Islamabad — Since January 2019, the Government of Pakistan and its media regulator have attempted to introduce four separate policy or legal proposals that could potentially restrict the freedom of expression in the country, including the work of independent journalists.
In January 2019, the federal cabinet approved the idea of a converged media regulator, which would govern broadcast, print, and online media. The idea was first floated by the former information minister Fawad Chaudhry in October 2018. Mr. Chaudhry’s successor, Firdous Ashiq Awan, revealed the government’s plans to set up special media courts or “media tribunals” in September to hear complaints lodged against news organisations.
The private broadcast regulator opened a consultation for a licensing and regulation regime for Web TV and Over The Top content services in January. The scheme was struck down by a Senate committee on human rights that insisted the broadcast regulator did not have the mandate to supervise Internet services. More recently, the federal cabinet approved new rules to regulate online content. The rules were suspended before implementation could begin, after protests from the local civil society and international Internet companies.
While none of the four measures came to fruition, the consistent attempts indicate perhaps the government’s policy vision to gain absolute control of the online expression of its citizens.
On the occasion of World Press Freedom Day 2020, Digital Rights Monitor spoke with international experts to understand the implications such measures could have for press freedom and the public’s right to freedom of expression in Pakistan.
Internet Regulation and Free Speech
Steven Butler, the Asia Program Coordinator for the Committee to Protect Journalists, said the internet and social media are relatively new means of expression for journalists and non-journalists alike.
“For States that wish to control the spread of information, it’s natural that legislative and regulatory measures would be taken to address this, as we are seeing in Pakistan,” Mr. Butler said. “I doubt that authorities in Pakistan are terribly concerned about establishing legal cover so much as creating more systematic means to exercise control and limit what they see as the flow of damaging information.”
He said the regulations are likely to provide authorities with more efficient means of control.
“Journalists have very little legal defence because the laws are drafted so broadly and vaguely that they could be stretched to fit any situation.” Gayatri Khandhadai, APC
David Kaye, the United Nations Special Rapporteur on Freedom of Expression, and Michel Forst, the former Special Rapporteur on the Situation of Human Rights Defenders, co-wrote a letter to the Government of Pakistan in March to express concerns about the Citizens Protection (Against Online Harm) Rules 2020.
In their letter, Mr. Kaye and Mr. Forst indicated to the government that the rules were not sufficiently clear for users to predict with confidence what content is subject to removal. In addition, the rules may potentially lead to prior censorship of content and arbitrary decision-making. It was also pointed out that draft rules did not provide any procedural safeguards against abuse.
The local civil society representatives had raised similar concerns about the rules in February.
“I think the civil society, lawyers, and Internet users should be concerned mainly because people see a track record of the government seeking to use law in order to suppress certain kinds of speech,” Mr. Kaye told Digital Rights Monitor. “I think it is completely fair for people to be raising questions.”
The concerns may take on added significance in the context of the current coronavirus pandemic.
“At a moment when you have a public health crisis, people are less able to monitor what the government is doing,” Mr. Kaye, who is also a Professor of Law at the University of California, Irvine, said. “The government should be more transparent and keep channels of communication open.”
Mr. Kaye said it is clear there are harms that are created online that some of the platforms are hosting.
“When you have these kinds of harms, it is really important for the government to be very, very clear of the nature of those harms, to be specific, and not to give (itself) an open-ended discretion to limit expression on the platforms,” he said.
He said one of the big concerns he had with the Pakistani government’s Citizens Protection (Against Online Harm) Rules 2020 was related to the role of the ‘national coordinator’.
“I remember seeing the rules provided this general competence of action to the national coordinator to tell social media companies to remove content,” Mr. Kaye said. “When you have that kind of power in a particular government authority and you have rules that are relatively vague, it really risks free speech in the country.”
He said such a provision would leave citizens uncertain about what kind of content is legitimate and what is not.
“The best antidote to untruthful information is the truth,” Steven Butler, the Committee to Protect Journalists
Gayatri Khandhadai, the Asia Policy Regional Coordinator of the Association for Progressive Communications (APC), said the notion of enacting laws from a protectionist perspective against ‘harm’ is in itself the starting point of the problem.
“For instance, hate speech online is often discussed in the context of bringing in new regulations,” Ms. Khandhadai said. “This is an unnecessary move, especially since most States have some version of laws or provisions to tackle hate speech. Secondly, laws are not going to solve the issue of hatred. It requires States to make hard commitments including refraining from propagating hate.”
She said governments need to refrain from “knee jerk law making” and instead adopt a rights-based approach to enacting laws.
“In most cases, offline laws are anyway being used to address online interactions — especially in relation to freedom of expression,” Ms. Khandhadai said. “For instance, in Pakistan, sedition, blasphemy, and defamation laws from penal codes are used in tandem with the newer Internet-specific laws.”
“Unshackling Expression”, a 2017 report prepared by APC, provides an in-depth look at the variety of offline and online laws and regulations that criminalise freedom of expression in Pakistan. The Pakistan chapter of the report is authored by Sadaf Khan, the co-founder of Media Matters for Democracy, which manages the Digital Rights Monitor website.
Ms. Khandadhai said the new laws about the Internet sometimes negate well-established jurisprudence on freedoms developed over decades.
“(The news laws bring) in arbitrary restrictions and impose greater penalties for online activities as against comparable offline interactions,” she said. “We have to see how we can ensure that online laws are in consonance with offline laws but also respect important jurisprudence that has been developed over time.”
Ms. Khandhadai stressed the need for comparative jurisprudence in the South Asian region to learn from good examples about legal protections for the online expression of journalists and citizens.
Countries around the world are looking at ways to rein in digital disinformation. The now-suspended Citizens Protection (Against Online Harm) Rules 2020 also intended the Pakistani government authority to get “fake news” content removed from social media.
Mr. Butler said false or inflammatory information spread on the Internet is a reasonable thing for governments to be concerned about.
“However, as more and more news distribution moves online, regulating social media by the government provides an unfortunately convenient tool to suppress the flow of critical comments or news reports that are embarrassing to the government,” he said. “This is by far the biggest threat faced by a democratic society.”
“First of all, the restriction (against false information) should meet the standard of legality. It has to be clear.” David Kaye, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
He said journalists must be allowed to do their job of reporting the news, even embarrassing news.
“The best antidote to untruthful information is the truth,” Mr. Butler said.
Mr. Kaye said it’s not just a Pakistani problem but a global issue that governments are using the notion of “fake news” or false information in a vague manner to suppress freedom of expression, news reporting, and the sharing of criticism of the government.
About the fake news provision in Pakistan’s social media rules, he said it does not meet the concerns expressed in international human rights law.
“First of all, the restriction (against false information) should meet the standard of legality,” Mr. Kaye said. “It has to be clear.”
The Pakistani government’s intent to curb online false information does not come across as clear about what content would be interpreted as false and how.
“It is exacerbated when you have an authority like the national coordinator that has the power to make demands on companies to take down content,” Mr. Kaye said. “This approach is really problematic.”
He said it is one thing for the government to say it has specific concerns and another to have a general rule against disinformation.
“For example, for the coronavirus, you could say there is a concern about fraudulent medical cures (being shared online),” Mr. Kaye said. “You can use your existing laws related to consumer protections and fraud to deal with this kind of false information.”
But to have a generic restriction on false information gives too much authority to the government over free expression, he said.
Ms. Khandhadai said a new wave of attacks that journalists are facing is in relation to misinformation or “fake news” laws. Governments are also starting to use the epidemic acts to crack down upon journalists for online expression, she said.
She said journalists have very little legal defence because the laws are drafted so broadly and vaguely that they could be stretched to fit any situation. This is a problem with the Prevention of Electronic Crimes Act (PECA) in Pakistan and similar laws in other countries of South Asia, Ms. Khandhadai said.
The simple fact, Mr. Butler said, is that governments cannot be trusted as objective arbiters of what is true and what is disinformation.
“The temptation to exploit these powers for sectarian or political purposes is too great,” he said. “Certainly the new and proposed regulations increase the potential vulnerabilities faced by Pakistan’s journalists and are likely to reinforce the unfortunate trend toward self-censorship.”
Mr. Kaye said there are some real concerns about Pakistan’s (PECA) law that he has shared with the government over the years. There were some positive aspects, however, to the government’s attitude towards free expression, he said.
“It’s good to notice that the Government of Pakistan has engaged with my mandate,” Mr. Kaye said. “You know, it’s not all gloom or doom.”