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The press release issued by the Office of Attorney General (OAG) on the possible prosecution of an anonymous netizen for defamation and sedition reminds the citizens that one can remain anonymous only until one is unearthed. The concept of anonymity or pseudonym dates back centuries but the advent of the internet and social media led to the revival and resurgence of this concept back and the digital era is taking it to a new height. There are millions of anonymous netizens on various digital platforms including many Bhutanese.    

Online anonymous speech in many countries is legally recognized and protected. For example, United States has specific laws protecting the rights of anonymous speech. This is because anonymity “promotes a robust exchange of ideas, enables whistleblowers to freely disclose information” and expose corruptions and failures of public officials without fear of reprisals from anyone. Anonymity not only promotes free speech but also protects the privacy of the author as the author remains unknown. However, in hindsight, the right to anonymity can also be abused including taking revenge on others, forming cyber mobs, and hate groups, spreading misleading information, and fake news and creating disharmony in society. Balancing the right to anonymity and the protection of society is becoming more complex than ever. 

The fundamental right to freedom of speech, opinion, and expression guaranteed under Article 7 (2) of our constitution must not be interpreted too narrowly. The Chairman of the Constitution Drafting Committee noted that any “censorship and suppression of publication discourages all true scholarship and learning and is a travesty of truth” because, without free speech, the very essence of democratic foundations would be undermined, sows the fertile seed of authoritarian and dictatorship.  

Nevertheless, fundamental rights of free speech are not unfettered and subject to reasonable restrictions by the state. Defamation and sedition laws are some of the limitations to the fundamental right to free speech including the anonymity. Many governments across the globe use defamation and sedition laws to suppress and hunt down on dissents and opinions that do not agree with them. Sections 317 and 319 of the Penal Code of Bhutan (PCB) states that “if the defendant intentionally causes damage to the reputation of another person or a legal person by communicating false or distorted information about that person’s action, motive, character, or reputation” amounts to defamation and attracts imprisonment without an opportunity to pay Thrimthue for years in prison. Similarly, the Section 331 (e) states that a person is liable for sedition if a person “issues a scurrilous and malignant statement against the His Majesty or the Royal Government with the intent to defame, disrupt, encourage contempt, or incite hatred of the people against Bhutan” attracting a minimum of five years imprisonment.” 

Furthermore, the definition of reasonable restriction remains undefined in Bhutan. This case will create an opportunity for the judiciary to determine and establish a balance between the right to free speech, the right to privacy and the authority to impose reasonable restrictions. We had few defamation cases in the past but did not yield any result. As a democratic nation, our judiciary as a guardian of the Constitution must ensure that while abuse of anonymity must be punished, free speech and right to anonymity must be protected equally. Otherwise, it can create fear in the mind of individuals breeding self-censorship and undermine democratic values. 

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.

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