When faced with the matter of digital rights in Pakistan, various issues come to light, including, but not limited to, lack of freedom of speech, draconian internet laws and unjustified content regulation.
With an unprecedented rise in the role of media in our lives, it is valid to assume that the media’s purpose is to provide a platform through which citizens of a nation can carry out their fundamental right to freedom of expression and access to information. In 2011, the United Nations Human Rights Committee stated that: “Internet and mobile based electronic information dissemination systems, have substantially changed communication practices around the world. There is now a global network for exchanging ideas and opinions that does not necessarily rely on the traditional mass media intermediaries.” It is all the more relevant for the authorities to regulate the internet in a transparent manner so as to encourage the exchange of ideas and for Pakistan to be an active member of the global village.
Before we navigate through Pakistan’s digital laws, it is imperative to turn towards international legal documents in order to determine the extent to which Pakistan’s internet laws meet standards set by international law. Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and Article 19 of the Universal Declaration of Human Rights reinforce the right to freedom of expression “through any media and regardless of frontiers”
However, the UNHRC also acknowledges that certain restrictions are necessary, hence it has set guidelines on imposing restrictions by stating that any restrictions that are imposed on internet based communication platforms must fall within the parameters of Article 19 of the ICCPR which provides: ‘(a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order or of public health or morals.’
Similarly, under Pakistan’s Constitution, Articles 19 and 19A guarantee that every citizen shall have the right to freedom of speech, freedom of expression and freedom of information respectively, subject to any ‘reasonable restriction.’ However, in the context of digital rights it is questionable whether these freedoms are merely just empty words on paper, given the draconian laws on the subject and the strict action taken against online content.
When assessing this question, we will be focusing on Pakistan’s Prevention of Electronic Crimes Act (PECA), 2016 and the rules enacted thereunder. Section 37 (1) grants the Pakistan Telecommunication Authority (PTA) authority to regulate online content, including removing and blocking online content if it considers it necessary “in the interest of the glory of Islam…. public order, decency or morality”. Section 37 (2) requires the PTA to enact rules to exercise powers granted under sub-section 1. While PECA was enacted in 2016, it was not until November 2020 that PTA officially enacted the Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards), Rules 2020 under section 37 (2) of PECA. The Rules are cause for concern for a number of reasons. Specifically, they allow PTA to unilaterally block online content without notice or affording an opportunity of hearing to the aggrieved party, contrary to the right to due process guaranteed by Article 10A of the Constitution. They also place obligations upon internet service providers and social media companies to directly regulate content uploaded on to their respective platforms, and also to provide any information required by the FIA, including subscriber information, and to track and minor user data, a contravention of the right to dignity and privacy protected by Article 14 of the Constitution. This is in contrast to the parent legislation, PECA, which asserts that a warrant is necessary in order to gain access to consumers’ data, clearly demonstrating a breach of one’s right to personal privacy.
Further cause for concern is Rule 4 of the Rules. It compromises the principles of democracy by allowing blanket censorship if online content “intimidates or harms the reputation of Federal or Provincial Government or any person holding public office… or attempts to bring into hatred or contempt… towards the Federal Government or Provincial Government.” In order for a nation to truly be democratic, freedom of speech is a fundamental principle. Citizens must be able to voice out their concerns and freely criticize and question their elected officials with the intention of holding them accountable. Considering that the concept of democracy is in line with the principle of government, “of the people, by the people, for the people”, there can be no limitations or constraints upon spreading information, ideas and justified criticism within the bounds of law.
The lack of transparency in regards to the passage of PECA is another issue plaguing Pakistan’s digital laws. Under Section 29 of PECA, the Federal Investigation Agency (FIA) was required to submit half yearly reports to both houses of parliament, however there has repeatedly been a delay in this. While the first report was due in February 2017, the FIA submitted the report after a one-year delay, which was then tabled as it was declared inefficient. Additionally, no stakeholders were consulted in drafting the 2020 Rules.
It is unfortunate that PECA and Rules enacted thereunder are often used as oppressive tools to silence bloggers, journalists and other concerned citizens. This has resulted in the loss of their creditability in terms of responding to genuine instances of propagation of hate and harassment.
Female journalists in particular, are subject to harassment and abuse online, with a new study by Media Matters for Democracy shedding light upon the impact of online harassment on women journalists. The results from this study, titled “Women Journalists and the Double Bind: The Self-Censorship Effect of Online Harassment in Pakistan,” were quite concerning as around 70 percent of the respondents reported facing some form of threats, attacks or harassment for their journalism or personal expression with nearly 80 percent respondents stating that it is not possible to practice journalism in Pakistan without self-censorship.
PILAP has submitted two Right To Information (RTI) applications to the Ministry of Information and Technology, and one to the PTA pointing out several flaws in these digital laws while questioning these bodies.
PILAP questions how the Rules intend to preserve freedom of speech and expression in light of such rigid rules which, unlike PECA, no longer include a requirement to issue a warrant before removing online content. Issues such as the absence of due process rights and the right to privacy considering Rule 9 are further topics PILAP has addressed in its RTIs.
Furthermore, PILAP has questioned the measures taken in ensuring that the enactment of PECA is effective in protecting the rights of women, specifically, online journalists and those who have been victims of online harassment and abuse.
Digital Rights in Pakistan continues to be a relatively new matter, which may go unnoticed with little emphasis being placed on it. However, with the pace at which the importance of media is increasing, it is apparent that advocating for more fair and uniform legislation in regards to one’s rights on digital platforms must be made a priority.