The Islamabad High Court (IHC) heard the writ petition filed against the banning of TikTok, that was clubbed with a contempt petition filed against Pakistan Telecommunication Authority (PTA) by the Awami Workers Party (AWP), for blocking their website ahead of the general elections in 2018. The case concluded last year in September when the PTA was directed to frame Rules under Section 37 of the Prevention of Electronic Crimes Act (PECA), 2016 within 90 days of the Order that the Authority failed to comply with.
In the hearing on November 2, the court asked the PTA to present a notified copy of the Rules, published in the gazette to the court, which will reconvene in 4 weeks from the date of hearing.
The petitions are now concerned with broader issues regarding misuse of PECA by unbridled discretion of PTA in the blocking and removal of online content, and the lack of any formal procedure to determine which type of content should be taken down or blocked.
In view of the ambiguous justifications of immorality and indecency by PTA to block apps and websites, the Court remarked that with PTA’s logic, the entire motorway should be shut down because an unfortunate incident of rape took place on it.
During the hearing, PTA’s lawyers told the court that the rules under section 37 had been drafted by them, had received approval from the federal government and had been sent to the Printing Press Corporation to be published in the gazette.
It is important to note that so far the rules have not been made public or published in the gazette, and speaking to the Digital Rights Monitor, the PTA has previously denied having a copy of the rules. It is unclear whether the rules are effective or not at this point.
Haider Imtiaz, the lawyer for AWP, said that the rules cannot be considered effective or notified till they are published in the gazette. He said, “The argument is simple, you cannot implement a rule till the public is made aware of them and that happens once they are publicly published in the gazette.”
He also added that the PTA cannot present the rules in court till they are published in the gazette.
This is the second version of the rules, earlier they were called Citizen’s Protection (Against Online Harm), 2020, also known as the Social Media Rules. After civil society and the Asia Internet Coalition (AIC), publicly called out the rules for the lack of transparency and a consultative procedure with stakeholders, the Prime Minister Imran Khan asked for the suspension of the Rules and directed the government to initiate a consultation process with stakeholders. The civil society representatives boycotted the consultation process unless the Rules were denotified by the Cabinet.
There was similar confusion about the status of the previous rules drafted that were acquired through sources, and were challenged in the Islamabad High Court. Meanwhile, the government introduced a new set of rules under section 37 again titled Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguard) Rules 2020, and told the court that the previous rules had been withdrawn. These are the rules currently under discussion.
Section 37 of PECA first came under discussion in court when the website of Awami Workers party was blocked in June, 2018 almost a month before the general election. The party, through their lawyer, petitioned the court when the PTA failed to tell them why their website had been blocked. As a result of this petition, the Islamabad High Court asked the PTA to draft comprehensive rules under Section 37, that outlined the powers and procedure that PTA had to follow to block content online.
Amel Ghani is a Program Manager at Media Matters for Democracy and leads special initiatives on media development, digital rights, privacy online and Media and Information Literacy (MIL).