Prevention of Electronic Crimes Act, 2016 and Freedom of Expression
When discussing the state of right to freedom of expression in Pakistan, one of the most important issues that arises is the cybercrime law known as Prevention of Electronic Crimes Act, 2016. Passed in 2016, the law was initially aimed to curb online crimes but went on to have dire consequences for freedom of speech and press freedom in Pakistan.
There are a number of sections of the law that affect freedom of expression in the country, including section 9 (glorification of an offense), section 10 (cyber-terrorism), section 11 (hate speech), section 20 (offenses against the dignity of a person) and section 37 (unlawful online content).
Almost all sections of the PECA 2016 have similar problems. Digital rights activists have raised concerns over the excessively broad and vague framing of the law, which allows law enforcement agencies and regulators like the Federal Investigative Agency (FIA) and Pakistan Telecommunication Authority (PTA) to abuse their powers without any check and balance by the state or the judiciary.
Section 37 of the PECA, 2016 deals with the regulation of online content by giving PTA the authority to block/ remove content that is deemed unlawful as per the restrictions in Article 19 of the Constitution. Even though the Authority is required to have transparent mechanisms and follow due process while regulation online content, the law has been repeatedly used arbitrarily resulting in violations of freedom of expression under Article 19, along with Article 19-A, the right to access to information.
Litigation on PECA, 2016
There have been a number of strategic litigation dealing with PTA’s content blocking powers. One of the more successful ones is the case of Awami Workers Party Vs. PTA where it was upheld by the Islamabad High Court that PTA was in violation of its obligations under PECA, along with numerous other constitutional provisions that guarantee fundamental rights. However, despite the ruling in 2019, we saw a number of apps, such as Tiktok and PUBG, facing bans in Pakistan without knowing the true cause of the action.
In the decision of AWP, the Court ordered PTA to frame Rules as required under section 37 that lays down safeguards and a transparent mechanism on how PTA exercises its powers under this section. The first draft of the Rules was presented to the public in January 2020 which were taken back by the Government after immense outcry from civil society regarding its implications on fundamental rights in the country.
Social Media Rules
The latest draft of the Social Media Rules was notified in November, 2020. The Rules create a number of obligations for Social Media Companies such as Facebook, Twitter, etc. from demanding that they open offices in Pakistan, localise the user database, and to remove content according to Pakistani laws. As of January 2021, a number of writ petitions are pending in the Islamabad High Court, demanding the Rules to be set aside and be declared ultra vires of the parent act, that is PECA, 2016.
Summary of Study Pack:
- A presentation explaining how the various sections of the PECA, 2016 have had an impact on free speech in the country, supported by recent cases.
- Detailed case study on the “Naya Pakistan” case which explores in detail how different sections of the PECA have been weaponized against political expression.
- Detailed case study on the “AWP Vs. PTA” case exploring in detail the strategic litigation from its inception till the final judgment by the Islamabad High Court, followed by the aftermath and contempt of court petition.
- A presentation summarising the website and app blockages reported in the last two years, further analysing PTA’s exercise of power under Section 37 of the PECA,2016.
- A presentation summarising all other strategic litigation pertaining to PECA, 2016.
- A presentation on detailed analysis of the Social Media Rules, 2020, and the litigation pertaining to it.