THE recent Citizens Protection (Against Online Harm) Rules upend, among other fundamental rights, privacy and free speech safeguards ensured by the Constitution. Our current cyber legal landscape forces data subjects to surrender their private data and its ownership to the state and mandates service providers (now social media platforms) to retain and surrender more citizen data.
This approach inevitably creates conflict as it does not separate the regulation of systems (including private and public platforms) and online content. Without a robust data protection law safeguarding citizens’ privacy and holding public and private bodies accountable for data breaches, it is impossible to regulate online content without usurping citizens’ fundamental rights.
Whereas the primary step should have been to legislate on data protection to provide citizens with rights over their data, set up accountability mechanisms and impose clear obligations for data controllers, the government has landed abruptly on the regulation of ‘unlawful’ online content.
This draws attention to the state’s cybersecurity and legal strategy of privileging state interests over citizen rights and potentially allows for indiscriminate violations of the said rights. The draft Personal Data Protection Bill proposed by the previous government in 2018 also contained wide loopholes for data controllers that excluded large amounts of citizens’ personal data held by public bodies from the protections provided by the bill.
Our cyber legal landscape is without safeguards and extremely susceptible to abuse.
According to the European Commission, ‘unlawful’ online content includes crimes such as child sexual abuse material, infringements of intellectual property rights, consumer protection, illegal hate speech and incitement to terrorism. However, in Pakistan, the ‘illegality’ or ‘unlawfulness’ of online content will be determined by the draconian provisions laid down in the Prevention of Electronic Crimes Act (Peca), 2016, and Pakistan Telecommunication (Reorganisation) Act, 1996.
Instead of upholding citizen’s constitutional rights, our focus is misguidedly on the ever-so-broad “fundamental values of the state of Pakistan including the security, integrity or defence of Pakistan, public order, decency or morality” as reproduced in the definition of ‘extremism’ in the new rules. Any violent, vocal or active opposition to this would constitute ‘extremism’ and be prosecuted accordingly.
In addition to these prohibitions, Section 37 of Peca also criminalises incitement to any offence under the act, and “against the glory of Islam”. Further, the provisions in the parent acts fail to safeguard against infringements of intellectual property rights or consumer protection. Despite a provision on hate speech under Section 11, individuals are not protected from hate speech on account of their race, disability, nationality (including citizenship), ethnic or national origin, religion, gender identity, or sexual orientation. On the contrary, the provision has been used to silence marginalised groups.
Last year, Aurat March organisers filed a collective complaint with the FIA against a campaign of targeted harassment of organisers and participants, including minors. The harassment was in the form of abusive language and threats of violence, including rape and murder. Images of their placards had also been doctored so as to subject participants to more online abuse. Yet, neither was an investigation conducted nor any action taken under the relevant provisions of Peca. And, despite the gendered nature of the online violence, the complaint did not fall under the ambit of hate speech under Section 11.
This year, just two weeks before the march, an application submitted in the Lahore High Court petitioned the court to implement the new rules in order to “strictly regulate the social media in Pakistan as soon as possible so that anti-state activities such as the Aurat March, which is being actively advertised on the social media may be silenced once and forever”.
Such problematic use of the rules exposes the potential for abuse of arbitrary powers that are beyond the scope of the parent acts. Similarly, Section 20 of Peca (which criminalises online defamation against a natural person) has been used indiscriminately to silence political dissidents, marginalised groups, and victims of harassment and violence. The “glorification of an offence” under Section 9 is another equally problematic provision.
Harmful weaponisation of these laws underscores the need to revise our cybercrime legal regime. Extremely susceptible to abuse, it provides absolutely no safeguards to victims. Instead, it further curtails their rights to privacy, free speech and expression.
Under the new rules, the ‘national coordinator’ is authorised to “remove or block or issue directions for removal or blocking of unlawful content”. The authority to perform these functions was previously conferred by Peca upon the PTA; so by delegating its functions to the national coordinator, the federal government has acted in excess of its powers.
The rules also confer the power to advise the provincial and federal governments; issue directions to departments, authorities and agencies; and summon official representatives of social media companies. These functions exceed the scope of the parent acts by granting wide powers to the coordinator without providing for an adequate oversight mechanism, and effective review and appeal remedies.
As per Article 19 and 19-A, the rights to freedom of speech and access to information are “subject to any reasonable restrictions imposed by law”. Clearly, the wide powers granted to the national coordinator to regulate online content arbitrarily are neither reasonable restrictions nor constitutional. Additionally, failure to provide qualification criteria for the position is concerning. A candidate without the necessary experience and expertise could spell disaster for citizens’ rights.
The example of the UK-based Ofcom comes to mind. An independent public body regulating online content, its only funding source is fees paid by companies it regulates. Our national coordinator, however, will be appointed by the government. This, in fact, calls into question the ‘independence’ of this office.
Over all, the rules are repugnant to both the parent acts and are bound to have serious implications for citizens’ fundamental rights.
The writer is a barrister.
Published in Dawn, March 2nd, 2020