Controlling the uncontrollable?

Apr 27 2015


The writer is a lawyer.
The writer is a lawyer.

THE PML-N’s response to criticism against the Prevention of Electronic Crimes Bill, 2015 (PECB), in a nutshell, is that either vested interest groups with ulterior motives are opposing this perfect legislation or simpletons befooled by them. Back in December 2012 some ‘vested interests’ dismayed by arbitrary blockage of internet content reached out to Ms Anusha Rehman, then an opposition MP. Generous with her time and concerned about internet censorship, she received the group at the Parliamentary Lodges.

Ms Rehman empathised with the need to uphold valuable citizen rights to free speech and information within cyberspace, invited progressive fellow parliamentarians on the IT committee to partake in the discussion and promised to raise the issue in parliament. That was then. Now she is the minister for IT. And she is championing a bill that seeks unfettered powers to censor and control the internet and put in place a coercive mechanism to undertake the moral policing of cyberspace.

Let us assume for a minute that Ms Rehman is right, there is nothing wrong with the bill and those criticising it are driven by malice or ignorance. So if the PPP, PTI, MQM, ANP, the IT industry and civil society have all been hoodwinked into badmouthing a progressive law, what does that say about Ms Rehman’s performance as a minister and MP responsible for aggregating interests, addressing misconceived fears and forging a consensus amongst all stakeholders vital to the growth of our IT sector?

Is democracy preferable to autocracy if laws affecting the rights of the people in both are dictated behind closed doors? Isn’t PECB a treasury-sponsored bill? Did the ministry publish the present draft for public comment? Did the PML-N-led committee on IT hold public hearings before approving and sending it to the National Assembly? Can’t the bill be sent back to the committee and debated threadbare if misgivings about it are rampant? Must there always be public agitation before the PML-N decides to do the right thing?

Cybercrimes logically include two categories of offences: those that occur within the cyber world; and those that occur within the real world, but through use of the cyber world. PECB is more ambitious: it seeks to criminalise some real world actions but only if information about them is disseminated electronically.

The cybercrime bill seeks to control information and ideas under the garb of Article 19.

So glorification of an accused is an offence under Section 9 of PECB. Imran Khan and Tahirul Qadri are both accused under the Anti-Terrorism Act. Any supporter glorifying them electronically could thus render himself liable under Section 9. Meanwhile, hundreds of people will show up outside the Supreme Court when the appeal of Mumtaz Qadri will be heard and will chant slogans in his favour. But that will be no offence (unless someone tweets about it).

The larger problem that bedevils PECB emanates from lack of appreciation that many of our fundamental rights, such as the right to dignity and privacy, are competing rights and are to be balanced against other fundamental rights, such as right to free speech and information. That critical balance between individual and collective rights has been skewed by PECB. Section 18 criminalises speech that “is likely to harm or intimidate the reputation or privacy of a natural person” and will chill free speech on social media.

Why create a new offence against reputational harm under PECB? Even if the medium of publication is electronic, let anyone whose reputation has been harmed sue the offender under the Defamation Act. Section 19 (offences against modesty of a natural person and minor) is likewise overbroad. Why should “distorting the face of a natural person” be a criminal act attracting a seven-year jail term. Public figures are routinely caricatured. Why should electronic transmission of such image be an offence?

Another major problem with PECB springs from the misconception that technology can be fought and the internet controlled. Whether it is Section 21 (cyber-stalking) or the infamous Section 34 (assuming uncontrolled power to censor and shut off the internet), PECB seeks to control information and ideas under the garb of Article 19 of the Constitution, which is neither possible nor desirable.

The problem with Section 34 is twofold. One, the Constitution delegates to parliament the power to consider and impose, in its wisdom, any restrictions on free speech that it deems reasonable for specified purposes eg glory of Islam, state security etc. What the Constitution doesn’t envisage is reproduction of Article 19 within a statute and delegation to the executive the unguided discretion to determine what categories of speech ought to be restricted and what least restrictive means employed to make such restrictions reasonable.

And two, the nature of the internet is such that it is not possible to control it. Who would support the use of social media to disseminate propaganda videos or messages by the TTP or other terror organisations? But how will Section 34 powers be used to block such videos uploaded from third countries or circulated through anonymous accounts on Facebook or Twitter, short of blocking the entire platforms as we have done in case of YouTube (with access to the offensive video still available)?

The internet is truly a marketplace of ideas, which hosts great ideas as well as violent and filthy ones. PECB’s approach of transforming PTA into an internet policeman determining what content is safe and permissible for access by all Pakistanis won’t work. The better approach is to provide for self-regulation: requiring service providers to afford parental controls within internet households for the protection of minors, while not worrying about adult access to mischievous ideas.

In its present form PECB will criminalise conduct that shouldn’t be criminalised, equip investigation agencies and PTA with overbroad and unguided powers that will be susceptible to abuse, and chill free speech without any corresponding augmentation of the right to privacy or dignity. Laws are drafted not on the assumption that they will be tools in the hands of angels, but by assuming abuse and guarding against it. So is PECB an unmitigated disaster or a mini-disaster? Let’s just say that it can benefit from a rethink and wider consultation.

The writer is a lawyer.

Twitter: @babar_sattar

Published in Dawn, April 27th, 2015

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