Question: A website collects various private information like name, educational experience, professional background, contact informations etc. of various professionals e.g. doctors, lawyers etc. from their personal sites or their professional bodies (publicly displayed information in other forums) and displays those information in the website and also allows the professionals concerned to claim such profile. Is such collection and display of private/personal information illegal? What are possible legal implications?
The Constitution of Nepal has secured the right to privacy of citizens as one of their fundamental rights. The privacy of a person in regard to their residence, property, document, data, correspondence and matters relating to their character are inviolable, except in accordance with the law. In this regard, Privacy Act, 2018 (“Privacy Act”) has been enacted to secure this right of privacy of an individual, to prevent the encroachment of privacy of every person, and to safeguard the personal information of people remaining in any public body or institution. Therefore, it requires consent of such persons before collecting or publishing any of their related information or data.
However, this rule does not apply for the information that is already available on public domain. Privacy Act through its Section 34 provides an exception to the privacy right of a person who is a public figure, known publicly or who may be of public interest or concern. Publishing or transmitting their opinions or thoughts that they had publicly expressed earlier, or their audio-visuals and pictures captured in a publicly organized program, or that are available in public domain, shall not be construed to infringe their privacy right. Privacy Act shall not identify publication of the details disclosing identity including the educational certificate of such person that are in public domain or public knowledge as an offence. Therefore, one can make fair comments along with reason and evidence about the details related to property and details disclosing identity, and also the views expressed publicly by such public figures, or the details related to their public function.
Whatsoever, publication and use of publicly available information and data of a person may at times cause severe personal and economic losses to that person. However, there are no specific rules and laws that prohibit such random and haphazard use of publicly available information. Nepal seriously needs to introduce proper guidelines for such publication and use of publicly available information as to when, how and for what purposes such private information available in public domain could be used for and what implications would follow the use of such information and data.
Therefore, if a website collects various private information from the personal sites or their professional bodies (which were kept there for information purpose and is available to public) then the website will be protected under the umbrella of exception to the privacy right as provided by the Privacy Act as the owner of private information from the personal sites or their professional bodies (which were kept there for information purpose and is available to public) already lost the privacy right when they were published in public domain. The protection to privacy is further derogated by the lack of further guidelines. Impersonation would still be criminalised if pursued with publicly available information. However, since the website collects the information for public use and the proprietor could still claim such a profile, it shall not be held as an offence. And for the lack of further guidelines, the proprietor may also be deprived of any economic benefits such republication might generate, unless such information or data are already protected under some other laws such as the intellectual property as such.
However, if the information published is specifically related to work of a person, then Copyright Act, 2002, prohibits publication of such works without authorization of the author, unless it is for the purpose of informing the general public. This shall not be done without giving credit to the source or the author, and without being prejudicial to the economic right of the copyright owner. In any case, publication should be totally refrained from if the author has clearly prohibited it. (Work in this case refers to any works presented originally and intellectually in the field of literature, art, science and in any other field.)
Conclusion: Collecting and publishing information already available in the public domain by a website may elude the scope of Privacy Act overall as it may be referred to as a reassortment of the public information, and not a collection of private information in itself. Or, it may still enjoy the exception to privacy right as provided by the Privacy Act. Such publication may still benefit from lack of proper guidelines that shall determine proper use of publicly available private information.
