Illustration by Aniqa Haider
As a whole, Pakistan imbues in itself many peculiarities. One of these is the relationship we have fostered with the concept of privacy. Privacy brings to mind different meanings for different folks. In multiple sessions conducted in my capacity as a project manager at the Digital Rights Foundation on the importance of the right to privacy, the word ‘privacy’ has been defined in a myriad of ways but the core understanding of it is, ‘something that is personal, that is yours’.
Steeped in patriarchal beginnings, as well as on-goings, the understanding of privacy in Pakistani culture takes multiple off-shoots: there is firstly the common idea of privacy being needed only as a tool to mask any wrongdoing. This sets off in the mind the necessary connection that no privacy is needed, for example, from the State if no wrong is being done by the individual. A prime example of this is how readily we give our Computerised National Identity Card information, popularly known as the CNIC information, as compared to the social security numbers of American citizens, which are considered much more confidential and divulged only on a need-to-know basis.
The negation for this lies not only in administering an understanding of the actual concept of what privacy really means but also in connecting the dots. The demand for privacy, for safety of our data, especially that held by government institutions such as the National Database and Registration Authority (NADRA), should take primacy here, specifically in light of the massive data breaches that State databases have experienced. These breaches have resulted in citizens’ data being sold openly on the internet for merely a few hundred rupees, which has happened at multiple instances over the years, including 2018 and then again in 2020 when approximately 115 million citizens’ mobile data was made public. This instance resulted in a probe being ordered for addressing multiple queries, including whether NADRA was responsible in any way. This happenstance is of course not limited to government-held data, as private companies have also faced substantial data breaches, such as that of the ride-hailing service Careem in 2018 where a staggering 14 million of its 20 million customers at the time were affected by the leak.
A second off-shoot of our conversation is the gendered element: our privacy, while already a fledgling thing, is segregated. Women and girls are commonly seen undeserving of individuality, of an identity and independence of their own. This begins from the concept of suspicion, of the attachment of ‘honour’ to their beings and translates into devoiding them of space, technology and social lives of their own. This need to monitor their lives results in negligible privacy afforded to them.
That is roughly half of the country’s population, negating the few pockets of privilege where misogyny is halted at the door, which does not understand privacy for the sheer reason of not having experienced it.
This loops in and then connects itself to the agenda of togetherness, forwarded by concepts like the joint family system, which we as a society are incredibly fond of. This highlights our culturally-held belief that all is well in numbers, implying that connectedness is the key to a happy family life. This of course ignores the plethora of issues that jump out from forcefully maintaining unhealthy relationships with little to no boundaries as well as little to no physical space.
Thirdly, the disparity in culture brings to focus a technical problem: the means of redress provided by the social media giants see an even greater fall in efficacy than usual, in the Pakistani market: Facebook’s Community Standards are built on Western understanding of privacy, cultural norms and ergo, the violation of said norms. The language barrier is just one element, because even if conveyed in English, the controversial nature of some of the content only makes sense given the context of the culture of a conservative country like ours. This leads inevitably, to a high instance of reporting resulting in inaction or not finding reported content to be in violation of said standards, thus negating the privacy of many or alternatively causing them to be excluded from online spaces due to lack of security.
All these elements combine to bring about a people who simply are not aware of a way of living that does not have to be uncomfortable and unsafe: a life with some semblance of privacy.
The world has moved on to create progressive legal frameworks like the General Data Protection Regulation (GDPR) by the European Union and yet we are still coming to terms with how to erect and then maintain boundaries in our lives. Boundaries that by law allow us to keep our private business to ourselves.
This law, that is being referred to, is encapsulated in the Constitution of Pakistan. Article 14 (1) of the document states: “[t]he dignity of man and, subject to law, the privacy of home, shall be inviolable.”
The Constitution of any country is the highest law in the land. In fact, it is the framework that sets out the entire operating procedure for the country as well as detailing the perimeters of what laws can be created by its legislative machinery, going forward. Despite its primordial status, the right to privacy as granted to citizens of Pakistan comes with its limitations.
In recent times, these limitations seem to have been tested more often than usual, with the recognition of the online right to privacy and the subsequent addition in our legal framework by regulatory bodies such as the Pakistan Telecommunication Authority (PTA) and the Pakistan Electronic Media Regulatory Authority (PEMRA). Oddly enough, the proposed rules and regulations seem to be moving to minimise the fundamental rights accorded to us, instead of protecting them. In February 2020, PTA introduced the Citizens Protection (Against Online Harms) Rules that resulted in criticism in the form of deliberation and comments from civil society.
Digital Rights Foundation’s analysis of the Rules found that, “Protecting online security is an important priority; however, the ambiguously defined scope, vague language and lack of safeguards in the Rules raises serious privacy concerns for both individuals and businesses. There are no prescribed qualifications and criteria for selection and appointment of the proposed National Coordinator. This is especially concerning considering the extensive powers of the National Coordinator, including quasi-judicial and legislative powers to determine what constitutes a harm.”
Media Matters for Democracy (MMfD) called the Rules ‘a direct threat to Pakistan’s digital economy and the citizens’ rights to freedom of expression and privacy.’ MMfD expressed concern that these Rules appeared to be a blatant attempt to exert unchecked control over content not just being shared on public digital platforms but also through private messaging applications.
Article 14 of the Constitution
Zeeshan Zafar Hashmi, who is an Advocate of the High Courts and lecturer on Jurisprudence & Legal Theory at Pakistan College of Law commented on the right to privacy by saying, “The right to dignity is one of the few non-derogable rights in the Constitution, which means it is not subject to restrictions. Since the word ‘dignity’ cannot be precisely defined, the Courts have treated Article 14 as a catchall provision to enforce rights that are not specifically mentioned in Part II, Chapter I of the Constitution.” A tactic, in his words, which is frowned upon by some legal scholars due to concerns surrounding overstepping by the courts and encroaching into matters best left to the legislature.
Hashmi also commented on the second element of the Article in question, i.e. privacy. “Article 14 also refers to the right of privacy of home, which is subject to law, which in turn means this right is subject to restrictions. The right to privacy has taken centre stage in the debate on digital rights. The Prevention of Electronic Crimes Act, 2016 legislated with respect to things like revenge pornography, child pornography, cyber stalking, and electronic fraud and forgery, but a lot of work still needs to be done with respect to protection of privacy from social media networks and online advertisers.” He adds, “Unfortunately, the government’s recent efforts with respect to regulation of social media has had more to do with restricting people’s fundamental rights to freedom of speech and expression, rather than protecting the right to privacy.”
This highlights the legal fraternities’ concerns with the main legislation covering digital rights in Pakistan, given that we do not yet have any laws that cover the subject of personal data. What we do have is a Personal Data Protection Bill (PDPB) that was first introduced by the Ministry of Information Technology and Telecommunication (MoITT) in 2018 and now is up to the third and current draft that was released in April of this year. This draft, just as its predecessors, contains many provisions and definitions that have earned the ire of the civil society and digital rights community, which have been documented by organisations such as the Digital Rights Foundation, MMfD and Bolo Bhi from a human and civil rights’ perspective.
The Importance of the Online Right to Privacy
Shmyla Khan, a noted digital rights activist working with the Digital Rights Foundation, stated that, “In our approaches to privacy we’ve seen that the analysis is that South Asian countries have a collectivist approach to rights, as we have a community-based culture as opposed to individualistic culture in the West; however when it comes to privacy, it isn’t as clear cut. The same analysis cannot be transposed.” There is less emphasis on privacy of the individual; people feel more entitled towards each other’s information and lives within the community because we have seen even in offline spaces that there is a stark difference between who gets to have privacy and who does not.
Shmyla goes on to discuss the family system and the disparities present in the treatment of different genders, which substantiates the argument against the patriarchal roots of Pakistani society that have lent a great hand in shaping our approach to the need for privacy:
“Even within the family, men are accorded individualistic privacy and lives, and sometimes get to have space, even if there’s privilege there. Even in low-to-middle class homes, sons get to have their own rooms, whereas women have to share collective space, so you cannot simply say that because of a collectivist culture our concept of privacy is more collective. Some people are accorded more privacy because of cultural reasons bound with patriarchy.” Hence, she believes, women are seen as less entitled to privacy, and people feel more entitled to their lives, because their lives are not seen truly as their own.
Shmyla explains how culture translates into approaches to privacy, “We see that transition happening from offline spaces to online spaces quite clearly whereby women’s privacy is not seen as a right but as an entitlement that can be taken away if they are seen to deviate from cultural norms. People use this as an example that Qandeel Baloch was deemed not to be entitled to her privacy once she had crossed certain boundaries of decency because she was seen as a certain type of woman in online spaces and had made parts of herself public. Then its fair game, then we get to reveal her passport details, her true name, which ultimately all contributed to her honour killing.”
An article published on the Gender IT website writes, “The socially conservative and patriarchal nature of Pakistani society ensures that anyone that publicly declares themselves to be feminist and progressive and who point out the hypocrisies of said society, will find themselves fearing for their lives, without protection from the state even when they have requested said protection. The lack of proper measures for the right to – and the protection of – personal privacy, as well as a basic society-wide lack of understanding of the concept of privacy, played just as much a part in Qandeel Baloch’s death as the flawed and fragile hyper-masculine concept of ‘honour.”
We constantly see that if a woman is behaving in a manner outside of gender norms that transgresses how a woman should act online, then her privacy is often taken away as a form of punishment. “I think patriarchy is part of our culture and that should feature into the analysis of how we look into privacy,” Shmyla states.
The grave nature of the impact of this behaviour, and how any transgression is dealt with can be seen around us daily in the news. Whether it is choosing your partner or a meal not made well, we feel entitled enough to take the lives of our women for whatever does not sit well with us. According privacy seems a far out cry where the basic autonomy of an individual is not recognised.
While speaking to Saba Sabir, a clinical psychologist whose experience includes working with victims of cyber harassment, I asked her if our cultural disregard of boundaries and near-toxic focus on togetherness, as well as dismissal of women and girls’ need for individuality and privacy, the reason why we have this situation on our hands?
Saba commented on the behavioural aspect by saying, “Although there is a disregard of boundaries, in many cases, it isn’t by choice or will. Our culture is a culture of shame whereby most of our actions are motivated either by causing shame or avoiding shame, plus there’s a heavy emphasis on other people’s approval. And privacy and boundaries make things very personal, taking away what others say or their opinions about our matters. If something is hidden, it causes uncertainty in others, and takes away our need for control. It’s this fear of becoming irrelevant in other people’s lives, which I believe forces us to focus on the collective and avoid setting any boundaries.”
Additionally, Saba believes that women and girls are expected to not have any secrets. “Anything that needs to be ‘hidden’ is considered shameful or wrong, thus putting a negative connotation to the idea of privacy or boundaries.”
It is in freeing ourselves of the archaic shackles of patriarchal beliefs and practices wherein lies the key to respecting the individual, regardless of their gender, so we can move on towards playing catch-up with the rest of the world in our understanding of what have now become pertinent digital, and thus human, rights, such as that of the protection of our data, anonymity and safety. The right to privacy, as illustrated above, is not just limited to our data but has multifaceted ramifications that seep into our everyday lives. It is a core tenet of a healthy existence. The way we view this right, as well the concept of privacy in and of itself, has to be reevaluated and overhauled in order for there to be a more balanced approach to our lives, both online and offline.