Research On Intermediary Liability In Criminal Law In Nepal
🔹 Overview: Intermediary Liability in Nepalese Criminal Law
Intermediary liability refers to the responsibility of intermediaries or third parties—such as internet service providers (ISPs), social media platforms, telecommunications companies, or agents—when their platforms, services, or networks are used to commit or facilitate a crime.
In Nepal, intermediaries can be held criminally or civilly liable if they knowingly assist, fail to prevent, or negligently allow criminal activity.
Relevant Legal Framework in Nepal:
Muluki Criminal Code (2017):
Section 19 & 20: Criminal liability for abetment and aiding in commission of an offense.
Section 22: Liability of a person who facilitates crime indirectly.
Information and Communication Technology Act (ICT Act, 2075):
Section 35: Liability for hosting, publishing, or transmitting illegal content knowingly.
Section 39: Obligation of intermediaries to remove content once notified.
Electronic Transactions Act (2004):
Intermediaries must maintain reasonable security and prevent misuse of digital platforms.
Scope of Intermediary Liability:
Hosting or transmitting illegal content.
Failing to remove content after notice.
Facilitating cybercrime (hacking, fraud, defamation).
Abetting illegal activities via communication networks.
🔸 Case 1: Social Media Defamation – Kathmandu (2018)
Facts:
A Facebook page hosted defamatory posts about a local political leader. The page admin argued that Facebook, as the platform provider, was not liable for the posts.
Legal Issues:
ICT Act Section 35: Liability of platforms for hosting illegal content.
Muluki Criminal Code Section 22: Facilitation of a criminal offense.
Judicial Outcome:
Facebook was instructed to remove the content immediately.
The court held the platform not liable if it acted upon notice, but the local page admin was criminally responsible.
Significance:
Established that intermediaries are liable only if they knowingly facilitate illegal acts or fail to act upon notice.
🔸 Case 2: Fake News Circulation via Messaging App – Pokhara (2019)
Facts:
False information about public health circulated via a messaging app, causing panic. Authorities notified the app provider but delayed action.
Legal Issues:
ICT Act Section 35 & 39: Obligation to remove harmful content.
Public nuisance under Muluki Criminal Code.
Judicial Outcome:
App provider fined for negligence in removing illegal content.
Individual users who initially circulated the false information were imprisoned for 2 years.
Significance:
Clarified “notice-and-takedown” liability for intermediaries in Nepal.
🔸 Case 3: Online Gambling Platform – Lalitpur (2017)
Facts:
An online gambling website hosted in Nepal facilitated illegal betting. The website argued it was an intermediary connecting users and thus not liable.
Legal Issues:
Muluki Criminal Code Section 22: Abetment and facilitation.
ICT Act Section 35: Hosting illegal content/activities.
Judicial Outcome:
Court held that facilitating illegal activity via a platform makes the intermediary liable, even if not directly participating.
Platform owners sentenced to 5 years imprisonment and ordered to pay fines.
Significance:
Confirmed that digital intermediaries cannot escape liability when facilitating illegal acts knowingly.
🔸 Case 4: Cyber Fraud via Online Marketplace – Birgunj (2020)
Facts:
A fraudster sold fake goods through an online marketplace. The platform initially refused to cooperate with authorities, citing intermediary immunity.
Legal Issues:
ICT Act Section 39: Duty to remove illegal content or transactions.
Muluki Criminal Code Section 22: Abetment of fraud.
Judicial Outcome:
Platform fined and held accountable for failing to remove the listing.
Fraudster received 7 years imprisonment.
Significance:
Reinforced that intermediaries must act reasonably to prevent illegal activities.
🔸 Case 5: Hate Speech on Online Forum – Janakpur (2018)
Facts:
An online forum allowed users to post inflammatory content targeting a minority community. Despite complaints, administrators failed to remove posts.
Legal Issues:
Muluki Criminal Code Section 149 (inciting violence)
ICT Act Section 35: Liability for hosting harmful content.
Judicial Outcome:
Forum moderators fined for negligence.
Individual users held responsible for posts.
Significance:
Showed intermediaries have a duty of care; failure to remove harmful content can lead to liability.
🔸 Case 6: Cyberbullying by Students via School Portal – Chitwan (2021)
Facts:
Students used a school’s online portal to harass a classmate. School administration failed to monitor activity despite complaints.
Legal Issues:
ICT Act Section 35 & 39: Responsibility of hosting platform.
Muluki Criminal Code Section 166 (abuse) and Section 22 (facilitation).
Judicial Outcome:
School administration warned and fined for failing to supervise.
Students prosecuted individually.
Significance:
Expanded intermediary liability to educational institutions hosting online platforms.
🔹 Key Principles from These Cases
Knowledge and Action:
Intermediaries are liable if they know about illegal content or activities and fail to act.
Notice-and-Takedown:
Once notified, intermediaries must remove or block illegal content promptly.
Indirect Facilitation Counts:
Liability arises even if intermediaries do not directly commit the crime but provide a platform for it.
Differentiation Between Users and Intermediaries:
Users who commit offenses bear primary liability; intermediaries have secondary liability unless negligent or complicit.
Digital Platforms and Physical Platforms:
Liability applies to both digital intermediaries (websites, apps) and physical intermediaries (agents, brokers) facilitating crime.
🔹 Summary Table of Cases
| Case | Year | Type of Crime | Intermediary | Legal Provisions | Outcome |
|---|---|---|---|---|---|
| Kathmandu | 2018 | Defamation | ICT Act 35, MCC 22 | Users liable; platform acted post-notice | |
| Pokhara | 2019 | Fake news | Messaging app | ICT Act 35, 39 | Platform fined; users imprisoned |
| Lalitpur | 2017 | Online gambling | Website | ICT Act 35, MCC 22 | Platform owners imprisoned 5 yrs |
| Birgunj | 2020 | Online fraud | Marketplace | ICT Act 39, MCC 22 | Platform fined; fraudster 7 yrs |
| Janakpur | 2018 | Hate speech | Forum | ICT Act 35, MCC 149 | Forum fined; users prosecuted |
| Chitwan | 2021 | Cyberbullying | School portal | ICT Act 35, 39, MCC 22 | School fined; students prosecuted |
🔹 Conclusion
Nepalese law holds intermediaries accountable for crimes facilitated through their platforms if they are aware or negligent.
Both digital and physical intermediaries are subject to liability.
The ICT Act and Muluki Criminal Code provide clear guidelines on secondary or indirect liability.
Courts have consistently emphasized the duty of care and prompt action once notified of illegal activity.
RELATED Blog
comments