SOCIAL media networks have proved to be excellent habitats for the culture of fake news, online hate speech and cyberbullying. There is a global call for state regulation of social media networks to combat these ills. In legal terms, the identified methods of state regulation of free speech can be classified under two models: prior restraint and subsequent punishment.
Briefly, the prior restraint model envisages a preventative system in which the state restrains illegal and unprotected speech considered harmful to society even before it is uttered or published. This can be achieved by the state establishing licensing authorities, a content oversight mechanism, procedural rules, barriers of entry for news and media organisations, etc.
The subsequent punishment model simply evolves from the deterrence doctrine of the law — the state sets up penalties and other civil liabilities for illegal speech and punishes the perpetrators after the judicial determination of the nature of the speech. This model aims to deter people from abusing the right to freedom of speech through the possibility of facing criminal and/or civil liability.
If speech needs be regulated, it should be by judicial determination.
Many nations recognise that the prior restraint model is excessive and repressive and should be used, if required, rarely. Take the ‘Southeastern Promotions’ case in which the US supreme court held “a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand”.
In Pakistan, the federal government has floated a proposal to unite all media regulatory bodies into one body — the Pakistan Media Regulatory Authority (PMRA). The government says that among the many roles and functions of this organisation, the PMRA is also to regulate online speech on social media, because the government believes that online journalism through social media is surpassing television and print journalism. However, its proposed mechanism to regulate speech on social media through the PMRA is unimaginatively inspired by the same prior restraint mechanisms envisioned under the existing Pemra Ordinance to regulate television content.
Specifically, the PMRA aims to grant licences to social media journalists, without which one would not be able to publicly post news, opinions and other content of a public nature on their social media channels. Many stakeholders have already expressed their concerns over this mechanism; they say that not only is it impossible to implement but that it is a covert attempt at censorship rather than regulation.
The federal government’s approach deserves criticism on two major counts. First, the prior restraint model is an obsolete mechanism to regulate free speech on social networks. Advocate Salwa Rana working at Media Matters for Democracy states: “Licensing of social media actors is thoroughly impractical due to the fact that online blogs, forums, networks and websites can be operated by anyone from the general public at any time under the umbrella of citizen journalism. Given the low cost of internet and smartphones, millions of Pakistanis use social media. Since each user is a potential citizen journalist, it is downright impossible and impractical for the government to register everyone.”
Second, the employment of measures of prior restraint by the government to regulate social media through the proposed PMRA should also be discouraged because a licensing and censorship system which runs through executive officers without any judicial determination will become another tool for state repression and ultimately freeze free speech in Pakistan’s online spaces.
If speech needs be regulated, it should be by judicial determination, and not executive decisions. Also, the person accused of abusing the right to freedom of speech should be provided an opportunity to prove that the speech is protected under the Constitution. The Supreme Court has previously held: “The freedom of expression includes the right to receive information through organs of public opinion and the freedom of press in its turn rests on the assumption that there is a wide dissemination of information. Such dissemination inevitably contemplates absence of restraints.”
Rather than looking at methods to muzzle the voices of Pakistani netizens, the federal government should fund capacity-building measures in institutions (ie FIA and the courts) responsible for prosecuting illegal online speech so that it is dealt with judiciously and those who abuse this freedom are punished. Similarly, combating fake news should be done through public information campaigns which sensitise the population on the need to fact-check their sources of online content. Measures such as these will ensure that our online spaces remain safe, and most importantly, continue to remain free.
The writer is a human rights lawyer working at the Law and Policy Chambers in Islamabad.
Published in Dawn, April 3rd, 2019