Kishor Shrestha Case: Privacy, Press Freedom and the Limits of Police Power

# Pasang Lhamu

The arrest of Jan Aastha Weekly editor Kishor Shrestha, the searches conducted at his residence and media office, and the seizure of computers and other electronic equipment have triggered a serious legal debate in Nepal over the boundaries between press freedom and the right to privacy. The Kathmandu District Court has permitted police to keep Shrestha in custody for three days for investigation. However, an extension of remand is not a finding of guilt. At this stage, the central question is not whether Shrestha is guilty or innocent, but on what legal basis police are proceeding, whether the alleged conduct satisfies the elements of the offence invoked, and whether the arrest, detention and searches were necessary and proportionate to the investigation.

According to publicly available accounts, the controversy relates to the publication of intimate material involving a sitting lawmaker. A woman linked to the report has alleged that her social media account was hacked, that the material was obtained through that breach, and that its republication violated her privacy. On the other hand, there have also been claims that the material had already appeared publicly on social media. How the material first became public is therefore central to the case.

Section 24 Does Not Open a Public Official’s Entire Private Life

Section 24 of Nepal’s Privacy Act, 2018 has been frequently cited in the current debate. But the provision does not remove the entire private life of a public office-holder from the protection of privacy. The Act provides that certain information relating to a public official is not considered personal information, including the person’s public position, the public body in which they serve, official contact details, name and designation appearing in public documents, the description and nature of their official duties, and conditions of service.

This does not mean that the private relationships, family life, personal communications or sexual life of a lawmaker or other public official automatically become public information. Section 3 of the Act, by contrast, places matters relating to sexuality, sexual relations and other aspects of private life within the sphere of privacy. It restricts disclosure where such publication may affect a person’s private life, cause harm or result in humiliation.

Section 3, however, also contains an important exception. Disclosure may be permissible where the person concerned has consented or has voluntarily made the matter public. This is why the question of whether the social media account was actually hacked, or whether the material was voluntarily posted by the person concerned, could prove decisive. That question should be answered through digital records, login activity and forensic examination, not through public speculation.

Police Must Clarify Which Provision They Have Invoked

This is perhaps the most important procedural question in the case. The Privacy Act defines several forms of conduct as offences, but not all of them are prosecuted by the state.

An act violating Section 3(4), concerning the publication of matters from a person’s private life, may constitute an offence, but it does not automatically fall within the category of state-prosecuted offences. In such cases, the Act provides for the affected person to file a complaint before the district court.

Section 23(1), however, prohibits the collection, storage, analysis, processing or publication of personal information except where authorised by law. Certain violations of Section 23 may be prosecuted by the state. Particular violations relating to photographs under Section 16 may also fall within that category.

But Section 16 does not automatically apply merely because a photograph appeared in a news report. Legal elements such as an intention to damage character or reputation, manipulation of an image, harassment, or a purpose of obtaining improper benefit may also need to be established.

For that reason, it is important for the public to know precisely which sections and subsections were cited in the arrest authorisation, the police application for remand and the court’s order.

If the investigation rests only on an offence that is not state-prosecuted, questions may arise over the legal basis for police arrest and detention. If, however, the investigation involves a state-prosecuted offence and the necessary legal elements are present, the position is different. It is therefore premature both to declare that police had no authority to investigate and to assume that the arrest was automatically lawful simply because a privacy complaint was filed.

Section 34 Is the Principal Protection for Journalism

For journalism, the most important provision in this case may be Section 34.

It allows information, news or photographs obtained in the course of investigative journalism, or for the purpose of protecting public interest and transparency, to be published provided that such publication does not violate the fundamental principles of privacy.

The Act therefore does not prohibit journalism. At the same time, it does not provide unlimited immunity in the name of public interest.

Two questions become particularly important. First, was there a genuine public interest in the material that was published? Second, was it necessary to disclose intimate material or identify the private individual concerned in order to serve that public interest?

If a private matter is directly connected to abuse of public office, misuse of state resources, corruption, improper benefit, political patronage or another matter of public responsibility, the public-interest justification for publication becomes stronger.

But if no meaningful connection with public responsibility can be established and the publication concerns only a private relationship, the privacy argument becomes stronger. Publishing the fact of a story and republishing intimate visual material are not necessarily the same legal act. Proportionality is likely to be tested at precisely this point.

Supreme Court Precedents Point to Both Boundaries

Nepal’s Supreme Court has not adopted a one-sided approach to the relationship between press freedom and privacy.

In Decision No. 10001, the Court held that personal reputation, dignity and privacy must also be protected against harm arising from journalism. In particularly sensitive cases, the Court has emphasised that media organisations have a responsibility to assess the potential impact of publishing a person’s name, identity or photograph. The principle is clear: even where a story concerns a matter of public interest, the dignity and privacy of the person involved do not disappear.

On the other hand, in a habeas corpus case involving Ujyaalo Network, the Supreme Court held that the criminal prosecution, arrest and detention of journalists merely because a news report was not entirely accurate could cause an unjustified injury to press freedom. The Court found that where journalists had relied on information received from a source, that fact alone should not automatically justify treating the publication as a criminal offence and detaining them.

Read together, the two precedents send a balanced message. Journalism is not above privacy and human dignity. But factual or editorial disputes should not be casually criminalised in a manner that results in the detention of journalists.

That balance is likely to be equally important in the Kishor Shrestha case.

The Legal Limits of Searching a Residence

The search of Shrestha’s residence raises another serious question. Section 7 of the Privacy Act protects the privacy of a person’s home. Entry or search is not permitted except by an officer authorised by law or pursuant to a lawful order. Importantly, the mere fact that a person has been arrested outside the home does not itself authorise a search of the residence. If a residential search is considered necessary, a separate legal basis or order is required.

Section 8 further provides that, during a criminal investigation, written information stating the purpose of the search should generally be provided before entering a residence. An exception may apply where immediate entry is necessary to prevent an accused person from escaping or evidence from being destroyed, but the reasons must be properly recorded.

It is therefore important to establish whether there was a separate order authorising the search of Shrestha’s residence, what exactly that order permitted police to search for, and whether the actual search remained within that scope.

The seizure of computers from a media organisation is even more sensitive. A journalist’s computer may contain far more than material related to a single disputed story. It can include confidential sources, unpublished reporting, other investigations and sensitive records involving third parties.

There is a fundamental difference between securing specific digital evidence necessary for an investigation and obtaining unrestricted access to an entire newsroom’s editorial material.

From the perspective of press freedom, it therefore matters which devices were taken, why they were taken, what limits have been placed on forensic examination, and how unrelated journalistic sources and materials will be protected.

The Questions That Will Decide the Case

The future direction of the Kishor Shrestha case is likely to depend on several fundamental questions. Which sections and subsections are police actually investigating? Was the disputed material voluntarily made public by the person concerned, or was it obtained through unauthorised access? What genuine public interest did the report serve? Was republication of the intimate material necessary and proportionate to that public interest? And were the searches of the residence and media office, as well as the seizure of electronic equipment, conducted within the limits of a clear legal order?

Until these questions are answered on the basis of evidence, it would be premature to characterise the case simply as either an “attack on press freedom” or a “clear criminal violation of privacy.”

The case has now become larger than a dispute involving one journalist or one news report.

It is testing how far public-interest journalism may intrude into private life. At the same time, it is testing how far the state may use its criminal-law powers against journalists and media organisations in the name of protecting citizens’ privacy.

Press freedom is not absolute. Nor can privacy become an absolute barrier to legitimate public-interest journalism.

The boundary between the two must be determined by evidence, law, necessity and proportionality.

In the Kishor Shrestha case, that will be the real test of the justice process.