Right to privacy law in digital age: Nepal needs to educate social media users on cyber democracy

Socialising is and has always been a part of people’s life

Jivesh Jha Jan 05, 2021
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Socialising is and has always been a part of people’s life. Social networking, be it virtual or real, has always been a means to share ideas, activities, events, and interests. However, the advent of internet technology has brought a significant change in the way people communicate, behave, and socialise. Still, individuals’ have a right to protect their private life. 

To put it simply, an individual has a right to prescribe the purpose and method of disclosure of information. He can decide when and under what circumstances his private/personal information – information that could cause mental distress and injury to him/her upon disclosure - may be made public.  It means an individual has the right to protect his information under the boundary of privacy.

Right to privacy in Nepal

Constitutionally speaking, the right to privacy is an inviolable fundamental right under Article 28 of the Constitution of Nepal which guarantees rights to individuals to decide who may enter their residence, and protects them against unauthorized intrusions. It provides the limits, the ability of state and private persons to gain access to personal information in regard to property, documents, records, statistics, and correspondence of others and to use and disclose such information.

This way, the right to privacy extends to those aspects of a person’s life with regard to which he or she has a legitimate expectation of privacy. And, this legitimate expectation of an individual extends to social networking sites as well. 

In other words, the right to privacy aims to protect bodily integrity, good name or reputation, and dignity. However, infringement may take place by the act of intrusion or by an act of disclosure of private facts that a person does not wish to disclose. 

Of late, social networking sites have been considered as one of the platforms for social interaction, passing time, information sharing, and to gain knowledge about others.

Legal framework

Nepal has enacted the Individual’s Right to Privacy Act, 2018 to implement Article 28 of the Constitution which guarantees every person the right to privacy in relation to the person, and his residence, property, documents, records, statistics, correspondence, or reputation. 

The Act, 2018 casts an obligation on the state to ensure every person’s right to privacy over his/her physical or mental conditions. Section 3 explicitly and authoritatively obligates the state to provide an atmosphere under which a person could secure privacy over his body, health conditions, sexual orientation, reputation or medical conditions, biological conditions, virginity, potency, consensual affair, pregnancy, and the likes. 

Likewise, a person is also conferred with the right to establish matrimonial bonding or maintain the sanctity of his/her family. However, the matters regarding court cases or family disputes arising between husband and wife may not be secured under the clouds of privacy.  A woman, save for a minor, shall have the right to maintain privacy over her pregnancy, says Section 6. A person’s right to privacy in relation to gender identity, virginity, consensual affairs, pregnancy, or bodily injury could be inviolable in case if she/he has been given some special privilege by the authority concerned. Also, the fixing of CCTV cameras in other’s residences, toilets, or private places is outlawed. 

The police action while investigating a case or the necessary action to marshal the evidence and trace the offender shall not necessarily be perceived as an intrusion of privacy (Section 5).  The Act, 2018 hosts as many as 12 chapters which aim to secure privacy in regards to body, residence, biometrics, property, documents, statistics, letters, and communication, character, electronic means, or personal information. 

Chapter 9 of the Act, 2018 recognizes privacy under the fundamental freedom as an essential deterrent against intrusion into personal space and data by state and private actors in modern technologically advanced society. The law authorizes the security apparatus or the investigation agency to intercept, monitor, and decrypt any information generated, transmitted, received or stored in computer resources.  But, the legislation fails to initiate a debate on the how, when and what kind of surveillance on cyberspace is the need of the hour. With this kind of cart before the horse approach of surveillance being encouraged by the law of the land, the state may turn into a police state where the government officials would have access to information of every citizen. 

The companies might sell the data of subscribers to third parties. This is the reason why most Nepalis receive emails or text messages on phones advertising a variety of products that are, at times, so foreign to our nature. Arguably, the right to privacy includes the right to receive or reject something. The unwarranted message from unknown companies is an infringement of privacy for an obvious reason. This law does not address this issue as well. 

Privacy issues in cyberspace

Identity theft or infringement of identity could constitute a crime of identity theft that may be in the nature of fraud. For instance, a cloned profile, which is unlawful and intentional making of misrepresentation causing actual prejudice or potential prejudice to others may cause identity theft. 

In contrast, the pertinent question that arises in the age of digitalization is that who should be held guilty for the user-generated contents uploaded on social media platforms? Secondly, it is not mandatory for the users to provide a real name on social media accounts. At a time when social media no longer remains an urban phenomenon and it has transcended the barriers, it becomes imperative to protect the sanctity of truthful information of individuals.

Above all this, the onus is on the defendant to prove his innocence over factual infringement of privacy or identity theft or any caused to plaintiff. 

Grounds of justifications

It’s unequivocally argued that every right has certain restrictions and exceptions. In Roman law, consent is considered as a ground of justification against privacy, meaning thereby, there is no harm done to someone who voluntarily consents to injury or to the risk of injury. This concept is expressed under the celebrated doctrine of Volenti non fit injuria. For instance, a doctor would not be held responsible for the infringement of the right to privacy if his patients consent to the disclosure of information relating to his health. 

Meanwhile, fair comment, media reporting, parliamentary privilege (i.e., privilege provided to leaders for speech and expression in sessions of house), public interest information, or established facts could no way be considered as an intrusion of privacy.    

International precedents 

Right to privacy is globally considered a sacrosanct fundamental right and it’s a part of the right to life with dignity. In the US, right to privacy is protected under the Bill of Rights, viz., First Amendment (Freedom of press, speech, and expression); Third Amendment (Protection of home from the quartering of troops without the consent of the owner); Fourth Amendment (Protection against unreasonable search and seizure); Fifth Amendment (Privilege against self-incrimination) and Fourteenth Amendment (Due process, i.e., just, fair, and reasonable substantial and procedural law).

In India, the Supreme Court decriminalized consensual sex, including homosexual sex, and struck down Section 377, Indian Penal Code, 1860 in the landmark case of Navtej Singh Johar vs Union of India (2018).   

In the UK, Article 8 of the Human Rights Act, 1998 guarantees every person has the right to respect for his private and family life, his home, and his correspondence. It is to be noted here that bodily integrity, personal autonomy, personal information, personal identity and not being subject to surveillance falls within the ambit of private life. Article 10 of the Act, 1988 guarantees freedom with respect to speech and expression. 

In Campbell vs MGN Ltd (2004), the House of Lords found Daily Mirror newspaper guilty for infringing privacy of supermodel Naomi Campbell. The newspaper carried a story about her personal life, including that of receiving treatment for drug addiction.

Article 17 of the International Covenant on Civil and Political Rights (ICCPR), 1966 provides for the right to privacy in regards to family or correspondence and this provision does not go counter to Article 28 of Nepal’s constitution. Article 12 of the Universal Declaration on Human Rights (UDHR), 1948 is almost in similar terms.  Article 1, which guarantees human dignity, and Article 19, which is put in place for the protection and promotion of freedom of speech and expression, of UDHR, 1948 supplement and supplant right to privacy. 

United Nations guidelines for the Regulation of Computerized Personal Data Files also provides for different principles that, in one or some another way relates to the boundary of privacy. It includes the principle of accuracy of data; the principle of the purpose of specification; the principle of security over the accidental loss, unauthorized use of files or misuse of data; and principle of trans-border data flows. 

Organization for Economic Cooperation and Development (OECD), an international organization established in 1948 which sees 34 states, including European Union and the US, as members, discuss data quality principle, security safeguard principle and openness principles and moreover these principles protect the right to privacy.

What’s required? 

In the age we live in, it’s an uphill task for the state and private persons to upkeep right to privacy through legislations. As to infringement can take place in one of the two ways, viz., either by an act of intrusion; or by an act of disclosure, protecting and promoting the privacy of other in regard to gaining entry to a private residence; reading private conversations; shadowing a person; searching person or possession; conducting unauthorized medical examination; reading someone’s private mail; hacking of someone’s personal social network or mass publication of facts has become crucial these days.             

Secondly, cloned profiles, identity theft, or data processing could lead to intrusion of privacy. Our laws are silent on certain issues, like who would be held liable for user-generated contents on social media, why should we receive unwarranted or unwanted (promotional) emails from companies, and why should we have a law to guard the privacy of persons or how would we deal with cyberbullies. 

In fact, the right to privacy is not just a legal issue but a sociological issue too. It intends to protect the privacy of persons regarding their property, relation, home, health, pregnancy, and among other personal details. 

The extensive use of cyberspace but with poor internet literacy and lack of knowledge about digital hygiene is a big challenge for Nepal.  Facebook or other social media has data about our whereabouts, the places we visit, the decisions we make, and details about our friends. Nepal’s privacy law (i.e., Act, 2018) sets out imprisonment for a term up to three years; or fine of up to 30,000; or both at the instance of violation of the provisions enshrined therein. 

Yet, compliance with this legal mandate is an uphill task in a country like Nepal where everyone is much concerned with political democracy and least bothered with cyber democracy.  

(The writer, a former law lecturer at Kathmandu University School of Law, is a Judicial Officer, Birgunj High Court, Nepal. The views expressed are personal. He can be contacted at jhajivesh@gmail.com)

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