Provisions on Offences relating to Privacy in the Draft Penal Code, 2071
The emergence of provisions relating to Privacy in the Draft Penal Code, 2067 in sections 291 to 302 is a welcome initiation, especially in light of the lack of any specific laws governing Personal Privacy thus far.
In the absence of express statutory provisions governing Personal Privacy, relative legislations have been seen to be filling a lacuna in the law. In light of the changing circumstances and the rise of global information technology, the need for Privacy laws have been made apparent and as such Nepal has taken formal steps to codify regulations pertaining to Personal Privacy laws. Albeit a general law, Personal Privacy provisions does initiate the process of recognition of legal right to informational privacy entailing the protection of personal and private information from misuse.
In Nepal, Right to Privacy is a fundamental right enshrined in Article 28 of the Interim Constitution of Nepal. This can be contrasted to, for example, the American Constitution where Right to Privacy is not expressly stated in the Constitution or the English Constitution where Right to Privacy is not a freestanding right under common law. This is not to say that the American or English jurisdictions do not recognize Right to Privacy. It is just that, they have developed measures to get around the lacuna in law.
In America's case, 14th Amendment and landmark Supreme Court judgments have played a big role in establishing protection of Personal Privacy. In England, equitable doctrine such a breach of confidence, torts linked to infliction of harm to the person and public torts pertaining to police powers have largely been used to govern the concept of protection of Privacy rights. In light of this, Nepali constitutional mandate to enshrine Privacy rights as a fundamental right shows a stern recognition of the importance of personal informational rights and the commitment to protect such rights.
As per Alan Westin, Right to Privacy entails, "The claim of individuals, groups or institutions to determine for themselves when how and to what extent information about them is communicated to others." From this definition it is clear that the Right to Privacy is not limited just to the individual but can also extend to groups or institutions.
The current system provides penal retrieve for victims of privacy infringement. In addition, the provisions in the code, under section 301, provide measures for compensation. However, a civil action for privacy infringements should be made available. This has a lot of inherent benefits:
1.) In a civil action, the claimant themselves will bring the case increasing the likelihood for claims against privacy infringement.
2.) In a civil action, as opposed to criminal, the burden of proof (balance of probabilities) is less stringent allowing greater leeway in favour of the claimant. In a criminal action the "beyond any reasonable doubt" burden of proof is highly stringent and could provide more difficulties for victims seeking reparations.
3.) Civil action in general is more concerned with compensating the claimant and basing liabilities whereas criminal action is more concerned with punishing the perpetrator. In this regard, civil action is more victim-friendly and will provide un-liquidated damages to the claimant as per the facts of the case.
4.) In most other jurisdictions, privacy laws are governed by both criminal and civil procedural law. In Nepal, measures need to be taken to enable the victims to initiate either a civil or a criminal claim against the defendant.