ON June 4, 2020, the Pakistan Telecommunication Authority (PTA) held a consultation on the Citizens Protection (Against Online Harm) Rules 2020. While civil society groups boycotted it, standing by their position to first withdraw and de-notify the Rules, a separate session was held with journalists. Dawn’s June 7 report detailing the discussion illustrates how there isn’t even a base understanding of the scope of Section 37 and Rules under it.
According to the report, the discussion centred “on regulation of content related to blasphemy, child pornography, extremism, hate speech, character assassination and fake news — areas defined as ‘priority’ by the consultation committee”. Section 37 lists the following content categories: “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”. These are derived from Article 19 of the Constitution since Section 37 is a direct copy-paste of it with the exception that “friendly relations with foreign states” was omitted from the final version of Section 37.
Unlike Article 19-A, under which right to information laws have been enacted by the federal and provincial legislatures, which in varying degrees specify information which may or may not be obtained, outline a process through which applications for information may be made and subject organisations to penalties for delaying or denying information, Article 19 remains unlegislated. What should be parliamentary and judicial functions have been outsourced to a telecom regulator under Section 37, to act as the custodian of speech and information in an overbroad, arbitrary and arguably unconstitutional manner. It is from here that the repeal position is derived. The ad-hoc manner in which powers have been exercised under Section 37, to stifle dissent and deny due process to those against whom action has been taken — evidence of which there is plenty — substantiate that it serves no purpose other than being a censorship-enabling provision for the state.
Discourse erroneously rests on the presumption that such powers are necessary to shield citizens against harm. Common sense and evidence suggest otherwise. There are four offences under the Prevention of Electronic Crimes (Peca) Act, 2016, for which aggrieved parties can apply to the PTA: Sections 20 (offences against dignity of a natural person), 21 (offences against modesty of a natural person or minor), 22 (child pornography) and 24 (cyberstalking). Subsections allow aggrieved parties to apply to the PTA for the “removal, destruction” or “blocking” of such information.” While problematic, what is also criminalised under Peca is the glorification of an offence (Section 9), cyberterrorism (Section 10) and hate speech (Section 11), which criminalises advancing “interfaith, sectarian or racial hatred”. These remain even if Section 37 is repealed.
Digital rights groups frequently escalate requests by aggrieved parties with platforms pertaining to harassment and breach of privacy that fall within the purview of their guidelines and rules. It is this process through which they are resolved, not government efforts. Yes, the mechanisms are far from perfect, requiring deliberation. How citizens are to be protected against breach of privacy, harassment and incitement under the laws and what more needs to be done is unconnected to the Rules and Section 37. Dealing with disinformation and ‘fake news’ by applying a non-Trumpian approach also requires discussion. But this must be done separately from the Rules. The government must stop obfuscating and conflating unconnected issues to seriously address citizen concerns by learning rather than dictating what they know little of.
Section 37 only exists as a tool to maintain the state’s hegemony over speech and information. Since this is impossible without governing content that is available on foreign platforms also used by Pakistani citizens and journalists to express and challenge the state’s view, the attempt is to establish the state’s writ over foreign intermediaries. The problem arises because only some content requests are met whereas the desire is for every content restriction and user data request to be complied with and not just by some, but all platforms. Hence the direction to companies to establish local offices so laws such as Peca become binding and direct control can be exercised over them with the ability to coerce and apply legal and extralegal pressure. To this effect, the government and all those invested in this debate should read the Asia Internet Coalition’s comments on the Rules, submitted to the PTA on June 5.
The way forward is an informed discussion, not insistence to legitimise such consultations or accede to demands for a blueprint on censorship.