Islamabad, February 23, 2021 — The Attorney General (AG) for Pakistan, in a meeting on February 19, has said he will present his recommendations to the federal government for revising the controversial social media rules, after admitting that the rules contained significant flaws and should be revised through more discussions with a broad group of stakeholders.
The AG Khalid Javed Khan held a consultative meeting at his office on Friday with petitioners who had challenged the Removal and Blocking of Unlawful Online Content Rules, 2020 in the Islamabad High Court (IHC) along with other selected stakeholders. Khan was accompanied by the Pakistan Telecommunication Authority (PTA) Chairman Amir Azeem Bajwa, and the Federal Secretary for the Ministry of Information Technology and Telecommunication (MoITT) Shoaib Ahmad Siddiqui.
The rules for online content regulation, which were framed under the Prevention of Electronic Crimes Act (PECA), 2016 and published by the ministry in November, are currently facing a legal challenge in the IHC through petitions filed by the Pakistan Federal Union of Journalists (PFUJ), journalist Amber Shamsi, and journalist Tanzeela Mazhar.
The IHC is hearing these petitions together in connection with other cases related to contempt of court against PTA regarding website blocking and the temporary suspension of the TikTok app. The AG had told the court in January that the government was ready to review the Rules. The IHC had then directed the federal government to present a report on the Rules to the court in the hearing scheduled on February 26 after consulting with stakeholders, according to a Digital Rights Monitor report. The AG office had called the Friday meeting in connection with this court order.
The consultative meeting was attended by the PFUJ Secretary General Nasir Zaidi and lawyers Haider Imtiaz, Sikandar Naeem Qazi, and Aftab Alam representing the PFUJ; the President of the Supreme Court Press Association Abdul Qayyum Siddiqui and other Supreme Court news reporters, including Matiullah Jan; lawyer Saad Amir representing journalist Tanzeela Mazhar, and representatives of Media Matters for Democracy, among others.
Deliberative process on content regulation
The AG invited the PFUJ representative Nasir Zaidi to speak at the start of the meeting. Zaidi said the PFUJ believes that the secretive way in which the ‘social media rules’ were drafted without consultation has cast a question mark over the intent behind the Rules. He said the Rules should be withdrawn immediately and a comprehensive consultative process should be launched to deliberate upon content regulation. The multi-stakeholder consultation should include representation from the PFUJ, bar councils, and national and international organisations, he said.
In response, the AG said there were two ways to look at the present situation. One way is to withdraw the Rules, he said, and the other way is to improve the existing set of Rules to guarantee fundamental rights. The AG appeared to resist the former option and said if the Rules are completely withdrawn, the Rule-making would become “an open-ended exercise”.
The AG said it would have been better if the stakeholders were consulted before the Rules were formulated. But since that did not happen, he said, there is still an opportunity to refine the Rules with consultation. The AG said he will present his recommendations to the federal government, and that “fortunately the courts are available” to protect the rights of citizens. He said that his personal opinion is that the Rules are not perfect but can be improved.
On behalf of the PFUJ, lawyer Sikandar Naeem Qazi said they had prepared a written submission to be presented to the AG. But the AG commented that if a lot of written submissions are shared by the petitioners, then “it will become really difficult to read them”, and instead insisted to go through a clause-by-clause discussion of the rules to point out which sections the petitioners felt were violative of PECA.
In the ensuing discussion, the lawyers highlighted that the restrictions on expression defined in the Rules provided excessive powers to PTA. They also said the language of the rules should be changed to compel PTA to issue prior notices, conduct hearings, and pass reasoned orders in writing in connection with content removal decisions. They said that the timelines for enforcement action defined in the Rules are not sufficient for ‘due process’ protocols. The AG requested the PTA Chairman to note down all these points.
The lawyers also raised issues about the scope of Section 37 of PECA, under whose subsection (2) the Rules were framed. But the AG stated on several occasions that a discussion on Section 37 is not within the mandate given to him by the high court, and said that the appropriate forum for a discussion on Section 37 is the Parliament.
Potential of rights’ violations
The journalists present at the meeting told the AG that Section 5 of the Rules allowed government departments and intelligence agencies to anonymously file complaints for the removal and blocking of online content. They indicated that this provision is vulnerable to misuse, and they feared it will be used to target journalists and human rights defenders online. The lawyers also argued that the language of the relevant section violates the right to fair trial, and it should be rectified to at least inform the accused about the identity of the complainant.
The participants also raised the concern that Section 5(6) of the Rules gives suo motu powers to PTA to take cognisance of unlawful online content and “pass appropriate directions”. They indicated that the meaning of appropriate directions is unclear and should be precisely defined in the Rules. The journalists also stated that the PTA should not be allowed suo motu powers, and there could instead be a body of stakeholders or a statutory council fashioned after a co-regulatory model to review such cases in order to protect independent online news and commentary.
Going beyond the law
The lawyers who spoke at the meeting also told the AG that Section 6(6), 8, and 9 are ultra vires and violate Sections 31, 37, and 38 of PECA respectively. Lawyer Saad Amir maintained that PECA only authorised PTA to block “an information” strictly defined under the law, but Section 8 of the Rules gives PTA the authority to block entire online systems or services, which is in violation of the parent Act. Similarly, the participants briefed the AG that Section 38 of PECA limited the liability of service providers, but Section 8 and 9 of the Rules called for bans, obligations, and fines on service providers and companies in excess of PECA’s provisions. The AG acknowledged these issues, and also noted that the content obligations mentioned under Section 9(2) of the Rules were vague and overbroad.
Critique on PTA
The meeting participants were critical of the role of the PTA, and argued that the telecom regulator should focus on providing better Internet and telephony services in Pakistan by regulating its telecom licensees instead of conducting online content regulation.
The participants raised the issue that the existing Rules do not specify ‘how’ PTA officers will decide whether or not a specific piece of online content is unlawful. This means that PTA might be applying some other mechanisms to arrive at its content decisions, they said.
The meeting participants requested the AG to consider the broader points regarding PECA, Section 37, and freedom of expression in drafting his recommendations to the government. During the meeting, the PTA Chairman only spoke briefly and addressed his comments directly to the AG. The Secretary MoITT listened without offering any comment throughout.
In conclusion, the AG said the meeting had helped him understand the issues and concerns about the Rules. He said the Rules required further review in consultation with a broad group of stakeholders. The AG said he would most likely offer some broad points as brief recommendations to the federal government. The high court echoed a similar sentiment on Monday in a related case, and the federal government’s position will become clear when the high court resumes hearing of the Rules petitions on February 26.