MUCH of 2020 has been marred by uncertainty regarding the state of social media in Pakistan. With surprise new rules in the absence of consultation or transparency, blanket bans on platforms and, absurdly, even videogames, and misuse of laws against freedom of speech on the internet; it has been a dismal year where such antics frustrated the struggles that came with the global pandemic, rather than making the internet a safe space for a populace in lockdown.
Internet-related law and policymaking in Pakistan is as new as anywhere else in the world, and requires utmost caution and expertise considering there is little precedent related to it. However, it is important that internet laws and policies be democratic, transparent, consultative, well-informed, practical, and rights respecting.
Peca 2016 — the primary law governing the internet in Pakistan — does not meet many of these standards. It is a product of the PML-N government which faced opposition from the PTI; the PTI has only worked to make the impact worse with the censorship, chilling effect, and restriction of freedoms that the law seemed to have been intended for.
One of the most controversial parts of this law deals with content regulation on the internet under Section 37. It mandates the PTA to prescribe rules “with the approval of the federal government” “providing for, among other matters, safeguards, transparent process and effective oversight mechanism for exercise of powers” for blocking and removal of “unlawful online content”. Unlawful online content is specified as content that the authority can remove or issue instructions to block for access in Pakistan “if it considers it necessary in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, public order, decency or morality, or in relation to contempt of court or commission or incitement to an offence”.
It is important that internet laws and policies be democratic, transparent, consultative and informed.
This language is taken directly from Article 19 of the Constitution, which is to be interpreted by only the higher judiciary subject to reasonable restrictions which are interpreted by the honourable judges using rules of statutory interpretation, and certainly not subject to the whims of officers of the PTA. This begs the necessity for amendment to this clause of Peca which is primarily intended for online censorship rather than anything else.
But even if we are to consider this section as passed by parliament, the rules under Section 37 are supposed to provide for safeguards, transparent process, and effective oversight mechanism for the exercise of power. But what did we see instead? Sweeping additional powers being mandated to the PTA going even beyond the broad powers of the parent legislation, requirement of data localisation and setting up of offices by internet platforms in Pakistan, imposition of content regulation regimes which are to be given preference over the universal platform rules.
The rules also threaten to block the entire platform if demands for content removal or blocking by the PTA are not complied with, which goes against the limitation of the liability of service providers (or intermediaries) by law via Section 38 of Peca. There is also no guidance on protections, or explanation of the vague terminologies that are most often abused for blanket censorship.
This was the version of the rules notified by the cabinet in February 2020 titled ‘Citizen Protection Rules’, with barely anything relevant to citizen protection. The sections that actually protect citizens — Sections 11, 12, 16, 21, 22, 24 — are not related to Section 37 that require such rules. No consultation was held with stakeholders, there was no transparency regarding the process, and their notification came as a surprise to everyone.
The Global Network Initiative (GNI), a multi-stakeholder network that includes tech companies, academics, civil society, and investors in its content regulation brief that was also shared with PTA and the ministries of IT and human rights recommends that content regulation processes are “open, inclusive, deliberative, and evidence-based”, and underscores that “definitions and obligations should be clear and targeted at services that face the most risk”. It also identifies “strong transparency, remedy, and oversight measures, together with the preservation of intermediary safe harbours for user-generated content, as important characteristics of effective content regulation”.
After strong opposition from civil society, internet companies, and collectives such as the GNI and Asia Internet Coalition, the rules were “suspended” but never de-notified as per law. Some consultations ensued with stakeholders which human rights organisations boycotted owing to no formal de-notification, and now a draft not very different than the previous one is said to have been notified, but not shared publicly.
For any consultative process to be legitimate, feedback should either be inculcated into the legal or policy instrument, and if not, then a justification should be provided for why the recommendations were not taken into account. What we see presently is that consultations are an eyewash to try to lend legitimacy to draconian measures. For comparison sake, the UK’s online harm rules have been under consultation for over two years.
Turkey recently passed very similar rules to the ones Pakistan is about to issue, and social media companies have publicly refused to comply with the demands. So does Pakistan want to go down the road of China which is disconnected from the rest of the world through its firewall that does not allow global connectivity? Pakistan is not in such a position, and it is also a democratic republic, unlike China, with constitutional protections of fundamental rights.
Companies are also unwilling to open local offices and databases because of weak rule of law, low ranking of Pakistan on global internet and press freedom indices, and an already unpredictable censorship ecosystem where apps and games are blocked arbitrarily, and telecom offices are sealed at whim by state agencies.
For a Digital Pakistan that wants its talented young people to create rather than seek jobs, the internet law and policymaking process must be consultative, involve all stakeholders, be transparent, take into account fundamental rights, understand the nature of the internet, and be evidence-based rather than rooted in a regime of control and censorship.
The writer is director of Bolo Bhi, an advocacy forum for digital rights.
Published in Dawn, November 8th, 2020