Beating Around the Bush on YouTube – Again

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During the 16th session of the National Assembly of Pakistan on December 4, 2014, MNA Shazia Marri received a written response from the Cabinet Division to her question on the YouTube ban. Ms Marri’s question was as follows:

Will the Minister In-charge of the Cabinet Division be pleased to state:

(a) whether there is any proposal under consideration of the Government to lift ban on the You Tube; if so, when; and

(b) the steps taken by the Government in this regard, so far?

To this, the response received from the Cabinet Division was as follows:

(a) On September 17th, 2012, the Honorable Supreme Court ordered PTA in Constitutional Petition No. 104 of 2012 to block offending material on YouTube website or any other website. .As no technical solution was available, which could completely block objectionable material on the YouTube, in compliance with the Supreme Court’s orders, YouTube was blocked by PTA and compliance report was submitted to the Supreme Court on the same day. The Matter was reviewed several times but the situation effectively remains the same. Technical experts are of the view that no technical solution is available which can guarantee 100% blocking of the objectionable content on YouTube.

(b) The steps taken are:

• 1265 URLs containing blasphemous movie, “Innocence of Muslims” on YouTube were blocked and warning messages have been displayed on 127 URLs by requesting YouTube before February 2014. Thereafter, due to copy right issues and obeying US court orders, Google removed the full length movies. However, clips of smaller length are still available on Youtube.

• As a long term solution, Intermediary Liability Protection law is required to be enacted. GoP is in the process of enacting the law through Prevention of Electronic Crime Bill 2014. It will then help towards localization of YouTube in Pakistan. Once localized, they will respond to court orders from Pakistan.

Senator Osman Saifullah Khan, who also filed a similar question in the Senate. His question to the Minister In Charge of the Cabinet Division, filed in August 2014, was as follows:

Will the Minister Incharge of the Cabinet Division be pleased to state:

(a) whether there is any proposal under consideration of the Government to restore access to You Tube in the country, if so, when; and

(b) the impediments in restoring the said access?

To this, the response from the Cabinet Division, received on February 6, 2015, was as follows:

 (a) On September 17th, 2012, the Honorable Supreme Court ordered PTA in Constitutional Petition No. 104 of 2012 to block offending material on YouTube website or any other website. As there was no technical solution available, which could block 100% objectionable material on the YouTube, in compliance with the Supreme Court’s orders, YouTube was blocked by PTA and compliance report was submitted to the Supreme Court on the same day.

Matter was reviewed several times but the situation effectively remains the same. Technical experts are of the view that there is no technical solution available, which can guarantee 100% blocking of the objectionable content from YouTube.

As an alternative measure, GoP is in process of providing Intermediary Liability Protection for internet content providers through Prevention of Electronic Crime Bill 2014 which will then be a consideration for localization of You Tube in Pakistan subject to it being a business case for Google; Thus, this in itself will not guarantee access to YouTube in Pakistan.

(b) The impediments are:

  •  Presence of blasphemous movie, “Innocence of Muslims” on YouTube.
  • Non-availability of technical solution to block the secured objectionable content with 100% effectiveness.
  • Orders of the Supreme Court are still effective.

Let’s clarify some things. The specific instructions issued in the 2012 Supreme Court order were the following:

“We direct the Chairman PTA to immediately block offending material on U-Tube website or any other website.”

Nowhere did the order state YouTube as a whole was to be blocked.

[Read full order here]

Furthermore, from April 2013 to May 2014, extensive hearings took place at the Lahore High Court on the YouTube ban where government representatives and non-government experts made submissions. In its last order, the honourable judges stated the following:

“From the report of the Ministry, as well as experts, it appears that the most feasible option that requires consideration is the introduction of ‘Interstitial warning’ with full access to YouTube.”

[Read full court order here and reports by MOITT and technical experts here]

The government, through its response to Ms Marri’s query, is providing a misleading account of what the resolution can or should be. The question of Intermediary Liability Protection was long settled in court in 2013. The court, through the Ministry of IT & Telecommunications, wrote to Google seeking an answer to whether it would be willing to localize its service in Pakistan if the court granted it intermediary liability protection in the interim, till parliament legislated. In a nutshell, Google’s response was they appreciated the provision but the decision to localize in countries was a “business, legal and commercial” one.

The resolution of the YouTube ban has nothing to do with the pending cybercrime legislation or intermediary liability protection. Those issues require attention in their own right.

[Read more on intermediary liability protection in our legal analysis here]

Given these facts, why is the government still harping the same tune and refusing to move on? Why doesn’t it, instead of using the 2012 Supreme Court order to shield itself and deflect responsibility and criticism, go before the Supreme Court and provide a truthful account on the progress that has been made in the past two years on this subject.

Resources:

YouTube Ban: Archives 

Bolo Bhi’s YouTube Resource Timeline

YouTube LHC Case Updates by Bolo Bhi – Timeline

YouTube Ban 2012-2016 – Timeline

Farieha Aziz is a Karachi-based, APNS-awardwinning journalist. She is a co-founder and Director at Bolo Bhi. She has a masters in English literature. She worked with Newsline from July 2007-January 2012 and taught literature to grades 9-12. She served as an amicus curiae in a case filed in the Lahore High Court in 2013, challenging the ban on YouTube, and is currently a petitioner on behalf of Bolo Bhi in a case filed in the Islamabad High Court challenging government's censorship on the Internet and the powers of the regulator. She can be found on Twitter: @FariehaAziz and reached via email: farieha@bolobhi.org

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