Draft Bill On Privacy Receives Many Suggestions, Comments

With the aim of collecting views about newly drafted proposed Privacy Bill from diverse stakeholders, a discussion program was in Kathmandu on August 5, 2018.

The program witnessed the presence of lawyers, media experts, representatives from civil society organizations where they discussed on the draft bill to identify its strengths and weaknesses so that it would be helpful for further review and amendment of the law.

FF Chief Executive Taranath Dahal said privacy is one of the critical issues that have a direct effect on the democratic values of the nation and the right to freedom of expression and information guaranteed by the constitution. Therefore in-depth discourse must be observed in this issue. He focused on some of the provisions that are vague and doubtful which might give ultimate power to the authority mentioned in the act.

He observed that the draft had ignored the data protection concept which is much essential in today’s context where there is the rampant misuse of the data.

Stressing on the ambiguous provisions, advocate Santosh Sigdel said the drafting institution is not clear about the concept of privacy, so many requirements need further clarity. He said, “The bill has taken data in an old concept. Although the bill has defined the data, it needs to be defined in the wider sense. As many sections talk about the rightful authority, who that ‘rightful authority’ is not mentioned anywhere.”

Advocate Prabin  Subedi commented, “Though late the government initiative to draft the bill is apparent. Nevertheless, the bill has completely ignored the concept of the tort/compensation to the aggrieved and has focused on corporal punishment which is upsetting in the changed context.”

Similarly, media and RTI expert Dr. Ram Krishna Timalsena advised that there was the need of separate data protection act as this act is not enough to establish guidelines on the protection of data and remedy for breach of them.

He said, The act has not considered the scope of violation made by the private sector and has only considered the possible violations of the public sector. This needs to be changed. The private sector also violates privacy, so this must be incorporated into the bill. ”

Advocate Baburam Aryal viewed, “The data must be separated making it, formal and informal and they should be treated differently. Similarly, a different body should be established to focus on the issue of privacy just like the RTI commission .”

Moreover, General Secretary Dharmendra Jha said this draft bill could challenge the RTI. So, balancing RTI and privacy is imperative; he underscored.

Another advocate Tanka Aryal observed that confusion would emerge against privacy because even the criminal code which is being implemented after some days had some provision on confidentiality. A separate law on privacy and the privacy provision on other requirements may be contradictory, resulting in further confusion, he warned.

Nepal Television Chair Dr. Mahendra Bista opined that the words in the draft are vague and the provision on the aggrieved party is missing.

Station Manager of the Radio Sagarmatha and FF Vice-Chair Sajahman Shrestha said that clear concept on mass surveillance and social media was missing in the act.

Moreover, an official at Nepal Telecom, Shaligram Parajuli, suggested the incorporation of ethical hacking in the bill so that proper management of data and privacy could be ensured. Similarly, adequate infrastructures play an essential role in data protection and coding, he argued.

FF Chair Hari Binod Adhikari said it was apt time to have such discussion on the policy issue, which garnered such comments and suggestions. It can be submitted to the concerned agencies to make them aware of lacks and faults on the draft of the privacy bill on time.

The program organized by Freedom Forum, Citizen’s Campaign for Right to Information and Internet Society Nepal remained a useful platform to garner views of the people from different sectors. Relying upon the ideas from the participants, a review of the draft bill will be submitted to the concerned authority before it is tabled in the parliament.

The program disca used different provision mentioned in a drafted bill that can be unjust and controversial in the future. Similarly, stakeholders and the representative from civil society analyzed the law to figure out its weakness and limitation.

There hasn’t made any changes in the provision relating to Right to Privacy for the last 28 years. The constitution of 2047 to present shares the same sort of provision regarding Right to Privacy.

Constitution of Nepal 2072 guarantees Right to Privacy in Article 28 as “the privacy of any person, his or her residence, property, document, data, correspondence and matters relating to his or her character shall except by law, be inviolable.”

The discussion program on privacy draft bill made some conclusion that includes:

  • The statement regarding data protection needs improvement.
  • The provisions for electronic data in the bill are not well addressed.
  • The bill only focuses on protecting organizational data and avoids individual data.
  • The bill does not mention any provision relating to metadata.
  • The bill misses on maintaining confidentiality regarding travel and ticketing.
  • The bill insecure consumer behavior data.
  • The bill doesn’t focus on mass surveillance, interception, and collection of personal data.
  • The provision regarding child privacy is vulnerable.
  • The bill neglects psychological privacy and overlooks all the aspect of physical intimacy.
  • The provision of ethical hacking is needed to be mentioned.
  • The provision for handling the data is not focused.

Some of the questions that took place in the discussion program include:

  • Will the Right to Privacy push Right to information towards risk?
  • Should there be separate provisions for the right to data protection and right to privacy?
  • Should there be different provisions for public data and personal data?
  • Which one is the better remedy penal or civil?

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