Free speech and defamation — future of NCCIA in digital age

Article 19 of the Constitution of the Islamic Republic of Pakistan provides that “Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam, or the integrity, security or defense of Pakistan or any part thereof, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, or incitement to an offence.”

This provision is a cornerstone of democratic society, ensuring that individuals can freely express their opinions, criticise government policies, and engage in open dialogue. However, this freedom is not absolute and must be balanced against other societal needs, including the protection of reputation and the prevention of harm caused by defamatory statements. Prevention of Electronic Crimes Act (PECA) 2016 addresses various forms of cybercrime, including defamation, which involves the intentional publication of false information that harms another person’s reputation. Section 20 of PECA explains that “Whoever intentionally and publicly exhibits or displays or transmits any information through any information system that he knows to be false and intimidates or harms the reputation or privacy of a natural person shall be punished with imprisonment for a term which may extend to three years or with fine which may extend to one million rupees or with both.”

The fine line between protected free speech and punishable defamation is essentially drawn at the point where an individual’s expression shifts from being a truthful or honest opinion to a malicious falsehood intended to harm another person’s reputation. Thus, while Article 19 protects honest and truthful expressions, PECA imposes penalties to deter and address the intentional and public dissemination of false information via electronic platforms. This balance ensures that the right to free expression does not become a tool for character assassination or spreading untruths, maintaining a just and respectful discourse in society. The unbridled use of digital platforms has tarnished Pakistan’s international image and created an atmosphere of mistrust among e-commerce businesses, largely due to the perceived lack of effective digital governance instruments in the country. Without clear guidelines and enforcement mechanisms, the digital economy, which has the potential to contribute trillions to Pakistan’s GDP, is at risk.

The National Cyber Crime Investigation Agency (NCCIA), still in its nascent stage, has a critical role to play in bridging this gap. Rather than merely taking reactive measures against defamation, the agency must proactively work to raise awareness about the fine line between constitutionally protected freedom of expression and unlawful defamation. It is essential for NCCIA to educate the public, digital content creators, and businesses on how expression can turn into defamation and the legal ramifications of such actions. These include launching comprehensive public awareness campaigns targeting diverse demographics through workshops, seminars, and informational materials. Collaborating with educational institutions to integrate digital literacy into the curriculum and engaging with community leaders and influencers can amplify the message of responsible online behaviour.

For NCCIA to gain the trust of e-commerce businesses and the broader public, it must demonstrate that digital governance will not usurp their rights but will instead provide a secure and trustworthy online environment. Clear communication about the scope and limits of digital governance is crucial. NCCIA should outline how freedom of expression, as guaranteed under Article 19, is respected while simultaneously enforcing measures against defamatory content. Moreover, NCCIA’s mandate should extend to various aspects of digital governance, including the regulation of Internet Access Service Providers (IASPs) and Internet Content Providers (ICPs). By setting standards for website registration and ensuring compliance with these standards, NCCIA can enhance the accountability of digital content. Addressing misinformation, disinformation, and mal-information is another critical area. NCCIA should develop strategies to identify and mitigate the spread of false information that can harm individuals, businesses, and society at large. Issuing takedown notices is a powerful tool for NCCIA, but it must be used judiciously. The criteria for takedown notices should be transparent, and there should be a clear process for contesting these notices to avoid any misuse or overreach. Ensuring that these processes are fair and accessible will help maintain public trust and support for digital governance initiatives.

The NCCIA has a pivotal role in shaping the future of digital governance in Pakistan. By fostering an environment that respects freedom of expression while combating defamation and other cybercrimes, the agency can help build a secure and prosperous digital economy. Drawing on international examples, the NCCIA can implement best practices tailored to Pakistan’s unique context. Effective communication and proactive measures will be key to ensuring that digital governance supports, rather than hinders, the rights of individuals and the growth of e-commerce. Through these efforts, Pakistan can position itself as a leader in the digital age, attracting investment and fostering innovation in its digital economy.

Published in The Express Tribune, June 3^rd, 2024.

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