Why PECA? An argument in its favour

Pause. It is not only about restricting freedom of expression or apprehending trouble-making social-media activists and journalists, it is an all encompassing Prevention of Electronic Crimes Act. True, it is an omnibus Bill turned law in 2016 which purportedly brings into legal culpability acts of electronic crimes from financial, personal to exploitative with punishments of various types for those convicted but without sufficient definition or differentiation to safeguard working journalists in the field of information and media under one contrived ruse or another. There is a history of the state using such laws against probing journalists but greater threat to their lives has always existed outside of the law without recourse to a trial or investigation. Under any law, PECA inclusive, an assumptive violator of the canon, even when at fault, has a legal recourse which is far better than a summary trial.

As the society went digital and data-phones and internet penetrated deeper in the society, the 2016 PML-N government began what was a first attempt at harnessing waywardness through use of electronic devices. Digitisation was just about beginning in every field — social, personal, commercial, governmental — and rules were needed to regulate what was the increasingly pervading means of business and societal interaction. The social media platforms have since then only taken a life of their own beyond the perfunctory WhatsApp — Facebook, Twitter, Instagram and YouTube are the pervasive mediums of the alternate metaverse.

Businesses, ecommerce, online banking and shopping, as indeed portals as levers of governance and the news and information media indeed, have all coalesced into an online parallel meta-world. Just as laws were needed to manage and regulate society while differentiating between communal and individual rights and responsibilities this world too needs regulation and management leading to security and assurance of individual rights, freedoms and responsibilities and those that a society must undertake together to ensure a safe and secure environment of its functioning. If it be so why then this agitated push-back?

One, of course is how the state has tended to overplay its hand using regressive laws in controlling and managing the media — print initially and electronic lately — turning it into a battle for freedoms. This shrouds the crime that has inevitably accompanied such varied means of societal engagement. Personal reputations, sleaze and exploitation is at its peak as criminality overtakes freedom using it to engage in rampant exploitation of the vulnerable. These include young children who are sexually exploited, women who are maligned and assaulted and the vulnerable segments who are scared into submitting before the demands of those who harass and exploit them.

Next, as business goes digital and transactions take place online it makes the entire business and banking system vulnerable to those criminals who are out to hack their way into fraudulently embezzling and stealing money from people’s accounts. Criminals have a field day where laws are either lax or unclear, or the system and capacity to investigate is inadequate or the capability of the courts to adjudicate such crimes is limited. Just as ‘Ease of Doing Business’ is an important index for foreign investors so is the need for a clear enunciation of what constitutes crime in their fields of work and what recourse is available to them in law were a wrong seem to have been committed, especially when business is digitised.

Cyber-war isn’t a buzzword any longer. It is an accepted and recognised form of war for which nations prepare as effectively and as innovatively as for a conventional war. It is used for espionage, sabotage, incitement, fragmentation, diffraction and sowing suspicion in a system. It is also used for direct attack in either suspending or denying use of a system or a service for a period long enough for the enemy to suffer the consequences and deliver implicit gain to the employing side. It inhibits and interdicts industry, economy, supply-lines, traffic, services, banking or any amount of modern societal function which can put a city or a targeted zone out of routine functioning for hours at a stretch. It accompanies conventional war as an additional and active form of a parallel war which augments the damage with its destructive potential and causes a lag in enemy’s system of forces and functioning. These are disabling mechanisms in a war.

These need to be defined clearly in law and labeled ‘acts of war’ while annotating who all and in what all ways could be the accomplices and therefore must be dealt with accordingly. Clearly as serious a business must differentiate between what constitutes a daily freedom for the likes of the press and the media and treat those separately from the real culprits of the state and the people to avoid innocents being harnessed under war crimes. Else, this imperative may just fall through the chasm created with agitation in the name of freedoms against a broad-based formulation as it stands. It is equally true that one government after another has resorted to misappropriating legal provisions to control the media. If earlier there were declarations that could be granted or cancelled, or entire media houses nationalised — as was recently the case in Turkey — and when that became vile in popular perception ‘errant’ journalists began to be individually targeted. Some lose their lives. This was without any PECA in place.

This is what needs to be done forthwith to establish its exactitude. PECA must be divided into three separate laws: one to address the menace of exploitation of women and children using electronic means leading to what may be considered and defined as pornographic and explicit or may return financial benefit while manipulating and exploiting the vulnerable using those means, with punishments that are exemplary and deterrent with certainty and severity both.

Another law must cater to the needs of a cyber-war which must detail the constituent acts of war and its corresponding retribution. The law must explain how a citizen will assist an enemy against the state in clear terms. This being a rather newer form of warfare will need iterations to improve over time.

Those acts that constitute violation of individual’s rights or his freedoms by deliberate acts aimed at maligning with false accusation or deliberate misreporting, or hurt one’s reputation and dignity with false or fake institution of news, report or innuendo should be dealt with under the existing laws for defamation and libel — the civilised recourse against the errant and the deviant but without the draconian resort to apprehend, incarcerate or physically assault an individual’s right to function. These laws need to be strengthened and where proven must only entail heavy financial retribution to curb resort to such fictitious story-telling. PECA needs to be better defined and refined, thus, and remains our best bet in an era of technology pervasion.

Published in The Express Tribune, March 4^th, 2022.

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