On November 20, 2017, Bolo Bhi submitted written arguments in its ongoing case challenging the Federation of Pakistan and the Pakistan Telecommunication Authority’s (PTA) powers to issue directions and block content on the Internet.
In December 2014, Bolo Bhi filed a petition before the Islamabad High Court challenging the legality and constitutionality of the Inter-Ministerial Committee for the Evaluation of Websites (IMCEW) and the powers exercised by the federation of Pakistan through the Ministry of Information Technology and Telecom (MOITT) and the Pakistan Telecommunications Authority’s PTA to block websites and content online.
During the course of hearings, the following questions arose: where did the IMCEW and the PTA derive authority to issue directions and block content online. The IMCEW’s authority was traced back to not a law but rather an executive notification issued by the Prime Minister in 2006. The PTA Act contained no provision that authorized it to block content.
We were able to obtain a stay order restraining the IMCEW and the PTA from issuing directions without the approval of the court. The respondents were also directed to place on record details of websites blocked over the last three years, as well as the minutes/record of meetings at the next date of hearing.
In a bid to vacate the stay, Ministry representatives argued there was ‘terrorist content’ online and given the urgency to take down such content, the government could not approach court to seek approval prior to acting. The court modified the stay order to the extent that any complaint regarding a website was to be made directly to the PTA, and the court was to be informed of any action taken by PTA, by filing a report explaining the reason for regulating the particular site.
Over the course of hearings, the federation admitted the IMCEW was a recommendatory body. In March 2015, they submitted before court a notification by the Prime Minister, de-notifying the IMCEW. This was accompanied with the announcement that the PTA was being given content management powers. In December 2015, the Telecommunications Policy 2015 was issued in which content management powers were given to the PTA. In February 2016, Bolo Bhi amended its plaint to challenge Section 9.8 of the Telecommunications Policy titled ‘Content Management.’
During this time, the court was informed that a cybercrime bill was being introduced. In August 2016, the Prevention of Electronic Crimes Act (PECA) came into effect with content management powers given to the PTA under Section 37. The Ministry maintained the petition had become infructuous as a result. Months later, the court instructed Bolo Bhi to file a written submission which was filed in November 2017.
Although the PTA has been authorized to block content under PECA, however we believe the question raised through the petition i.e. the executive arbitrarily and unlawfully exercising such powers to issue directions and block content, needs to be settled. Even more so now that the Ministry of Interior has also taken it upon itself to instruct the Federal Investigation Agency (FIA) to monitor and act against content on social media. While Section 37 of PECA was introduced to authorize the PTA to manage content (which on principle is a power still suspect, constitutionally), this authorization does not extend to MOITT or any branch of the federation of Pakistan. In our view, the exercise of such powers is both assumptive and unlawful.
Read the written submission here
See complete archive here