ON Jan 12, 2016, Google launched localised versions of YouTube in three countries. Pakistan was one of them. On Jan 18, PTA issued a directive to internet service providers to lift the ban on YouTube. This brought the over three-year ban to an end.
On the subject of localisation, when in 2013 the Lahore High Court inquired whether Google would localise if intermediary liability protection (ILP) was extended to it, in a letter Google stated this in response: “The decision as to whether to offer this service is a business, legal and commercial decision, and takes into consideration, for example, whether there is adequate legal certainty and protections for the provision of such online services in the country.”
The company added: “We have been discussing this in the context of the need for [ILP] for online platforms and a clear notice-and-takedown mechanism in Pakistan to bring these provisions in line with international best practice.”
ILP protects a service provider or intermediary — in this case YouTube — from being held responsible for the acts of users. Contrast the required protections cited in Google’s letter with Pakistan’s current legal/policy environment. The Electronic Transactions Ordinance only provides ILP to ISPs registered locally. Though a section on ILP has been added to the proposed draft of the Prevention of Electronic Crimes Bill (PECB), the bill as a whole creates more uncertainty and places more liability on businesses, service providers and intermediaries.
The internet or foreign intermediaries are not PTA licensees.
Further, it criminalises many forms of speech. There exists no notice-and-takedown mechanism in Pakistan. The whole debate on internet censorship in Pakistan has centred on the arbitrariness and ad hoc manner in which directives are issued and websites shut down by the executive. International best practices require judicial oversight and orders as far as content takedown goes. Section 34 of PECB certainly does not fit the criteria, neither is it in line with international principles. Yet Google localised.
3G/4G services creating a market potential may make business and commercial sense, but localisation against this policy backdrop certainly makes no legal sense. In the wake of localisation, after being pressed with questions about censorship on the .pk platform, Google offered the following explanation: “content will only be removed if Google agrees to do so, while all government requests will be logged in Google’s biannual transparency report”.
This statement rests on the assumption that the government or PTA is empowered to make requests at all. This may be based on Google’s experience in other jurisdictions where legislated takedown mechanisms exist, not realising no such mechanism exists in Pakistan, or that PTA’s powers stand challenged in court. On the domestic front this assumption stems in part from the familiarity with the Pemra model. Everyone assumes PTA is the Pemra equivalent for the internet. Petitioners, by including PTA as a respondent in cases, and courts in issuing directions to PTA to take action against content online, have also assumed content management on the internet is a function PTA is empowered to serve.
This assumption fails to make a fundamental distinction. Pemra regulates an industry and certain powers were written into its constituting act. The content creators — channels in this case — are its licensees. PTA also regulates an industry: telcos and ISPs. But the internet or foreign intermediaries are not PTA’s licensees. The internet or intermediaries do not create content; users of these platforms do. What goes on platforms is the voice of users from across the world. Citizens of Pakistan or those around the world are also not PTA’s licensees. Neither does the PTA Act confer upon it any content management powers.
Since 2006, everyone was operating under the assumption that the Inter-Ministerial Committee for the Evaluation of Websites had the mandate to issue blocking directives. All directives issued by the IMCEW were implemented as law until 2014, when its constitutionality and legality was challenged in the Islamabad High Court. It was then that the ministry admitted the IMCEW was a recommendatory body and the committee was disbanded by the prime minister in March 2015. For years, a committee without any legal mandate was issuing content takedown directives, and everyone was happily complying. The same mistake is being repeated with PTA.
Executive authorities cannot assume they have powers. Their powers have to be explicitly derived through law. Moreover, the legislature, when giving these powers, cannot do so in a manner undermining fundamental rights guaranteed to citizens under the Constitution, or go beyond the parameters defined by it.
What this is not about is content or the type of content. It’s about whether the roles and functions ascribed to authorities actually can be exercised by them — or should.
The writer is co-founder and director of Bolo Bhi, an advocacy forum for digital rights.
Published in Dawn, February 2nd, 2016