Netizens on social media are neither an investigating officer nor a judge

Netizens becoming both judge and jury is one of many negative impacts of social media in Bhutan. It has become a trend in recent times where an anonymous post with unsubstantiated facts and allegations are gaining momentum. These posts are often filled with vested interests and hominem arguments. Though most of them originate from anonymous profiles, they often get shared, liked, commented, character assassinated, and mob-lynched by many netizens. 

Freedom of speech, opinion and expression indisputably lies at the centre of democracy and “check government tyranny” but it is not absolute. For example, under Article 7(22) of our Constitution, one individual’s fundamental right ceases the moment it infringes on the rights of another.

Unverified and unsubstantiated facts or allegations are a gross violation of not only the fundamental rights of people but also illegal and ethically and morally wrong. It may destroy many innocent individuals and their families as they face mental trauma and social stigma for no reason.  

 Constitutionally, any investigations based on presumptions or passing of judgments without due process of law are unconstitutional and illegal. Under Article 7, a person’s right to life, liberty, and security can be deprived only with due process of law. Due process “is fundamental rationality and fairness.” The right to a fair trial is considered “a central pillar of our criminal justice system”.

 A fair trial is designed to ensure the right to presume innocence until proven guilty guaranteed under Article 16 of the constitution. Most importantly, such posts deliberately undermine the fundamental principles of justice, the equality before the law and a person’s right to privacy and protection of honour and reputation and his or her family.

The Information, Communications, and Media (ICM) Act of Bhutan 2018 makes it accountable for any content one generates. Section 464(2) defines content as “any information, sound, text, data, picture (still or moving), other audio-visual representation, signal or intelligence of any nature or in any combination thereof which is capable of being created, processed, stored, retrieved or communicated electronically or in other forms.” Thus, anything one does on social media constitutes content under Section 464(2). 

 Under Section 426 of the ICM, posting, sharing, or commenting on photos, images, or information in any form may constitute a criminal offence of online harassment. The accused could face both imprisonment and liable to pay compensation to the victims. Section 464 (52) harassment “includes persistent conduct which is calculated, or likely to cause insult, injury, intimidation, enmity, obstruction, stalking, annoyance, distress, or extreme irritation to any person, making use of such ICT device, apparatus or facility or system.”

 A person can also sue the content generator for defamation. Defamation is both a criminal offence and a civil wrong in Bhutan. It can attract up to five years in imprisonment and hefty compensation.  

The least understood negative impact of any criminal conviction is on a person’s opportunity to contest any election in their lifetime. Section 179 of the Election Act of Bhutan, disqualifies any candidate from participating in any elections during an entire lifetime if convicted.” 

Therefore, netizens must use social media for productive discourse and healthy debate to build a vibrant democracy instead of investigations and passing judgments based on presumptive and unsubstantiated facts. If unchecked, such fallacies of personal attacks could become a threat to our nascent democracy as they can generate undesired sentiments, generate unhealthy and divisive discussions and debate in society. 

Sonam Tshering

Lawyer, Thimphu

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

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