Complaint Over News: Police or Press Council?

Prem Sagar Poudel

On the same day that the Supreme Court ordered senior journalist Kishor Shrestha to be investigated without continued detention in a case involving alleged violation of personal privacy, Deputy Speaker of the House of Representatives Ruby Kumari Thakur filed another complaint against him. Thakur alleged that material published by Jana Aastha had harmed her character, reputation and social standing, and sought an investigation under the Electronic Transactions Act at the Lalitpur District Police Range.

The fact that the Supreme Court found continued detention unnecessary in one dispute arising from published material, while another complaint over a separate publication was filed with police almost immediately afterward, has once again exposed a long-standing problem in Nepal’s media law.

When someone claims that a news report, photograph, commentary or analysis published by a legally registered media outlet has damaged their reputation or privacy, which institution should be the first point of recourse: the Press Council, police, a civil court or the criminal justice system?

It would be wrong to argue that every media-related dispute must go exclusively to the Press Council. Genuine criminal conduct cannot be shielded from police investigation simply by invoking journalism. But it is equally dangerous for a democracy with a free press if disagreement with published material routinely leads to arrest, detention, searches of homes and newsrooms, and seizure of digital devices.

The problem is not the individual, but the legal entry point

Nepal’s Constitution protects both press freedom and privacy as fundamental rights. Article 19 guarantees the right to communication, while Article 28 protects privacy relating to a person’s body, residence, property, documents, data, correspondence and character.

The Constitution therefore gives neither the press unlimited freedom nor the state unlimited power of intervention.

The difficulty is that a single piece of published material can enter several legal frameworks. Issues involving journalistic ethics, factual accuracy, balance, the right of reply, headlines, corrections and rebuttals fall within the domain of the Press Council. The Privacy Act protects private life and personal information, while also leaving room for evidence-based commentary on the public conduct of public officials and for publication justified by public interest.

Section 47 of the Electronic Transactions Act, meanwhile, has long been used in complaints involving online expression and digital news content.

The core problem is that Nepal still lacks a clear legal system for determining which door should be opened first in which type of dispute.

What did the Supreme Court actually say?

The Kishor Shrestha case should not be interpreted as establishing that journalists can never be arrested.

A joint bench of Justices Dr Nahakul Subedi and Balkrishna Dhakal did not declare Shrestha’s initial arrest unlawful. It did not stop the investigation, nor did it issue a final ruling on whether privacy had been violated.

But the Court made an important distinction: the fact that an investigation is legally permissible does not automatically mean detention is necessary.

The Court took into account that the disputed photograph appeared to have been made public on Facebook by the complainant herself and that Shrestha did not appear to have a direct editorial role in the online publication at the centre of the dispute. On that basis, it found no sufficient reason to keep him in custody and ordered that the investigation continue with him released on appearance guarantee or regular reporting terms.

That reasoning should not be overstated in the opposite direction either. The fact that a person once posted a photograph on social media does not automatically grant unlimited permission for that image to be republished forever, in every context and for every purpose. Public interest, context of use, impact on privacy and editorial responsibility may still require judicial examination in the substantive case.

On the same day, the Kathmandu District Court had authorised four additional days of detention for investigation. The Supreme Court later examined the necessity of continued detention separately under its constitutional jurisdiction.

This raises a broader question about remand practice. Is it enough for investigators merely to say that “investigation is ongoing,” or should they be required to demonstrate a concrete risk that the suspect may abscond, destroy evidence, influence witnesses or seriously obstruct the investigation?

Detention is not punishment. It is a temporary investigative measure.

In disputes involving already published material, much of the evidence is usually public and preserved. That makes the necessity of arrest and continued detention deserving of particularly strict scrutiny.

The constitutional question of digital seizures

Another important aspect of the Supreme Court order was its direction to return computers, mobile phones, laptops, iPads and other devices seized from Shrestha’s home and office.

A journalist’s digital device contains far more than published material. It may hold unpublished investigations, confidential source identities, private communications, interviews, photographs, editorial plans and sensitive information belonging to third parties who have nothing to do with the case under investigation.

Allowing the state access to an entire digital archive in the name of investigating one publication is therefore far more intrusive than an ordinary seizure of physical evidence.

This does not mean that journalists’ devices can never lawfully be searched. If there is sufficient basis to believe that evidence of a serious crime unrelated to legitimate journalistic activity is stored on a device, a narrowly tailored search may be justified through proper legal procedure.

But the scope, necessity and proportionality of the search must be clear. Investigators should identify the offence, the type of material sought and the relevant time period. Wherever possible, they should extract verified copies of relevant material rather than retain entire devices, while protecting confidential sources and unrelated editorial content.

Source protection is not merely a professional privilege for journalists. Investigative journalism itself is weakened if potential informants believe the state can easily examine a journalist’s entire digital record.

Ruby Thakur’s complaint is another test

Deputy Speaker Ruby Kumari Thakur is a public official, but public office does not strip a person of the right to dignity, reputation or privacy.

If a publication is false, malicious or intrudes unjustifiably into private life unrelated to public responsibilities, she has every right to seek legal remedy.

But when material concerns a public official, the test of public interest becomes equally important.

Police should therefore examine not only the existence of a complaint but whether the legal elements of a criminal offence are actually present. Was the material related to public duties or purely private life? What was the factual basis? What was the source of the information or photograph? Who held actual editorial responsibility? Was there a sufficient public-interest justification?

A person’s sincere belief that their reputation has been harmed may be serious, but it does not automatically transform a news report into a criminal offence.

Likewise, the assertion that “this is journalism” does not place every publication above the law.

How far should the Press Council go?

The Press Council can serve as the primary forum for disputes involving journalistic ethics, factual errors, balance, right of reply, corrections, rebuttals and editorial standards.

But the Council is not a criminal court, nor is it currently a mandatory gatekeeper whose prior approval police must obtain before investigating a possible offence.

The better approach is to classify disputes according to their nature.

Matters limited to journalistic ethics should generally be handled through the Press Council or a credible self-regulatory mechanism. Genuine harm to reputation or privacy should have effective civil remedies. Where there is a preliminary basis for separate criminal conduct, such as extortion, threats, theft, unlawful computer access, illegal surveillance or another offence distinct from journalism, police should be able to investigate under ordinary law.

The principle should be simple: publication of news alone should not automatically trigger criminal investigation, but the label of journalism should not become a shield for genuine crime.

Public interest is not the same as public curiosity

Nepal’s media practice also needs a clearer understanding of public interest.

What the public is curious about is not necessarily what the public needs to know.

A public official’s private conduct may legitimately become a matter of public interest if it relates to the use of public office, public funds, conflict of interest, abuse of authority, public safety or legal accountability.

But exposing private life merely for sensation or curiosity is not automatically journalism in the public interest.

International practice offers no single universal model. In India, the Press Council’s jurisdiction is largely limited to print media. In England and Wales, reputation-related disputes are primarily handled through civil defamation law. International human rights standards generally require restrictions on expression to be lawful, necessary and proportionate.

Nepal need not copy any foreign model, but these examples demonstrate one important point: every media dispute does not have to begin with arrest.

Nepal now needs four clear legal pathways

Nepal needs four distinct but interconnected routes for complaints arising from media content.

First, journalistic ethics and immediate corrective remedies should go to the Press Council or a credible self-regulatory mechanism.

Second, genuine damage to reputation or privacy should have an effective civil remedy.

Third, clearly separate criminal conduct should remain subject to police investigation.

Fourth, where arrest, detention, searches or other state action disproportionately interfere with fundamental rights, constitutional judicial protection must remain available.

In addition, criminal complaints involving media content should require a written necessity test before arrest. Unless there is a concrete risk of absconding, destruction of evidence, witness interference or serious obstruction of investigation, less intrusive measures such as summons, appearance guarantees or regular reporting should be preferred.

Digital searches also require a special procedure. The subject, time period and scope of a search should be precisely defined. Journalistic sources should receive protection, and state access to unrelated editorial material should be restricted.

Police need legal clarity as much as journalists do. Vague laws place investigators in a difficult position: failure to investigate can lead to accusations of protecting influential media, while investigation can trigger allegations of suppressing press freedom.

Police should not become the final arbiters of journalistic ethics, and the Press Council should not be turned into a criminal investigation agency.

Media organisations, for their part, must also strengthen internal responsibility. Fact-checking, source verification, privacy assessment, public-interest review, right of reply and correction procedures are essential. If the press does not maintain credible self-regulation, it is natural for citizens to turn increasingly to police and courts.

The central lesson of the Kishor Shrestha case is not simply that a journalist was released from detention.

It is that Nepal must decide how to protect citizens’ privacy while preserving press freedom in the digital age, and how to ensure that the state’s legitimate power to investigate crime remains necessary, proportionate and subject to judicial control.

The process should not change according to the identity of the journalist or the power of the complainant. The nature of the alleged harm should be identified first, the proper legal forum selected next, and arrest or sweeping digital searches used only as a last resort.

The rule of law does not mean placing journalists above the law. It also means ensuring that the state does not go beyond the limits the law itself imposes.

About the Author: Prem Sagar Poudel is a senior journalist and international relations analyst from Nepal. He has conducted in-depth studies on Nepal-China relations, the geopolitics of the Himalayan region, and Asian security issues.