01/18/2022

Are The Amended Social Media Rules Also Unconstitutional? Islamabad High Court Raises The Question

January 6, 2022 – Do the amended Social Media Rules to regulate social networking sites, drafted by the Pakistan Telecommunication Authority (PTA) comply with the constitution and the law? The Islamabad High Court (IHC) has directed the amicus curiae  to submit their briefs on the  question.

Chief Justice Athar Minallah on Thursday heard the petitions challenging the Social Media Rules 2020. Advocate Imaan Mizaari, who was representing the petitioners, and the advisor to the Court Advocate Usman Warraich, appeared in front of IHC to present the arguments.

Usman Warraich told the Court that he had prepared some questions regarding Social Media Rules but it would be better to take the opinion of the digital experts whom the Court had appointed as amicus. The Court then directed the digital experts to submit their briefs. The High Court has appointed digital experts Sadaf Khan, Nighat Dad, Farieha Aziz, and Rafay Baloch as amici on the issue.

During the hearing, Chief Justice Athar Minallah remarked that there is only one fundamental question before the Court regarding the Social Media Rules, which is whether the Rules are in violation of Article 19 and 19-A of the Constitution of Pakistan. Article 19 and 19-A of the Constitution grants the right to freedom of expression and freedom of the press to the citizens of Pakistan, and various stakeholders have, in their petitions, raised that only Rules are in violation of these rights as protected under the Constitution, but also are ultra vires to the parent Act, i.e. Prevention of Electronic Crimes Act 2016. The Court expects the amici to bring answers to these questions in the next hearing on February 3.

Last year, with PTA’s ban on the social media application TikTok, the IHC had asked the regulatory authority to justify their decision. The Court had directed to take this matter to the Cabinet but the ban was still not lifted. The Court had asked questions regarding the basis on which these bans are imposed, restricting the business opportunities of the middle and lower income communities using the app. Another hearing was held on November 10, 2021, where the Court posed questions to PTA and the Attorney General of Pakistan regarding the amendments to the Social Media Rules and ban on TikTok. The Court specifically asked what section(s) of the PECA gives authority to the PTA to block social media platforms. It highlighted that powers to the PTA only include blocking unlawful content under section 37 of PECA, and the Authority cannot block entire platforms. During the hearing in November last year, journalist Hamid Mir pointed out that social media experts did send in suggestions for the Social Media Rules but their voices were not heard by the government and the Attorney General.

Later, in the November 22 hearing on the issue, Chief Justice Athar Minallah had remarked that the Social Media Rules will be evaluated against international practices to see whether the Rules are consistent with global standards or not. The chief justice also remarked that while the world is heading towards advancement, Pakistan cannot solve issues by imposing restrictions. The Chief Justice asked the social media experts to evaluate the Social Media Rules and thanked the PTA for complying with the law as it lifted the ban on TikTok.

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