright. A computer software program placed on the Internet can also be downloaded at sites around the world and re-posted, and yet it never leaves the computer of its designer. It is also possible to download copyrighted graphic and textual material posted to a web site where it can be changed, merged with other material, returned to cyberspace and perhaps even sold as a different product altogether. This has created a headache for publishers and a potential nightmare for the creators of articles, songs, software and films, as the owners will want to protect their materials. The present Law simply do not adequately cover electronically transmitted copyright material. Also the law does not include the following copyright issues about the internet websites : a) b) c) d) e)

Linking Framing Caching Mirror sites Third party liability

4.2.2. Since the Internet has become such an important marketing tool, it is self-evident that the right of a proprietor to use a domain name, which is identical to or incorporates its trademark, is of the utmost importance for any business that the proprietor intends to conduct on the Internet. A domain name is a business asset. In the last few years, a vast number of disputes have arisen between parties which do not have any legal right to register or use specific domain names and the true trademark proprietors, which claim to be legally entitled to register and use the relevant domain names. The given act does not have any provisions regarding such domain name battles. Neither the act has defined the term "domain name" as a trade mark Intellectual Property. 4.2.3. In essence the problems of physical location and distance (and time) as an obstacle to economic development have been overcome by e-commerce. A

person’s need through centuries to be physically close to markets has fallen away. Services can be supplied and goods sold remotely, and that is the crux of the problem. Though e-commerce is a very burning issue in the country and also it is being flourishing in the country day by day, the act does not contain the proper provisions for the electronic fund transfer and the taxes related to it. Most taxation and tax collection systems are based on the premise of physical presence of a taxpayer in a jurisdiction as a prerequisite to having a taxable presence there. This premise potentially renders the application of these systems ineffectual in an e-commerce environment. The law is also silent about the methods of electronic fund transfer. 4.2.4. A couple of major online news portals, including nepalnews.com.np, kantipuronline.com, and one dozen e-magazines like – cybernepal.com.np, ezine.com.np, bajra.net.np are being published from Nepal at the present. But the law has also failed to address the problems of online media. There is no clear provision to regulate online media in the cyber law but the government can introduce regulations under the Act in order to regulate and facilitate the online media12. 4.2.5. Gambling on the Internet presents several problems for the law. Since gambling has always been a heavily regulated industry, it is probably appropriate to mention its regulation as the first problem. How do we regulate something that takes place on a medium that knows no national borders and that relies on technology that the law simply cannot keep up with, especially when the issue at stake is something that no-one seems to be able to agree on. When gambling opportunities first became available on the Internet, attempts were made by some attorneys general in the United States to prohibit or regulate it under existing legislation. Most notable of these was the federal Wire Act, which determines: “Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission of interstate or foreign bets or wagers, or information assisting in the placing of bets and wagers, on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined under this 12

Ram Humagai : "NEPAL: Landmark Cyber law is silent about online media" http://asiamedia.ucla.edu/article.asp?parentid=14 934, September 23, 2004

title or imprisoned not more than two years or both.” 13

As can be expected, there are difficulties in applying these provisions to the Internet. This is bitter fact. Nevertheless, certain provisions in this regard can be made. The current Nepalese law in response to the egambling is absolutely silent. 4.2.6. The act has prohibited the transmission of offensive and illegal materials. But the act is silent in the matter of surfing such sites and downloading materials from those sites. Most of such works are done through cyber cafes, Government should keep record of all the cyber cafes in the country and should make provisions for registering the cyber cafes. There should be crystal clear law regarding the transmission and selling pornographic and other offensive materials 14. 4.2.7. It still needs authority to verify digital signature, which is yet to be formed. Subjects related to payment gateways are also not included in the new ordinance. 4.2.8. So far, the government has been dealing the cyber offenders under the Public Offence Act. It was a wrong perception that public offences, software piracy and cyber crimes are all the same. In reality, they are entirely different. 4.2.9. The law is not stringent enough for the holistic depiction of cyber related crimes. It is not hard-hitting to online perpetrators as well. The imprisonment and or fines as determined by law are not rigid enough when compared to other countries. Though the law has called for a new era to IT industry, it still needs a lot of homework if Nepal is to expect a boom in IT sector. There is a need for e-procurement laws. The law has covered aspects related to edocumentation but some Internet laws and policies covering the aspects of intellectual property rights are desperately needed.

5. PROBLEMS AND SOLUTIONS Nothing in this world is perfect. Neither is the case of cyber law in Nepal. Firstly, it is the emerging law in this field and since the technology is emergent, the new law on the subject of technology is difficult to develop.

13

Title 18 United States Code Section 1084(a) (1995), quoted in Maretha Eksteen : "Internet gambling and the law" http://www.cyberlawsa.co.za/cyberlaw/cybertext/c hapter11.htm 14 Badri Raut : "Apuro Cyber Kanoon" Kantipur, 18 th Janaury, 2005 p. 7

Nevertheless, certain weaknesses in Nepalese cyber law can be conquered. Following are the problems those are found in current Nepalese cyber law and their achievable solutions.

a.

b.

5.1. Domain Name Disputes A number of inventiveness were launched in order to endeavor and attempt the rapidly increasing problems surrounding the obligation and use of Internet domain names. Probably the most important initiative was the establishment by the Internet Society of the International Ad Hoc Committee (IAHC). The commission had 11 members, including legislature from the World Intellectual Property Organization (WIPO), the International Trade Mark Association (INTA) and the International Telecommunications Union (ITU). The committee submitted its final report in February 1997, announcing a plan which included the following measures15 : a. the introduction of seven new generic toplevel domains (in addition to the five existing ones) b. the creation of international panels of experts to resolve disputes and challenges to domain name registrations, to be administered by WIPO c. the appointment of up to 30 new domain name registrars Nepal should also look after such considerations. Particularly, certain provisions should be made for the registrations of .np domain names. First, the domain extensions should be increase (for eg- .info.np, .biz.np etc). Second, certain governing body should be formed and the registration of domain name should be made up to limited number only.

5.2. Electronic Fund Transfer and Taxes The Internet is a means of transportation for worldwide sales where even the smallest electronic business enterprise has the potential to achieve world-wide sales of products and services. This entails world-wide tax compliance in an untold number of foreign jurisdictions. For dishonest taxpayers the Internet is a new tax-free haven where anonymous buyers and sellers, offshore web sites and untraceable cash make tax evasion easy. There should be legal provisions for electronic fund transfer and also some taxes should be taken in such transactions. This will also increase the government income.

c.

d. e.

create an enabling legal and regulatory environment for open and fair participation in e-commerce support technological developments that will lead to the establishment of global connectivity ensure that legal systems and international trade agreements between nations are adjusted and reformed to accommodate the new concepts of law establish appropriate law enforcement to prevent crimes in the information space. promote education to increase information literacy among all citizens

5.3. Online News Portals The online news websites should also be acknowledged by the government. Government should also provide advertisements for these online magazines. There should also be classification of online magazines as that is done in the case of paper magazines.

5.4 E-Gambling Gambling has always been a controversial issue and views on the topic differ, from gambling being regarded as a social evil to its being seen as a perfectly acceptable activity. But whatever our personal view on the issue is, gambling has traditionally been either prohibited, or when allowed, heavily regulated by governments around the world. E- Gambling is not being minimized due to the lack of proper laws. At least hosting of gambling site should be restricted in Nepal.

5.6. Pornography Government should be antagonistic aligned with the pornography in the world wide web - the Internet. Surfing of pornographic sites should be made illegal. Government should track all the surfers of pornographic and other illegal sites. Particularly, there should be provision for registration of cyber cafes, from where such activities are mostly done.

5.7 Updating the laws There are many laws in Nepal which are related to the cyber activities. These laws needs to be revised.

Particularly, following steps should be taken

For instance, the new copyright act 2059 has included the copyright provision for the computer programs as well, however, this only is not sufficient. The copyright provisions should also be made for internet websites and so forth.

15

Other statutes like (Patent, Design and Trademark Act) 2022 etc should be revised according to the current necessities.

M Viljoen "Trademarks, domain names and patents" http://www.cyberlawsa.co.za/cyberlaw/cybertext/c hapter3.htm

5.8. Other issues

Authority for the verification of digital signature has been essential to be formed. And also the current cyber law should be made stringent enough for the holistic depiction of cyber related crimes. The imprisonment and or fines as determined by law should be made stringent enough when compared to other countries.

6. CONCLUSION Cyber Law has been introduced in Nepal. Electronic Transaction and Digital Signature Act - Ordinance (ETDSA) – 2061 is a pioneer cyber law in Nepal. Though it has played a vital role in the proper development and utilization of new technical advancements, it too has certain limitations. This law is silent about few such things that should be taken into account. If certain corrections are carried out in the present law, and the revisions of other law are done with respect to current scenario, the cyber activities can be controlled up to a huge frontier. Moreover, if the new laws regarding new technologies can be created simultaneously, the technical advancement will flourish vigorously. This encroachment will ultimately benefit the society, nation and the world.

7. ACKNOWLEDGEMENT Prof. Dr. Bharat Bahadur Karki – Nepal Law Campus, Tribhuwan University, Kathmandu

8. REFERENCES Books/ Dissertation [1] Bajaj Kamlesh K. and Debjani Nag – "ECommerce : The Cutting Edge of Business", Tata McGraw-Hill Publishing Company Limited, New Delhi, 1999 [2] Deborah, G, Johnson – "Computer Ethics", Pearson Education Asia, Delhi, 2002 [3] Deiel, H.M. et al. – "Internet & World Wide Web", Prentice Hall of India, 2003 [4]. Joseph, P.T. – "E-Commerce A Managerial Perspective", Prentice Hall of India, New Delhi, 2004 [5] Kasajoo, Binaya Kumar – "Suchana Prabidhiko Shakti ra Nepalma Yesko Upayogita", Dreams & Ideas Private Limited, Kathmandu, 2003 [6] Prajapati, Subhash Ram – "Cyber Law & Its Position in Nepal", LLB Dissertation submitted to Faculty of Law, Tribhuwan University, 2005 [7] Rawls, John, - "A theory of justice", MA : Harvard University Press, Cambeidge, 1971fs Statutes 1. Copyright Act, 2059 2. Electronic Transaction and Digital Signature Act Ordinance (ETDSA) – 2061 3. Patent, Design and Trademark Act, 2022

Website 1. Official Site of World Intellectual Property Organization (WIPO) http://www.wipo.int