On January 21, Nida Kirmani and Reema Omer received notices from Twitter Legal via email, alerting them their tweets had been reported. Twitter had received “official correspondence” claiming the content was “in violation of Pakistan law.” This generated a fair bit of outrage – mostly directed at Twitter – for colluding with the government.
As pointed out then, when Twitter restricts/removes content it should be questioned about it. But in this specific instance, these emails are essentially user notifications, alerting users about requests received against their accounts or tweets, to notify and provide the ability to respond and challenge, should they wish to. What we forget in directing our ire at Twitter for notifying users, is the regime enabling these requests: Section 37 of the Prevention of Electronic Crimes Act (PECA). It is Section 37 that is the problem.
Section 37 literally copy pastes Article 19 of the Constitution and gives the Pakistan Telecommunications Authority (PTA) the powers to interpret and apply the exceptions – what should be a legislative and judicial function. Though given through law, this is an unbridled and overbroad power given to an executive authority. It needs to go.
Once written into law, it was always going to be used to legitimize takedown requests to platforms such as Facebook, Twitter etc. On the dangers of this section – which was then Section 34 and now 37 – I had written in November 2015: “Section 34 reeks of the intent to maintain and preserve the state’s hegemony over information and speech.”
(see: Big Brother Awaits)
And in December 2015: “Our laws and courts have no jurisdiction over content available on these platforms. While the government, through PTA, routinely makes requests to them for content restriction and user data, each company has a different approach based on its respective policy and legal risk assessment. By giving PTA powers through law does not mean these platforms will do its bidding. Some may, some may not.”
(see: Digital Rights)
Facebook’s transparency report shows a hike in requests and compliance. Over 2000 pieces of content restricted between Jan-June 2018. This is what the report also mentions: “We restricted access in Pakistan to items reported by the Pakistan Telecommunication Authority as allegedly violating local laws.” Twitter’s transparency report for Jan-June 2018 records 240 government requests for content restriction and 3004 accounts specified. Compliance was 0%. The report does not specify the government authority making the request.
Now on this question of who made the requests to Twitter this time around when notices via email were received – since Federal Information Minister Fawad Chaudhry says it was not the government – it is important to establish who it was and what official channel was used. Most likely it was the PTA – and that counts as a government request when received by a platform such as Twitter. But if it was not PTA and some other Ministry or law-enforcement agency sent them – as stated by a PTA official in this article – even under PECA, that is not permitted.
It is pertinent to share here what was argued by Bolo Bhi in our case before the Islamabad High Court (IHC) and later held by Justice Athar Minallah. A little background and facts before that. Bolo Bhi filed a petition in 2014, 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 to block websites and content online.
(see: IHC case archive)
While our case was still in court, the government (PML-N at the time) started making announcements about empowering PTA with content management powers – after it admitted in court that the IMCEW was a recommendatory body (though it routinely issued content blocking directions which were implemented by the PTA and ISPs). While the case was still pending, PECA was enacted. Section 37 could not be challenged through our existing petition and besides the government was arguing the petition had become infructuous after the passage of the law and should be disposed off. Also, at the time there was consensus based on consultations between lawyers and rights groups that a challenge to PECA in court – whether the whole law or parts of it – was not advisable. The view was that our courts are (were?) not receptive to challenges or inclined towards striking down laws passed by parliament. Established misuse was a more compelling case to plead before court and then too, chances of the section being interpreted/read down was greater than it being struck down.
Parliament remained the main venue for challenging this section. The advocacy on PECA continued. PECA became law. And then, out of the blue, in November 2018, we were asked by the court to make a written submission. At the time of making this submission, the Ministry of Interior and the FIA (Federal Investigation Agency) had taken it upon themselves to monitor and act against content on social media, which was brought on record.
The discussion then was in this context: though PECA is now law and Section 37 gives PTA certain powers, however there are still certain limits on how the law can be applied and powers exercised. In our November 20, 2018 note, we submitted:
“Respondent No.1 (Federation of Pakistan) does not have any inherent power to regulate content on the internet either vide the introduction of the Impugned Telecommunications Policy or vide issuing directions to any executive authority to do the same. Federal Government even after promulgation of PECA is continuing to illegally assume the power of content management and blocking on the internet by issuing directions to various agencies like FIA, having no competence or jurisdiction to do the same…”
“…It is submitted that without prejudice to the constitutionality of the aforesaid provision, pursuant to sub-section 3 a power to issue directions has been granted to Respondent No.1 however use of the words: “until such rules are prescribed…”, clearly envisage that the said power is transitory and cannot be abused for unlimited period. Exercise of such unregulated power by Respondent No.1 would tantamount to fraud on the statute.”
“…Respondent No.1 has no legal authority to regulate internet content under the Telecom Act and/or PECA…the transitory and unregulated power granted to Respondent No.1 vide section 37 of PECA cannot be abused to regulate content on the internet for indefinite period.”
Section 37 specifically ascribes the function to “remove or block or issue directions for removal or blocking of access” to the Authority which in the definitions section of the law is PTA. After PECA, can PTA do this? Yes. Should it? No. Can anyone else other than PTA do it? No. Are they though? Maybe. Bear in mind, to date, rules on how these powers may be exercised under Section 37 have not been framed or issued.
Important observations were made in the judgment with regards to the independence of PTA and how directives by the federal government are not binding. The order, dated 25.05.2018, reads:
- “…The Federal Government like any other person can lay an information before the Pakistan Telecommunications Authority but the same cannot be treated as binding in the context of subsection (1) of Section 37. The Authority is exclusively empowered under subsection (a) of the Act of 2016 to consider any information laid before it and then to decide whether or not to take action in the manner prescribed therein. In matters which fall within the exclusive domain of the Pakistan Telecommunication Authority under subsection (1) of Section 37 of the Act of 2016, the powers and discretion is required to be exercised independently and without being influenced by any direction or information laid before it by the Federal Government.
- The august Supreme Court observed and held in the case of M.A. supra that a discretion must be exercised only by the authority to which it is committed, and that in exercising the same the authority must genuinely address itself of the matter before it and must act in good faith and have regard to all relevant considerations. It was further held that in exercising discretion, the authority must not be swayed by irrelevant considerations, nor must it seek to promote purposes alien to the letter and or spirit of the legislation that gives it the power to act and, therefore, must not act arbitrarily or capriciously.”
As far as Section 37 goes, the legislature must be pushed to get rid of it. And in the meanwhile, courts moved to ensure that the powers which do exist, are not exercised arbitrarily and illegally by all and sundry.
We need our parliament, courts and citizens to be more receptive to fundamental rights arguments and challenges. To defend them rather than make excuses and justify their curtailment. When examples like the FCC (Federal Communications Commission) or Ofcom are presented as best practices by the government in concept notes on regulatory frameworks – like the one circulated for the establishment of the PMRA – they conveniently forget to mention the legislative and political environment in the countries they operate in, where due process and rights mean something. The FCC exists in the land of the First Amendment. No such protection here. There is a huge difference between the text of the First Amendment, what it means to the state and citizens, and how it is defended. No such thing here with Article 19, which is limited and the defence of it is mostly apologetic with ifs and buts attached. And the state has no qualms about restricting this right arbitrarily and illegally. Which is why, the PMRA (Pakistan Media Regulation Authority), the formation of which was approved by the Federal Cabinet, is something to keep a close eye on and be wary of.