Right to privacy is absolute. However,
state must protect right to privacy of a person and his family's right to
privacy. Free speech is a fundamental tool and teeth of any democracy and
Bhutanese democracy is no exception. On the other hand, every person should
have right to be secure in their private lives, their documents, their homes
and family. It is even more important for a small nation like ours, where
everyone knows everyone.
Both free speech and right to be let alone contribute to attainment of happiness, the ultimate goal of Gross National Happiness.
Both free speech and right to be let alone contribute to attainment of happiness, the ultimate goal of Gross National Happiness.
The age of information explosion and
bombardment
In this age of technology and world of
corporate, data has enormous importance for both the government agencies and
non-government entities including many private organizations. The government
agencies such a Department of Census and Registration under Ministry of Home
and Cultural Affairs, Road Safety and Transport Authority under Ministry of
Information and Communications, Department of Trade under Ministry of Economic
Affairs, Department of Revenue and Customs under Ministry of Finance, Ministry
of Education, Ministry of Health, Royal University of Bhutan and Royal Civil
Service Commission, Anti-corruption Commission, Election Commission of Bhutan
and many other numerous government agencies store a huge amount of data
containing every detail of person in the country including their finger prints,
photos, bank account numbers, driving license numbers, family tree, entire life history in many
cases. Similarly, most corporations such as Insurance Companies, Banks,
Telecommunications, employers also possess huge personal data of us. With so
much emphasis on information technology as means of storing and processing our
data to improve service and efficiency of the service providers. However, no
technology is perfect and therefore, our entire data is vulnerable and risks of
landing in wrong hands either unintended or intended. What do we do? How do we do to prevent such
leaks?
And over half the population of on
internet and it is only increasing and we continue to provide our personal
details, share some of our most intimate moments in life whether photos, videos
or stories of us on social media without a second thought. What happens to
those data that we constantly feed there? Are they private as we think? Who
uses those data? Is Facecbook, Instagram, Snapchat, Wechat, Watsapp, Twitter
that we Bhutanese are so fond and spend hours on it are safe enough to protect
our data? Do we ever realize that the moment we post any information on these
platforms, it is never going to be deleted, rather would remain forever in the
public domain in one form or other. What happens to data on these social media
platforms? Do we realize, for every social media account or shopping website,
we sign up, we consent to provide them with so much of our personal information
including personal mobile numbers which are often sold to third parties. Social
media corporates make billions of dollars every year either by selling our
personal information to third parties or targeting us to click or get attracted
to millions of advertainments feed to our social network based on how we use
internet and how we behave as netizens.
On the other hand, ‘information is a
livelihood of today’s society. Increasingly, our everyday activities involve
the transfer and recording of information. The government collects vast
quantities of personal information records pertaining to an individual’s birth,
marriage, divorce, property, court proceedings, motor vehicles[1]” etc. And “these new
technologies coupled with the increasing use of personal information by
business and government, pose new challenges to privacy[2] of a person. The only possible
answer to these challenges may be the, enactment of privacy law in the country to
minimize the risks and compensate those who may be affected as result of breach
of data. Therefore, it may be the right time to enact a standalone law that governs
the right to privacy.
What is right to privacy
The right to information is a complex
subject and there is no universal definition. The Constitution protects a
person from "arbitrary or unlawful interference with his or her privacy,
family, home or correspondence[3]“. However, what
constitutes arbitrary or unlawful interference with his or her privacy, family,
home or correspondence remains to be defined. Further, in Bhutan, privacy is
defined as eavesdropping by way of “unlawfully engages in wire tapping,
mechanical overhearing of conversation or intercepting or accessing of an
electronic communication”[4] or” unauthorized opening
of mail or parcel[5]”.
This definition built on basis of violation of right to privacy as criminal
offence.
In another definition, privacy is defined
as law containing “four kinds of distinct invasions of four different
interests”[6] of the person. These are
1.
Intrusion upon the plaintiff’s seclusion
or solitude, or into his private affairs;
2.
Public disclosure of embarrassing private
facts about the plaintiff;
3.
Publicity which places the plaintiff in a
false light in the public eye,
4.
Appropriation for the defendant’s
advantage, of the plaintiff’s name or likeness
However, as one can find from above, this
definition was generally applied only through law of torts and not otherwise.
Therefore, this definition far from suiting Bhutan’s context as it is more on
law of tort. Bhutanese legal system is yet to recognize the law of tort. Privacy may also be termed as “the right of
privacy, as an independent and distinctive legal concept[7]” where “the general law of privacy, which
affords a tort action for damages resulting from an unlawful invasion of
privacy, and the constitutional right of privacy which protects personal
privacy against unlawful governmental invasion[8]”. Going by this definition,
the constitutional right to privacy protects only against the government
invasion and not other corporates or non-governmental agencies or other persons.
However, there are many other entities
that holds huge personal information. Therefore, more acceptable definition of
privacy in Bhutanese context could be the "right to self-determination,
right to the sole control of one's person and to determine what shall be done
with one's own body, as well as the right to determine for themselves when,
how, and to what extent information about them is communicated to others[9]". It is therefore,
important that, an individual has right what to disclose about himself and what
not to disclose about himself or his family to others. Even this concept is too
liberal and give unreasonable protection to the individual. It is because, the no
right is absolute[10] and the state has can
impose reasonable restrictions for the public good and security and sovereignty
of the country. Example, Anti-corruption should have right to compel the public
servants to declare their assets, Department of Revenue and Customs must have
the authority to compel the citizens to pay taxes and provided their tax
information and similar with other agencies for various purposes including
country’s security and sovereignty.
The
Black’s law defines right to privacy as “the right that determines the
nonintervention of secret surveillance and the protection of an individual's information[11]”. This is separated into
four categories. First is “physical” where a person is protected others from
knowing about that individual[12]. Second, “decisional” a
person has the absolute authority to make the decision whether divulge
information about himself or not. Third “informational” where others are prevented
from “searching for unknown information[13]” and finally, “dispositional”
where others are prevented from making attempts to “know the state of mind of
an individual[14]”.
But this definition seems to be too abstract in some sense while it also makes
a good sense in terms of defining right to privacy in more general way.
Therefore, in nut shell, right to privacy may
be understood in Bhutanese context as right to protect his or his family’s private
information on private matters including his family from any unlawful intrusion
or other means without his consent but may be permitted to collect his or her
information and use within the legal and policy frameworks of the country for
the good of the country.
How is right to privacy is recognized and
protected in Bhutan?
In Bhutan, right to privacy is recognized explicitly
through the Constitution as one of the fundamental rights as well as legal
rights under various laws.
Privacy as Fundamental Right
The constitution recognized the right to
privacy as one of the fundamental rights[15]. The Constitution does
not specify in what manner or what constitutes right to privacy against “arbitrary
or unlawful interference with his or her privacy, family, home or correspondence[16]”. As a fundamental right,
a person’s privacy is protected from state actions in any form including laws
that contravene this article.
As a result, state cannot arrest a person[17] without warrant unless
other permitted by act of parliament under special circumstances[18]. The state is prohibited
from search or entering any premise or conveyance without search warrant[19] except when permitted by law[20]. Further, the Courts are
barred from issuing general search warrant and can issue only for specific
places or premises to prevent abuse of such orders. By this way, the
fundamental right to privacy is well protected in Bhutan.
Right to privacy as legal right
The Penal Code[21] recognized the right to
privacy as criminal offence in case of violation. There are two protections given under this
law. First one is protection from eavesdropping and second from unauthorized
opening of mail or parcel. It amounts to eavesdropping “if the defendant
unlawfully engages in wiretapping, mechanical overhearing of conversation, or
intercepting or accessing of an electronic communication[22] and is punishable with
minimum of one year to maximum of less than three year imprisonment[23] while unauthorized
opening of mail or parcel is considered when “if the defendant without lawful
warrant intercepts and opens any mail or parcel not addressed to the defendant[24]” and graded as offence of
felony of fourth degree[25] which is quite a serious
offence. Felony of Fourth degree can attract mandatory[26] imprisonment of minimum
of 3 years to maximum of less than 5 years.
Another law in Bhutan that explicitly recognizes
the right to privacy in relation to use of Information and Communications and Technology
(ICT) is Bhutan InfoComm and Media (BICAMA) Act 2006. This law gives the
discretionary power to High Court and Supreme Court to restrict court in making
documents available for public if it violates the privacy[27] This law also obligates
that ICT facility providers, ICT service providers and vendors to "l
respect and protect the privacy of personal information they receive from their
users or consumers and to make "
their privacy policy easily accessible from their website[28]" with
the "specific kinds and sources of information being received,
collected and maintained online, how users or consumers may review and, when
necessary, correct or remove such information; and when the website uses
“cookies,” how and why they are used and the consequences, if any, of user’s or
consumer’s refusal to accept a cookie[29].
Further, the law imposes duty to maintain
confidentiality of any information online by the ICT ICT facility providers, ICT service providers
and vendors and ensure adequate security
measures to protect the information of users[30]. This law also mandates
the service providers to take reasonable precautions to the extent possible to
prevent any negative impacts on children or minor online including transactions
or offensive conversations[31].
Analysis of enforcement of law of privacy
in Bhutan
In recent years, with the introduction of
internet and more so with launch of mobile internet facilities in the country,
the right to privacy remained a challenge one because of sheer growth and
accessibility to internet among the Bhutanese people. It has been increasing
even more rapidly where hundreds of thousands of Bhutanese now online mainly
through social media.
B-mobile alone has 477,744 subscribers
across the country[32] which means half of population has access to
mobile service of Bhutan Telecom alone. In recent years, Bhutan had numerous
reports of leaks of private videos being shared on social media, allegations
and personal information on various social media platforms. Royal Bhutan Police
took initiatives to counter these problems and yet the outcomes are very
minimal at best. There are no records[33] of courts where any
decisions are given on the basis of right to privacy.
The BICMA law as discussed above, requires
that websites shall make privacy policies easily accessible but on careful
review of some important websites found that there no privacy policies or
information on privacy on their websites. This include Bhutan InfoComm and
Media Authority[34]
(BICMA), the authority who is the custodian of this very law nor their parent
agency, the Ministry of Information and Communications[35]. Even judiciary of
Bhutan’s website, the fountain of justice does not have any information on
privacy[36]. In recent times, Royal Bhutan Police started
posting any person arrested for suspected involvement in the drug trafficking
even before his or her trial begins. Does it not violate his right to privacy
and innocent until proven guilty by subjecting him or her to public trial
before due process of law? How about his or her family’s right to privacy?
Similarly, all media depicts the names of those persons suspected or alleged to
have committed corruption particularly senior public figures. Does the freedom
of press override the right to privacy? The Constitution guarantees innocent
until proven guilty as fundamental right[37] and their guilt can only
be proven through due process of law. Where is due process of law for these
people? The basic tenet of rule of law
is the due process of law but when media or government agencies depict any
person before trial by naming and shaming in public derails their very right to
privacy and right to presume innocent until proven guilty.
Now, if we look at other countries,
example Supreme Court of United States websites provides a clear policy on
privacy[38]. Similarly website of US
Congress[39],
US Tax Department[40], US Department of
Education[41],
one of the biggest mobile and internet service provider Verizon[42] etc all have the privacy
policy clearly defined and accessible to public. Where in Bhutan even mobile
service providers like Bhutan Telecom has no privacy policies accessible to
public on their websites. In deed the America has neither the constitution nor
by act of congress, there are laws on privacy in United States. It is driven
mainly by judicial decisions that made the privacy law very strong. However, on
the rare and positive side, TashiCell[43] has privacy policy but
not the government or other corporate or offices in Bhutan.
Why should Bhutan need stronger privacy
law?
The brief analysis above indicates, Bhutan
does seem to have number of laws that not only recognizes right to privacy but
also provide obligations and remedies. However, the impact on right to privacy
remains minimal and still faces numerous challenges since the law of privacy
itself is recent and information explosion in Bhutan is very recent. Few
impediments for the effective enforcement of the right to privacy may be
summarized below:
1. Though
right to privacy is enshrined in the Constitution, it is yet to be understood
as fundamental right by the people;
2. The
BICMA Act does not provide any specific remedies for the violation of
obligations
3. Penal
Code of Bhutan provides only punitive remedies which is only deterrence
4. There
is lack of any civil damages which are essential in case of injury caused to
the plaintiff in Bhutan
5. Even
the government agencies in Bhutan including those responsible for enforcement
of these laws seem to lack in implementation of the laws.
Therefore, considering the above summary
of challenges, the right to privacy in Bhutan is still in nascent stage yet the
importance of effective right to privacy in Bhutan cannot be ignored. Bhutan’s policy of e-governance and with
rapid growth of commerce and trade, e-commerce and so much of data collection
by both the government and non-corporate entities, right to protection of
privacy has become paramount importance.
The citizens shall be protected from government's
“uninvited observation of or interference in those areas that fall within ambit
of zone of privacy[44]” or wire tapping or
government surveillance. For example, “GPS monitoring generates a precise,
comprehensive record of a person's public movements that reflects a wealth of
detail about her familial, political, professional, religious, and sexual
associations. And "Privacy is not a discrete commodity, possessed
absolutely or not at all. Those who disclose certain facts to a bank or phone
company for a limited business purpose need not assume that this information
will be released to other persons for other purposes[45]". Similarly,
Ministry of Health collects huge personal information and therefore, medical
records, which may “contain intimate facts of a personal nature, are well
within the ambit of materials entitled to privacy protection[46]”. Private individual
themselves share huge information on social media either knowingly or
unknowingly or even some with mala fide intentions such as adult contents in
the public domain which will remain forever online. Any person aggrieved or fall victim of either
the state or non-state or individual must have the access to adequate
compensation or damages as result of violation of his privacy. The violation of right to privacy is not
merely of that individual person but often affects his entire family and even
community and therefore deserves more attention. The injured party must have
access to some form of compensation rather than merely imposing punitive
sanctions on the defendant. For example, if an intimate private video gets
circulated, then the entire family of that person may be affected and face
social stigma or other forms of mental and physical public harassment in the
society. For this, if the person who shared such video may be sanctioned with
punitive measures but also damages to the injured plaintiff and his family for
the injury caused to after sharing the video.
Way forward
1.
It may more appropriate for institutions
like Bhutan InfoComm and Media Authority (BICMA) to be proactive in the
enforcement of the existing laws
2.
Review the existing law on law of privacy
3.
Explore possibility of inclusion of civil
damages as remedies than mere punitive measures
4.
Government should consider the privacy as
important aspect of all government policies and strategies.
5.
The corporates particularly banks,
insurance and telecommunications service providers must take privacy protection
not only as obedience to law but as corporate social responsibility to ensure
that right to privacy is ensured.
6.
BICMA should take more proactive steps to
carry out adequate measure to carry out more advocacy campaigns particularly
targeting children and minors on vulnerabilities of divulging personal
information on social media, strangers, social network friends.
7.
Law enforcement agencies should continue
to follow the Civil and Criminal Procedure Code while carrying out any law
enforcement functions to prevent and protect right to privacy.
8.
The judiciary as fountain of justice must
consider privacy as an even more important in the world of technology to
protect a person or his family’s right to privacy through strong judicial
decisions.
9.
Other relevant agencies and
non-governmental organizations should also help the country in educating
citizens on importance of right to privacy but at the same time also on
vulnerabilities’ and risks associated with giving personal importance
Conclusion
The citizens will not stop being on social
media or use of any ICT services, instead with only rapidly increase. The
government will not stop collecting information or promotion and strengthening
e-government. The media will not stop publishing information which may violate
the privacy of a person or his family. Therefore,
it may be right time, that we either enact an exclusive privacy law or at least
review the existing legal frameworks in the country and strengthen the
enforcement of right to privacy.
[1]
Daniel, J. Solove & Paul, M. Schwartz, Privacy Law Fundamentals (APP 4th
Ed.2017) pp.1
[2]
Ibid pp.2
[3]
Article 7 Section 19 of the Constitution of Kingdom of Bhutan.
[4]
Section 468 of Penal Code of Bhutan
[5]
Section 470 of Penal Code of Bhutan
[6]
Prosser, Willaims, Privacy, 48 Cal.L.Rev.383 (1960). The author wrote a famous
article, privacy after studying over 300 tort cases decided in 70 years in the
United States.
[7]
Renwick v. News & Observer Pub. Co., 310 N.C. 312, 321, 312 S.E.2d 405, 411
(1984)
[8]
Ibid
[9]
10A Fla. Jur 2d Constitutional Law § 359
[10]
Article 23 Section 7 of the Constitution of Kingdom of Bhutan 2008
[12]
Ibid
[13]
Ibid
[14]
Ibid
[15]
Article 7 Section of the Constitution of Kingdom of Bhutan 2008
[16]
Article 7 Section 9 of the Constitution of Kingdom of Bhutan 2008
[17]
Section 158 of Civil and Criminal Procedure Code
[18]
A person may be arrested without warrant under cognizable offences listed under
Section 165 of Civil and Criminal Procedure
[19]
Section 168 of Civil and Criminal Procedure Code of Bhutan
[20]
Section 176 of Civil and Criminal Procedure Code of Bhutan
[21]
Section 468, 469, 470 & 471 of Penal Code of Bhutan
[22]
Section 468 of Penal Code of Bhutan
[23]
Section 469 of Penal Code of Bhutan
[24]
Section 470 of Penal Code of Bhutan
[25]
Section 471 of Penal Code of Bhutan
[26]
Section 28 of Penal Code of Bhutan
[27]
Section 129 (b) of BICMA Act 2006
[28]
Section 157 (1) & (2) of BICMA Act 2006
[29]
Ibid
[30]
Section 159 of BICMA Act 2006
[31]
Section 160 of BICMA Act 2006
[32]
Accessed on 10 February 2018 at http://www.kuenselonline.com/lunana-to-enjoy-reliable-mobile-services/
[33]
The inaccessibility to court decisions presumes that there are no such
decisions but there may be.
[37]
Article 7 section 16 of the Constitution
[44]
City of N. Miami v. Kurtz, 653 So. 2d 1025 (Fla. 1995)
[45]
United States v. Jones , 565 U.S. 400, 415, 132 S. Ct. 945, 955, 181 L. Ed. 2d
911, 925 (2012)
[46]
Doe v. Delie , 257 F.3d 309, 315 (3d Cir. 2001)
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