THE federal government, represented by the attorney general of Pakistan, assured the Islamabad High Court that the social media rules notified by the government for moderating “unlawful online content” would be revised. This is a welcome development in a series of events describing which as a democratic nightmare would be an understatement.
The federal cabinet first suddenly notified a set of social media rules called the Citizens Protection (Against Online Harm) Rules in January 2020. After a domestic outcry and international protest by critical stakeholders for not being consulted or asked for feedback as is the tradition in any functioning democracy, the prime minister “suspended them”.
However, the prime minister of Pakistan has no legal authority to overrule decisions made by the federal cabinet. This is as per the precedent set by the Supreme Court of Pakistan in the Mustafa Impex case. When this was pointed out informally, the response was that this approach was “easier”. This government must realise that what seems easy isn’t always legal or democratic.
The consultations that followed were nothing to write home about either. A questionnaire was published by the Pakistan Telecommunication Authority (PTA) with 10 leading questions offering ‘yes’ or ‘no’ options for response, and this was supposed to be a consultation with stakeholders and experts.
The issue with the new social media rules is that they should not exist in the first place.
The companies and groups that still attended the consultations were soon to be disappointed when the new draft of the social media rules, now named without any pretence of protecting citizens and called the Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules, was notified by the cabinet in October 2020.
In further disregard for the democratic process, no draft was shared with the stakeholders for feedback as is the practice in democratic societies, and no feedback given during the consultation process was incorporated in the new version of the rules, save for the deletion of the clause setting up an office of “national coordinator”, and further defining the criteria for what qualifies as “unlawful online content” by inserting verbatim clauses from the Pakistan Penal Code and the Constitution for officials of the PTA to interpret and implement.
The challenges to the Rules in the petitions submitted before the Islamabad High Court deal with their constitutionality. The court called the Rules prima facie a violation of Articles 19 and 19-A of the Constitution that pertain to the right to freedom of speech and right to information. However, the latest court order ended up giving more time to the federal government to review the rules with authority vested in the attorney general of Pakistan. It appears that the government is buying more time with such antics, and their lack of sincerity is evident from the fact that for over a year, no meaningful consultation has taken place. With the court’s orders, one expects more sincerity from the government in this process moving forward.
Aside from the legal proceedings, the underlying issue is that these Rules should not exist in the first place. Let us take a look at what having them means. Section 37 of the parent legislation, which is the Prevention of Electronic Crimes Act (Peca), 2016, deals with “Unlawful online content”. The language of this section is by default anti-rights: it is made up entirely of the language of the provisos of Article 19 of the Constitution that protects the right to freedom of speech, without even mentioning or protecting the right to freedom of speech and press freedom. By centring an entire clause of a law only on the exceptions, the intention of the clause is clear: to restrict freedom of speech in the country. The provisos are supposed to be interpreted with restraint, only “reasonable restrictions” are to be imposed by law, and these are only supposed to be interpreted by the higher judiciary.
This is clear from the utility of Section 37 so far: blocking of websites including those of political parties and international news sites, entire platforms under the moralistic garb of “obscenity” when they are empowering content curators while being regulated by international standards of content regulation by platforms, and arm-twisting platforms with threats of blocking if they do not accede to government demands of censorship.
The platforms, on the other hand, must be pushed to increase their investment in moderation capabilities relating to local language content; which is the practical way since they have the infrastructure to process user reports as well as filters that flag keywords. The filters must be scrutinised by human moderators that understand local contexts of incitement to violence rather than artificial intelligence on a corporate censorship spree, along with options of appeal and effective oversight mechanisms.
The economic impact of such Rules can no longer be ignored on an economy with increasing earning from the technology sector. Content creators, internet service providers, software houses, and a government that wants investment will all be impacted if rules that normalise censorship of the internet are in place.
Hence, the solution to this conundrum that we find ourselves in lies in parliament. Legislators must move to amend Peca and make it rights friendly rather than rights restricting. And to begin this process, Section 37 of Peca must be deleted, as it essentially empowers the state to carry out political censorship; the takedown of online content that harms citizens is already stipulated under Section 20, 21, 22, and 24 that deal with dignity and modesty of a citizen, child pornography, and cyberstalking. Further, Section 20 that is a criminal defamation clause is also counterproductive to a rights framework protective of citizens as it is abused by predators and those in power to silence those who speak of others’ crimes, most notably against those who speak up about sexual harassment.
The writer is director of Bolo Bhi, an advocacy forum for digital rights.
Published in Dawn, January 31st, 2021