Pakistan tightens restrictions on social media giants

Ahmed Abbas

Ahmed Abbas, Islamabad

info@ahmedabbasco.com

Social media giants including United States-based Facebook, WhatsApp, Twitter and China’s TikTok have taken something of a beating in the Asia and the Pacific region recently, as countries from Australia to Turkey have geared up to tighten their regulatory control over online content and, as a result, stifle free speech. In line with the regional trends, Pakistan has recently hopped on the bandwagon against freedom of expression and unveiled its brand new social media rules namely, ‘Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules 2021’, known as RBUOC Rules.

Before we decipher the RBUOC Rules and assess their impact on online free speech and measure ramifications of the new regulatory regime on ease-of-doing business, it is helpful to understand the meaning of the expression ‘free speech’.

Speech, to begin with, is about saying the right thing reasonably in a right manner and at the right time. ‘Free speech’, on the other hand, is about speaking our mind, sharing our unique perspective, showcasing and expressing our unique skill-set and innate talents and a freedom just to be ourselves. Free speech is about political empowerment to keep our rulers in check and it is also about personal autonomy to keep ourselves in check. It is because autonomy, be it personal or political, come with a certain baggage of responsibility towards others. It’s our right to disagree with others but it is also a responsibility to give respectful hearing to those who disagree with us and make sure that others’ self-respect, feelings and sentiments are not hurt.

It is in spite of Article 19 of the United Nations' (UN) Universal Declaration of Human Rights which guarantees people’s right to opinion and expression which right includes freedom to hold opinions without any interference, Facebook India Policy executive, Ankhi Das, had to resign in October 2021 for her failure to address hate speech on the platform.[1] Despite the UN Declaration on Internet Free Speech, which recognises open nature of internet as catalyst for rapid technology-led economic development and socio-economic transformation, Twitter lost its liability protection over user-generated content in a court ruling following a public spat with the Indian government. India’s new social media rules further require tech giants to disclose the ‘originator’ of objectionable content.[2] It is despite International Covenant on Civil and Political Rights (ICCPR), Turkey pressed ahead in requiring social media companies with over one million daily users to appoint a legal representative to answer questions from the executive and judicial branch of the government and imposed data localisation regulations with further restriction on networks’ traffic bandwidths.[3]

Autocratic governments such as China and Saudi Arabia are even aiming for the absolute cyber surveillance of their citizens by compiling people’s social media connections, buying histories and preferences, location data etc.[4]

Pakistan’s RBUOC Rules 2021 are no surprise in the context of country being viewed as a security state with pre-eminent geo-strategic location. The outgoing decade witnessed surge of terrorism in Pakistan, coinciding with exponential growth in the use of smart technologies by citizens. WhatsApp was the preferred mode of communication for anti-state elements to bring about chaos in the country. This necessitated security agencies to gain access into smart phone devices to track and trace incidents of terrorism, individuals and organisations involved in such activities. The advent of TikTok in Pakistan has also offered both opportunities and challenges. On the one hand, the platform allowed individuals to showcase their skills including do-it-yourself dance numbers, lip-syncing, acting, modelling, singing, public-speaking and similar performances to earn small amounts of money and supporting the growth of the digital economy. On the other, the platform has created issues of ‘morality and decency’ in a predominantly Muslim society. The telecoms watchdog, the Pakistan Telecommunication Authority (PTA), in October 2020 had to take down the social media app after receiving several complaints from the general public which was later restored following High Court intervention.[5] Likewise Twitter came under severe scrutiny when the incumbent Pakistan Tehreek-e-Insaf government faced a severe public backlash, offensive bad-mouthing and political attacks on the microblogging website, leading the government to tighten defamation laws by introducing a Presidential Ordinance to curb fake news.[6]

Given this local as well as regional context, on 13 October 2021, the Government of Pakistan, using its mandate under section 37 of the Prevention of Electronic Crimes Act 2016, rolled-out the RBUOC Rules. These Rules mandate government to take off-air, within 48 hours of the complaint received, any online content which is likely to jeopardise defence and security of the country, public order, decency and morality, glory of Islam and any material contemptuous to the dignity of superior courts.[7] The Rules requires ‘significant social media companies’ to make available online ‘Community Guidelines’ clearly setting-out guidance/information for users not to host, display, upload, modify, publish, transmit or share any online content in violation of the local laws.[8] The service providers and significant social media companies are further required to furnish any data, content or sub-content contained on any information system in a decrypted and comprehensible form to investigation authorities.[9]

The Rules makes it compulsory for service providers and social media giants to: register with the PTA within three months of the Rules coming into force; appoint an authorised representative and a dedicated grievance officer based in Pakistan to address questions and complaints with regard to online content; establish a physical office located in Islamabad and employ user data privacy and data localisation measures in accordance with applicable local laws; and employ suitable content moderation and AI methods in line with local laws.[10]

In case of any contravention or failure to observe Rules, the PTA is empowered to downgrade the service of the service provider or social media company, block the entire online information system, or impose penalty up to PKR 500m (approximately $2.4m).[11] However, any person aggrieved of the decision/order of PTA may file a review application before the appellate forum within the administrative domain of PTA in 30 days of passing of such adverse decision/order.[12]

Although Pakistan is signatory to seven core international human rights instruments including UNDHR and has implemented its international human rights mandate by giving constitutional cover to almost 23 civil rights[13] to-date including ‘freedom of expression’. However, Article 19 of the Constitution of Pakistan 1973, while guaranteeing freedom of expression, provides a caveat ‘subject to reasonable restriction imposed by law’, which implies even if the UNDHR and UN Declaration on Internet Free Speech are adopted in local legislation, the Constitution which is supreme law of the land does not permit a free expression be it online or offline to the extent online content jeopardises seven categories as mentioned under Rule 3 of RBOUC Rules, namely:

1. glory of Islam;
2. security;
3. integrity or defence of Pakistan;
4. public order;
5. decency;
6. morality; and
7. contempt of court.

Although Pakistan has the constitutional prerogative to protect certain state interests and keep intact social fabric of the society being torn asunder under the banner of free speech by creating suitable statutory exception to the universally guaranteed right to free speech, members of academic and legal community term the above seven categories as too vague or general for social media companies to draw guidance with a view to enacting and promulgating their Community Guidelines. Furthermore, in sharp contrast to similar regulations on removal and blocking of online content, the executive branch of the government in Turkey is subordinate to court’s final ruling on the subject, whereas Pakistan’s PTA has the final say in dealing with complaint procedure, appeals and imposition of penalty on the social media companies. In addition, the requirement that service providers and social media companies are required to employ AI methods for content moderation, adhere to local data protection and data localisation laws seems out-of-place and premature as the country currently has no such laws in place. The data protection legislation is still at the debate/bill stage in parliament and has not been enacted into law. It seems that the incumbent government rushed into passing the RBUOC Rules without first enacting the necessary allied legislation on data localisation, content moderation and personal data privacy and protection laws. The government needs to put the horse before the cart and not otherwise to bring balance, fairness and maturity into the subject rules.

Within two months of their launch, RBUOC Rules 2021 were challenged before the Islamabad High Court (IHC) as in contravention of people’s rights to livelihood, freedom of trade and profession guaranteed under articles 9 and 18 of the Constitution of Pakistan, 1973. Since then the constitutional courts’ reaction to online ‘freedom of expression’ has swayed from one extreme to the other. The Chief Judge of IHC, Justice Athar Minallah, while deciding the challenge to RBUOC Rules observed: ‘These [Rules] would discourage criticism and adversely affect accountability in the country.’[14] On the other hand, the Lahore High Court, while deciding writ petitions against removal of objectionable content having potential to offend religious sensitivities, observed: ‘[…] freedom of expression, speech, tolerance and respect go hand in hand.’[15] Similarly, the Peshawar High Court, ruled to lift the ban on TikTok with direction to PTA to have in place mechanism to filter objectionable online material.

Most recently, the ruling party’s latest bid to ramp-up defamation laws in the country with a view to discouraging ‘fake news/misinformation’ was challenged before the IHC and the Court consequently referred the matter back to parliament for more-in-depth debate on all aspects involved in the hurriedly promulgated presidential ordinance.[16]

The social media companies, on the other hand, struggle to operate in a tight regulatory environment. Jeff Paine, managing director of Asia Internet Coalition (AIC), lamented the latest and final version of the RBUOC Rules, terming the Rules as harming the culture of ease-of-doing-business in the country. The AIC stakeholders at one stage even threatened to end their services in the country but later backtracked from the extreme position on assurance by the Government of Pakistan to undertake broad-based consultation. The reaction from tech giants is understandable, yet they also owe a responsibility towards their users so that their customer base is not exposed to misinformation and other potential online harms including cyber bullying, racism, hate speech, terrorism and defamation. They need to put in place ‘circuit breakers’ to deter viral spread of fake news and employ other AI methods for content moderation.

The trade-off between free speech and online harm is tough and intriguing. Ambassador David Pressman, Co-Chair of IBA Human Rights Law Committee, rightly remarked: ‘All companies operating in high-risk environments share a responsibility to advance justice, and should be held accountable where they are complicit in abuses.’