Islamabad, 19 November 2020 — The Internet Service Providers Association of Pakistan (ISPAK) is considering legal action against the recently notified rules for online content regulation under the Prevention of Electronic Crimes Act (PECA).
“We’re discussing (our strategy) with other operators,” the ISPAK Convener Wahaj us Siraj told Digital Rights Monitor. “We may challenge these rules in (the) High Court as they increase difficulty of doing business and add unnecessary and exorbitant liabilities and compliance requirements on the service providers.”
The new government-approved version of the rules was made public on Wednesday when the Ministry of Information Technology and Telecommunication uploaded a notification document to its website, ending weeks of secrecy that surrounded the text of the rules.
The Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules 2020 impose several obligations on social media companies and Internet Service Providers (ISPs). These obligations include blocking or removal of access to online content deemed “unlawful” by the Pakistan Telecommunication Authority (PTA) within 24 hours or, in case of emergency, within six hours.
According to the new rules, Mr. Siraj said, the service providers can be punished with fines up to Rs. 500 million if they don’t meet the requirements. PTA can also issue directions to block an entire online system or individual services in case of non-compliance. Such penalties appear to contradict a key section of PECA — the anti cyber crimes law enacted by Parliament in 2016.
“Section 38 of PECA provided a comprehensive limitation of liability to intermediary service providers,” Mr. Siraj said. “The rules effectively negate these protections.”
The PECA section to which Mr. Siraj referred basically protects service providers from fines and imprisonment if someone uses their systems to break the law without their knowledge or participation. Despite these protections, the rules now compel not just social media companies but also service providers to keep a proactive watch on online user activity to prevent blasphemy, cultural insensitivity, harm to minors, and threats to national security, among other issues.
“(Section) 9(3) (of the new rules) requires us to monitor and identify online content,” Mr. Siraj said. “It’s contradictory to Section 38(5) of PECA where no service provider is required to proactively monitor any content passing through its network.”
The rules, which were needed to operationalise online content regulation under PECA, originally surfaced under a different title in February. But that set of rules was suspended after it drew flak for human rights infringements. The government then formed a committee to consult with civil society, media, and technology companies. However, the consultations were boycotted by local civil society organisations which claimed the consultative process was sham, insincere, and non-transparent because the government did not completely withdraw the rules.
Mr. Siraj said the ISPs and telecom operators were never invited to the PTA consultations on content regulation.
“It appears that ‘Service Providers’ have been unnecessarily dragged in these rules as we don’t provide content,” he said. “We’re only a conduit of content provided by third parties on which we don’t have any control, nor we have (the) capability to check this content.”
Many of the concerns with the set of rules issued in February remain in the current version and the local service providers are not the only ones upset by it. The technology industry is also alarmed.
Rules “Not Welcome”
Mubariz Siddiqui, the general counsel of the venture capital firm Sarmayacar, said the arbitrary way in which the rules have been enforced gives a very clear signal to the tech sector.
“Do as the regulator says, otherwise we will shut you down,” Mr. Siddiqui said, explaining the signal. “This will not give confidence to any entrepreneur or to any investor who wants to invest in Pakistan.”
He said the rules are “not welcome” from the point of view of foreign venture capital firms.
“Venture capital investments are risky, and they are the riskiest in Pakistan because (venture capital funding) has literally just started here,” Mr. Siddiqui said. “Uncertain, lopsided, or draconian online regulation will only discourage investment.”
Human rights defenders in Pakistan have long called out the arbitrary powers of online content regulation granted to PTA under PECA Section 37. Mr. Siddiqui said the rules have now further broadened the scope of those powers without any checks.
The first thing for online content regulation policy, he said, should be to separate ‘content’ from ‘platforms’. Platforms will not create a separate app for Pakistan so that should be kept in mind before considering to ban an app, he said.
Secondly, the language of content restrictions should be made clear and intentional so people can distinguish between what is allowed and what is not, Mr. Siddiqui said.
His comments echoed the stance of human rights defenders who, for example, have in the past criticised the use of “decency” and “morality” as broad and vague reasons for restricting online expression and artistic freedom. The PTA recently banned five dating apps and temporarily blocked TikTok on the grounds of indecent and immoral content.
Mr. Siddiqui said the regulator would be well-advised to avoid a disproportionate response where an entire platform is blocked due to a relatively small number of content-specific complaints.
He said it would have been nicer to see in the rules “detailed limitations around the powers to be exercised” by PTA for content regulation as well as procedures that could guide officers to make reasonable decisions about online content.
“There should be a stringent process laid out (in the rules) which the regulator must go through when deciding on content restrictions,” Mr. Siddiqui said. “There should be public hearings where people can also engage and advise, a detailed test for enforcement of restrictions, and detailed reasoning should be provided for the orders (to restrict content).”
For now, the so-called social media rules appear to lack such instructions.
“Discretion (of authorities over online content restrictions) needs to be curbed,” Mr. Siddiqui said. “Instead all we are seeing is businesses will be curbed.”
