Dear Broadcast Ministry, Why this Dis-Information and Fraud-casting?

What would you call a regulator that is helpless and hapless against the powerful….and positively oppressive towards the weak?

Would you call such a regulatory agency unbiased?

So goes the tale of the Ministry of Information and Communication in Nepal that allows Internet players the fullest freedom to break all laws, but cracks down heavily on any TV operator who it whimsically imagines, has defied its archaic regulations.

In Nepal, there is a National Broadcast Law, under whose ambit the entire Video/audio content must be regulated, whatever be the technology of broadcast.

But the Ministry, in all its august wisdom has allowed Internet players the freedom to break all laws of Nepal. What is crime as per law has been gifted by the Hon’ble Ministry as a divine right to the Internet industry. Kill the poor bird and feed it to the fact cats, their policy is quite simple.

Mockery of Law

The National Broadcast Law cannot be modified without the intervention of an enlightened Parliament.

But the conduct of Ministry officials over the last few years badly needs someone to shine a light upon what has become an open dance of discrimination against the TV players in Nepal.

Before anyone else, the Ministry knew that Internet would encroach into the arena of TV by offering convergence. Every new technology that has more potential than the existing one, must thrive and grow, so the growth of Internet understandably expected to finish TV in some time.

But what is not expected is the totally discriminatory attitude towards two technologies in the eyes of the law. The regulators cannot discriminate. An offence is an offence whether it is committed by an Internet or a TV company. The regulator cannot single one out for punishment and allow the other to trample the laws unchecked.

If the government had planned that it was NOT going to allow a level playing field to TV entrepreneurs then what was the need to force TV industry to invest billions in the conversion of analog to Digital TV set top boxes?

All Laws are breakable for the Internet lobby. But Why this selective ignorance of law on part of the Ministry?

Why this legal, moral and constitutional failure to implement the law equally?

To give a small snapshot – the laws that the powerful Internet lobby of Nepal breaks on a daily basis can be broadly covered under the following heads:

1) Downlink Policy

2) Copy Right

3) Censorship

4) Pornography, Indecent representation of women

5) Caste based discrimination

6) Content of anti-national and seditious nature

7) Utter Contempt of Constitutional bodies

8) Money Laundering and Flight of capital via illegal and quasi-legal routes

9) Online gambling, betting, Hundi etc

10) Crypto

11) Nepal based terror activities coordinated via the endless opportunities online

12) Sexual crimes against children and Child Porn

13) Clean Feed Law of Advertising free Video content

Yet, not even the little finger seems to move to defend the law of the land – by the concerned, overseeing Ministries. Why?

Is Internet based TV and Video outside the ambit of all above-mentioned laws?

How is any video viewed over mobile phones, available to everyone, or any video viewed on millions of android/iOS TVs, Tablets, Laptops, Desktops or other devices different from the content watched on Television?

Any publicly accessible Video/Audio/Image/Representation or Advertisement for that matter is bound by the Nepalese law to meet stringent requirements. Then why are these stringent requirements being SELECTIVELY enforced only upon the dying creed of digital TV that merely has a few lac customers and NOT being imposed on Internet at all that has over 30 million customers?

Why Online (Internet based) law breakage is NEVER being taken into account even as the user base exceeds tens of millions – even when the laws broken directly relate to TV formats?

Why have you created a non-level playing field which rewards the law-breakers and punishes the honest tax payers of the TV industry only?

Why TV alone needs Monitoring but Internet doesn’t?

An entire cell has been set up for monitoring cable TVs that number only a few lacs, but all the other devices numbering tens of millions – that carry the same or different ENTIRELY ILLEGAL Video content are left completely un-monitored. Why?

Why is the Ministry ignorant of the law and fully complicit with law breakers?

Secretary Sir, You probably watch TV on Chromecast….but is that legal?

Under what provision of law does that content stream into Nepal?

The viewing of Netflix and Amazon online by many employees in your august Ministry is already in your direct knowledge. But under what provision of law is that content even allowed into Nepal? (Of course, the total number of subscribers and the cash outflow runs into millions of USD for illegal content BUT then, why is that not being stopped?)

At every level your ministerial colleagues are using Internet and OTT apps; and are well aware that the above laws are being blatantly broken every passing day, then how is your Ministry not a party to this blatant illegality?

Only Monitoring and penalizing TV has become a habit in your department and not monitoring and acting against any kind of Online activity is equally as much your Ministry’s trademark.

Is ignorance of law an excuse for regulators? Or Is that your Ministry’s brand of ‘unbiased’ justice?

Why this blatant injustice to Nepali content creators?

If the soft porn on Netflix and Indian OTT platforms can be streamed into Nepal breaking the Broadcasting, Censorship and Tax laws, then why can’t Nepali content creators create similar content.

 Why this hypocrisy of ‘Morality’ to be maintained at home; and ‘Immorality’ to be freely imported in complete violation of the law?

Don’t Nepali people have a right to know the relevant provision of law that gives the Ministry the power to discriminate and implement the law in such a lopsided manner?

 Any answers, anyone? Or has the system sunk so unfathomably low… please try, if you have any answers at all.

You still want more elaboration of your misdeeds, okay then here it is….

1) Foreign OTT Apps: In Nepal, viewers can only watch foreign programs distributed under licenses  provided by the Ministry. The broadcaster is clearly told what kind of programs to broadcast. Therefore, it is completely illegal to broadcast foreign programs through various apps through the internet. There is a legal provision that no program can be broadcast without being covered under the National Broadcasting Act.

SO UNDER WHICH PROVISION OF LAW has the Ministry, which is the regulatory body,  allowed linear and non-linear video programs violative of the National Broadcasting Act by allowing foreign OTT apps to encroach upon the Nepal market unchecked?

This is a serious economic crime too as neither the constitution, nor broadcast laws or various subsequent regulations of Nepal permit the operation of the OTT platform in the absence of a governing law. Potentially, everyone in the regulatory and oversight bodies is liable for prosecution at any time.

2) Finance Ministry Participation:

UNDER WHICH PROVISION OF LAW does the Finance Ministry allow the flight of capital to foreign OTT apps, unincorporated in Nepal, unlicensed by the concerned Ministry, not paying any taxes etc etc.

Regarding Commercial Bank Prepaid cards (Dollar and Online) and Payment gateways – why no guidelines have been formulated for mandatory compliance with the whole gamut of laws. This is like contraband, like selling drugs online. Why should this perverse state of affairs not be investigated by the CIB?

How Online wallets in Nepal, such as E-sewa, Khalti, IME Pay etc. allow purchase of such illegal foreign apps and facilitate payment of monthly subscriptions?

 

 There is a binding provision in the National Broadcasting Act that no broadcast can be done without obtaining a license. In violation of which, according to Article (17) 1 of the National Broadcasting Act 2049, Rs. 1 million for each illegal channel broadcasting with a license fee and the same amount of fine is provided for. There is a legal provision to impose a fine of Rs 2 million.

For these illegal transactions – Who is the licensee of the Ministry? Who is the broadcaster?

Then how can these Online wallets take payments? And on whose behalf?

If there is no licensee/broadcaster then how do they NOT attract the penal provisions cited above?

What explains six years of inaction and tacit collusion on this issue?

OTT apps have been around for 6 years in Nepal without any governing law. How?

 Advertising Board – Why is it applicable only on TV?

The advertising board was formed with much fanfare over to implement the Clean Feed law to scrub foreign ads in all forms.

Why has it been implemented only on a few lac TVs and nothing is being done to stop the flow of internet ads?
With all the impotent rage of your Ministry, you forced the decision on the TV industry but online ads run all over Internet in gay abandon.

Please don’t tell us that the Ministry is not aware of:

 Google ad sense

Facebook ads

Youtube ads

OTT and other In-app ads

Website ads

When are you going to remove the foreign ads from there?Why have you only singled out TV for this law?

All these ads are running full steam without even any questions being asked and the combined turnover is in billions causing immeasurable loss of revenue and tax. Why?

Then why are you solely killing the honest tax-paying TV industry with a minuscule number of subscribers and lining the pockets of Internet players who are already fattening.

Is this conduct defensible? Is this justice and fair play?

Downlink Licence, Censorship, Copyright etc.?

The irksome conduct and abuse of power by Ministry officials who are condoning and promoting this non-level and discriminatory playing field for TV operators has become unbearable. There is not an iota of legal, moral or constitutional propriety in their actions. There is no intent to catch the big fish but always the rage to punish the small fry.

Kindly justify – Why should the TV broadcasters/re-broadcasters take a license, pay taxes and pay royalty when others can ply the same trade from a foreign country without doing any of these things?

Please have a clear conscience. You (Bureaucrats and those above them) CANNOT discriminate and abuse your imagined power. You have a constitutional responsibility to discharge and you don’t have any power over the law of the land. The law of the land has all the power over you.

Whether it is unicast or multicast, it is still broadcast and Internet is not an excuse to break laws. If equality of law is not upheld, at the individual or the corporate level – then the nation is sliding into a crisis of constitutional morality. All Video or audio content attracts exactly the same legal provisions with respect to copyright, censorship, advertising, decency etc.

 If the authorities continue to turn a blind eye to the wrongdoings, then they are defacto in contempt of their constitutional duty.

 Most importantly, their actions to harm the TV industry also attracts the Law of torts.

 The bureaucrats, whatever they may think of themselves, have no discretionary powers assigned to them by law. Not even in the absence of legislation. Their word is not a law in the absence of a statute or political will. They are not kings or overlords dispensing favours to the chosen few while punishing others. They are public servants who have to answer for their actions.

In these times, Private games of public loss seem to have become the favourite pastime of the power elite in weak democracies. Abuse of authority is so rampant that the concept of fairness and justice has become alien to these new-age courtiers. When any public servant exercises his/her power, it ought to be in public service. Sadly, most public servants today don’t seem to serve the public but behave like the masters of the public. Hail the new tyrants!

When any public authority has a duty to dispense justice, then justice should not only be done but it should be seen to be done. This is an adage that is quite common among the legal fraternity. Another common saying goes like this – Ignorance of law is no excuse. So, if any ordinary citizen breaks the law, he cannot simply say that he did not know that was wrong. But what about our regulators, the people running the government? Can they break laws with impunity?

Arbitrary exercise of power and discrimination are the symptoms of regulatory decay. Any colourable exercise or frank abuse of power is the direct corollary of vested interests lurking behind. It is often said that it has to be the rule of law and not the law of the ruler. But there are many in the establishment who imagine themselves to be above the law.

Looking at the rigmarole going on in the Hon’ble Supreme Court, we cannot comment on anyone ie the bureaucrats and politicians; but this malaise seems to be universal.

But when things slide into such an irreversible downward spiral, then it is the job of the independent media to point out the flaws and warts. This is a responsibility we cannot shirk. When the system rots and the stench reaches high heavens, it is conscientious journalists who do their job without fear of favour to bring the abuse of power to light.

As we look at society through the prism of deeper analysis, we cannot just see what is popular and keep away from doing the THE RIGHT THING – our pursuit is the pursuit of the unadulterated truth, howsoever uncomfortable it may be, or even if no one likes it.

THAT gentlemen, Is your duty?

You need to monitor everything and everyone, and act equally.

Or like every dictator, wait for a tragic outcome!

 

 

 

 

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