[Chapter-delegates] Big Victory for Digital Defender in Nepal

[Babu Ram Aryal]

Dear Friends
[Apology for cross posting]

This is my pleasure to share a major victory for the digital rights
defenders in Nepal as Supreme Court of Nepal declares any collection of
Call Details Report [CDR] and SMS without a competent court order is
illegal and criminal act on its own. As so far ther eis no legal provison
to deal this issue, the apex court has also issued a Directive Order to
pass a law on this. It is also directed by the court that law enforcement
agency should take District Court Order before collecting any such
information even it is required for the purpose of any crime investigation.

XXX
KATHMANDU, Feb 8: The Supreme Court has ordered the government to
compulsorily seek permission from the district court if the police or other
authorities concerned need to access telephone call records and SMS details
for the purpose of criminal investigations.

A full text of the verdict passed by a joint bench of the then Chief
Justice Kalyan Shrestha and Justice Devendra Gopal Shrestha on February 4,
2016 has instructed the government to make necessary arrangements to seek
permission from the district court concerned if they want to access phone
call and SMS records in the course of any criminal investigation until
separate legislations are formulated to this effect.

A full text of the verdict that was recently made public by the apex court
stated that since the right to privacy of all the individuals is guaranteed
by the constitution itself, the government bodies must seek permission from
the district court if they deem it necessary to access phone calls records
and message details of any individuals.

The verdict has categorically stated that it is illegal to seek call
details and messages of any individual without the permission from the
district court concerned.  The apex court has also directed the government
to take necessary legal action against officials providing or seeking
illegal access to individuals' call details and other personal details even
if it is for the purpose of investigation.

In the course of the investigation into the murder of SC Justice Rana
Bahadur Bam some five years ago, police had reportedly traced around
500,000 telephone calls and obtained details of about 30,000 SMSs.

A writ petition was jointly filed at the SC by advocates Baburam Aryal,
Tanka Raj Aryal, Santosh Babu Sigdel and journalist Taranath Dahal after
the modus operandi of the police investigation became public. The
petitioners had made the Office of Prime Minister and Council of Ministers,
Ministry of Home Affairs, Ministry of Information and Communications, Nepal
Police, Nepal Telecommunications Authority, Nepal Telecom, Ncell and United
Telecom Limited as defendants.
The petitioners had argued that the right to privacy is one of the
fundamental rights of an individual enshrined in the constitution, and the
government or any third party should not use or make public the personal
details of any individual without his or her consent. The verdict has
stated that a clear law should be formulated to access private information
of individuals for criminal investigation.

[http://www.myrepublica.com/news/14518]

Thank you.

Advocate Babu Ram Aryal
Expert Member
National ICT Council, Nepal
------------------------------------
Cyber Crime | Cyber Law | Cybersecurity
E-Commerce | Internet Governance | Digital Rights
Internet Freedom | Intellectual Property

Twitter: @merobabu | Skype: baburam.aryal
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