Friday, 6 August, 2021
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OPINION

Safeguarding Privacy In The Digital World



Harsha Man Maharjan

Many scholars have said in the virtual world, people make public many issues that they before a decade or two thought to be the matters of private life. Digital platforms and companies know the deepest secrets which people did not want to share with anybody and these companies are thriving on the private data collected with or without consent from users.  States are also collecting personal data of citizens in the forms of national ID cards, smart driving license, etc.  And for many people who benefit from such data this availability of a plethora of "private" information means "the end of privacy". So we have to discuss privacy in the digital world in Nepal.
It is not that there is no policy or laws to safeguard privacy in Nepal. In fact, Nepali constitutions assured right to privacy. Article 28 of the present constitution says: "The privacy of any person, his or her residence, property, document, data, correspondence and matters relating to his or her character shall, except in accordance with law, be inviolable". Constitutions are supreme laws of countries so they describe rights and responsibilities of citizens and institutions. There is also a specific law, Privacy Act, 2018 that governs the issues of privacy.

Vital legal cases
Two important legal cases created background for the privacy act. The first case is Annapurna Rana vs. Kathmandu District Court in which the Supreme Court said that the right to privacy of the body mentioned in the 1990 constitution can't be violated without the consent of the person. When her brother and mother claimed that while in India she had sexual relations with a person and had gave birth to a child, so she did not deserve to get the parental property, on February 2, 1996 Kathmandu District Court ruled that her genital and womb be examined by gynecologists. Not satisfied with this ruling, she filed a petition at Patan Appellate Court and on May 9, 1996 the court gave the similar ruling. Then the case moved to the Supreme Court and on June 8, 1998 the apex court gave the verdict that conducting virginity tests of the woman without her consent was the violation of the right to privacy enshrined in the constitution as the fundamental rights.
In the decision the Supreme Court also mentioned that Nepal needed to have a right directly related to privacy. The second case is Babu Ram Aryal, et al. vs Government of Nepal filed as a  public interest litigation on the collection of  call/SMS detail report of 5,00,000 people by Nepal police in 2012 during the investigation of the murder of Supreme Court Justice Rana Bahadur Bam. According to the news published in Nepal daily Kantipur on which this litigation was based, at that time the police collected the personal data directly through the service providers and it was believed that there were chances of misuse of the data related to private relations. After four years, the Supreme Court did its final hearing by concluding that the government had to make a law related to privacy and that till there was such law the concerned authority needed to get permission from district courts in case such data was required.   
Privacy Act, 2018 aims to promote dignified life and assures people's right to privacy related to "body, residence, property, document, data, correspondence and character". However these rights can be violated under the consent of the people or according to law.  Article 34 mentions that some information of the people in public posts can be made public. They include data related to court proceedings, personal information about prosecution of offences according to the law, their income declaration, views expressed publicly, the information collected while doing investigative journalism according to press laws. The law also bars the installation of CCTVs in the residence of a person without consent and in "the toilet, bathroom or changing room" and when such cameras are installed it is mandatory to inform people about the presence of such machines. Similarly it also contains provisions related to the use of drones. Except in public places and borders, drones can't be used to get "any secret information of any public body, archaeologically important place, building of security agency, protected zone or zone of mine or minerals or at the residence of any person, without permission of the authorised official or such a person".

Chances of misuse
Yet activists and scholars have raised concerns that there are rooms for improvement mechanisms to safeguard privacy in the digital world. They point out that the law gives more power to the "authorised official". These activists think that there are chances of misuse from "authorised officials" when permissions are not sought from courts. Though law highlights the consent of users, often users accept the privacy policies without reading them. In such a context, there are also concerns on the safety and protection of the data collected by state authorities and private companies. 

(Maharjan is a senior researcher at an academic NGO Martin Chautari and writes on issues related to media and technology.)