Prevention of Electronic Crimes Bill: Has Pakistan managed to draw the line?

Govt’s attempt to curb hate speech, terrorism a step closer to curbing free speech


Bilal Memon April 24, 2016
PHOTO: AFP

KARACHI:


For long the Pakistani government has been trying to curb hate speech and tackle the issue of terrorism that just doesn’t seek refuge, but finds a way to grow behind a digital veil, in the unregulated cyberspace.


The Prevention of Electronic Crimes Bill (PECB) was meant to tackle not just the menace of terrorism, but deter online crimes that currently go on without much scrutiny.

Over a year after it was presented, when it was criticised for being vague and draconian and rightly so, it has now managed to clear the National Assembly. To be fair, it wasn’t meant to crash into that hurdle.

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However, it will now be laid before the Senate where expectations are that a more meaningful discussion will take place.

On its part, the Ministry of Information Technology – the body that spearheaded the piece of legislation – stated that various issues needed to be addressed.

“The growing use of the internet needed regulation,” Saghir Anwar Wattoo, director public relations and spokesman for the IT ministry, told The Express Tribune. “The National Action Plan (the joint effort of the military and civilian powerhouses against terrorism) agenda needed to be supported by this piece of legislation.

“Additionally, issues such as child pornography, (circulation of) obscene videos needed to be tackled. The prevailing laws do not have the muscle to address these challenges.”

Wattoo reiterated what Minister of State for Information Technology Anusha Rahman says about the bill. “Someone who is protected by rights offline needed to be protected online as well.”

Drawing the line

But many a time – in its jest to regulate – governments have been found guilty of controlling to the point of suffocating.

Critics of the PECB certainly feel so. Even after several amendments and removal of vague terms and draconian clauses – that, at one point, moved for the criminalisation of any service provider that saw its premises being used before its liability was limited – there are still some issues.

For example, the clause on “glorification of an offence and hate speech” has incited much debate. The clause states that “whoever prepares or disseminates information, through any information system or device, where the commission or threat is with the intent to – a) glorify an offence or the person accused or convicted of a crime and support terrorism or activities of proscribed organizations and b) advance religious, ethnic or sectarian hatred” shall be punished with imprisonment up to five years or with a fine of Rs10 million or both.

Activists such as Farieha Aziz – the director of Bolo Bhi, a digital rights and advocacy group – feel the inclusion of the word “accused” is taking it too far. “You’re reversing the scales of justice,” said Aziz. “Even the word convicted is problematic. What about people who are wrongly convicted and their sentences are appealed in higher courts? In some cases, public pressure is applied – would that be viewed as glorifying a convict?

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“Sure, these are tied to terrorism. But what about those i-11 Katchi Abadi protesters who were charged under the ATA (anti-terrorism act) or more recently the workers in Okara. They were accused and held on ‘terrorism’ charges. Those campaigning for their release and supporting their right to protest or congregate would be glorifying them or their activities?”

What the government says

Justice (retd) Sardar Raza, federal secretary of the law ministry that would vet and proof the bill, says the point is to avoid a media trial and nip the issue in the bud. “How many cases are tried in the media where an offence is magnified and the intention is to influence the proceedings before they even begin?” asked the official. “This is a way to curb the media trial on some crimes, where the accused or convicted garner emotional sympathy even though they are undergoing a trial.”



His point was echoed by Awais Leghari, the PML-N lawmaker and a member of the National Assembly standing committee that presented its report on the PECB to the IT ministry.

“Many a times there are people out there who are being glorified when they are known terrorists – people with a violent criminal history – but they are yet to be convicted,” said Leghari. “No court of law has yet convicted them and probably never will. There needs to be a mechanism to curb their glorification on social media.”

While Leghari admitted that there existed scope for exploitation, the lawmaker said the intervention of the court – within 24 hours – would deter the misuse of laws.

“Yes, there is scope. But the fact is that in this age of information technology where social media, and the media industry in general, has its eyes and ears everywhere, would it really be possible for an investigative agency to exploit the laws?

“Even if they (authorised officers) make a mistake, there are eyes and ears out there who would ensure the right thing is done within 24 hours. All we need are judges that can understand the cybercrime laws and act within its scope.”

The confidentiality clause

One move to insert a new clause has caught the eye of some observers. Barrister Zahid Jamil, who has helped several countries draft their cybercrime bills, said the latest addition of the clause on confidentiality of information raises some eyebrows.

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It states that any person including a service provider … or an authorised officer who has secured access to any material or data containing personal information about another person, discloses such material to any other person … without the consent of the person concerned … with the intent to cause or knowing that he is likely to cause harm … or compromise confidentiality of such material or data … shall be punished.

Although Jamil agreed that the intent could be to protect data obtained during an investigation, the clause could go beyond its scope into the prevailing issue of Panama Papers. “The effect of these amended provisions and other sections will be to criminalise the Panama papers, making them inadmissible,” said Jamil. “And those who collaborated or even republished or aided their publicity to likely be prosecuted for committing a cybercrime.”

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Aziz agreed that the new clause could be a way to protect data acquired during an investigation. “Ideally, this should be dealt with separate legislation that should exist for data protection, privacy and whistleblower protection.

“If tomorrow, the issue of Panama leaks arises locally, you have another law to go to versus a clause that’s part of a criminal law that may be used to prevent information even though it is intended to provide protection to people against misuse.”

Aziz believed the language of the clause could be fixed so as to not include citizens, journalists and whistleblowers.

Leghari echoed a similar view when he said that a data protection act needs to immediately follow the PECB. “Data seized during an investigation needs to be protected and an act should follow this piece of legislation.”

The legal side

Ameena Suhail, member legal at the IT ministry, rejected the claims that the new clause could target investigative journalists including the ones looking into the Panama Papers.

“The explanation establishes that performance of investigative journalism does not in any way come under the definition of persons included in clause 38 (on confidentiality),” said Suhail. “The intent of journalists is not to act in breach of a lawful contract or to cause wrongful loss or gain to a person.  This is a move to protect personal data/information in the absence of a strict personal protection regime in the country.”

On some other clauses that have irked the online community, which argues the freedom of expression and free speech, Suhail stressed that the purpose is to discourage spread of false accusations which intimidate or harm a person in the absence of a “social media regulator”.

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“Advocates of free speech need to be reminded that our freedom exists until it starts impinging upon other fellow citizens’ freedoms. Right to privacy is a universal fundamental right.”

Barrister Jamil, on the other hand, argues that foreign states and online providers – especially those in democratic states – cooperate in cases where laws of the country requesting assistance are consistent with international best practices and human rights.

“The language of the provisions in this Bill is contrary to this criteria, technically incorrect, vague and so open to abuse that it is an obstacle to exchange of digital evidence in cyber or other crimes including terrorism,” added Jamil, stressing that the international business community would think twice before conducting business with Pakistan once this Bill, in its current form, becomes a law.

“International companies don’t look at specific clauses. They look at the law as a whole and if it is deemed not at par with international best practices, they tend to stay away.”

The PECB has gone through several obstacles and seen numerous modifications. However, the government, which started working on the Bill around nine years ago, is now closer than ever to implementation.

Hoping that it will strike a balance between curbing terrorism, hate speech and other cybercrimes, while affording liberties under a democratic government is all Pakistanis can do for the moment.

the writer is the business editor

Published in The Express Tribune, April 25th,  2016.

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