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The United Nations (UN) Special Rapporteur on the Right to Freedom of Expression and Opinion, David Kaye, along with the UN Special Rapporteur on the Situation of Human Rights Defenders, Michel Forst, addressed a letter to the Government of Pakistan on 19 March, 2020, to express their concerns regarding the Citizens Protection (Against Online Harm) Rules, 2020. The letter with the comments of the Special Rapporteurs can be accessed here.
The preliminary reactions of the Special Rapporteurs indicate that the Draft Rules do not enshrine the rights to freedom of expression and opinion, and privacy, as per international human rights law, particularly under the International Covenant on Civil and Political Rights (ICCPR), ratified by Pakistan in 2010. The Special Rapporteurs make repeated mention of Article 19(2) of the ICCPR, which refers to a person’s freedom to seek, receive and impart information and ideas of all kinds, through any media of their choice. They also refer to the UN Human Rights Council (UNHRC) and the UN General Assembly consistently affirming that freedom of expression must be respected both online and off. They further note that any restriction on this inalienable right must be justified under the requirements of Article 19(3) of the ICCPR: that is, they must be provided by law, protect a legitimate restriction, and be necessary and proportionate.
Moreover, the Special Rapporteurs make note of Article 17 of the ICCPR: the right to privacy. Again, the UNHRC has asserted that the right to privacy applies equally both online and offline, and should not be disregarded through unlawful and arbitrary interference by the state. Measures such as surveillance or the collection of private data would significantly curtail the right to privacy. Measures to restrict this right must be proportional to the end sought and be of necessity as per the circumstances of a given case. The Special Rapporteurs note that the Draft Rules raise serious concerns in regards to the international human rights law obligations of the government of Pakistan to promote and protect freedom of expression. These concerns echo the issues that were raised by the Special Rapporteurs in relation to the Prevention of Electronic Crimes Act (PECA), 2016.
In the Citizens Protection (Against Online Harm) Rules, 2020, first, the National Coordinator is given blanket competence to instruct social media companies to remove content. The decisions of the National Coordinator are not subject to any judicial or institutional oversight. The National Coordinator would be the sole arbiter when it comes to determining what types of expression would be subject to removal; therefore, the fact that this law provides unfettered discretion to the National Coordinator to restrict the right to freedom of expression fails to meet the “provided by law” standard delineated in Article 19(3) of the ICCPR.
Secondly, the “sensitivities” that social media companies must take into account, be it cultural, religious, ethnic or in relation to national security, are not clearly defined in the Rules, and should be subject to rigorous oversight, given the likely impact on the freedom of expression of Pakistan-based internet users. Otherwise, companies would always err on the side of caution and liberally remove all kinds of legitimate content as per corporate judgment because of the broad language used in the Rules, as well as the severe penalties imposed on social media companies. Moreover, the Rules must not disregard the right to privacy, which has been enshrined by Article 17 of the ICCPR.
Furthermore, according to the Rules, social media companies must deploy proactive mechanisms to prevent live-streaming through Pakistani online systems of content that might qualify for removal. The letter written by the Special Rapporteurs mentions the impossibility of social media companies implementing this measure, as well as the exacerbation of online censorship. The Rules also refer to other impractical measures such as removing, disabling or suspending access to accounts of overseas Pakistanis who share “sensitive” content, or spread “fake news or defamation”. However, the rules do not define “fake news” or lay out the level of involvement required on part of Pakistanis living abroad. Hence the vague terms in the Rules do not necessitate the protection of a legitimate aim as per the ICCPR. Moreover, the general reference to “rules in force” indicates the Rules will follow Pakistani law such as PECA and blasphemy laws that also fail to satisfy the requirements under ICCPR.
While referring to “fake news”, the Special Rapporteurs have mentioned that apart from not defining the term, the Rules also go beyond the restrictions placed by Article 19 of the ICCPR. They note that restrictions on disinformation are inherently problematic and could lead to further arbitrariness, misapplication and abuse, particularly in reference to the 2017 Joint Declaration on Freedom of Expression and Fake News, Disinformation and Propaganda.
The letter notes that procedural safeguards against abuse as a result of content removal have not been provided by the Rules, as the rules of procedure only contain avenues to complain about expressions that supposedly go against the Rules. The requirement to provide decrypted data makes the work of human rights defenders and journalists exceptionally vulnerable. Moreover, the requirement to localise data may encourage surveillance measures with a far-reaching negative impact, particularly in regards to Pakistan’s marginalised communities.
Therefore, the government of Pakistan has been asked to provide the current status on the Rules and the measures taken to amend them in accordance with the obligations of the Pakistani state under ICCPR, while also taking into account the views of relevant stakeholders into account.
Media Matters for Democracy agrees with this analysis, as it underscores some of the concerns we have also highlighted in our detailed analysis; for instance, the overreaching role of the National Coordinator. We consider the Rules to be a threat to not only the country’s digital economy but also the citizens’ rights to freedom of expression and privacy. We also believe that creating Rules that go beyond the jurisdiction provided in the parent laws, and without consultation with all the relevant stakeholders, means that there was no concerted effort made to ensure that these Rules were drafted while keeping international human rights principles in mind. Our detailed analysis can be found here.
Zoya Rehman is a Special Projects Manager at Media Matters for Democracy. She is a feminist researcher and organiser based in Islamabad, Pakistan. She has been working on gender and legal issues from a multidisciplinary approach through her practice and research. Zoya is a recipient of the Chevening Scholarship Award, and holds MA in Gender Studies and Law at SOAS, University of London.