- Regulating without oppressing is tough
By: Pirzada Aurang Zaib
The power of social media has shown itself in the last decade, as not only has it become the most powerful platform for freedom of speech and expression but its reach and impact is unprecedented. However, although these social media platforms define our information ecosystem, they have remained unchecked and unregulated for the most part. As various governments around the world grapple with regulating social media, it seems increasingly likely the question is not whether social media will face government intervention, but just how consequential those interventions will be.ng realization of the need to regulate the social media platforms thus to weed out any negative use of the social media forum by means of promoting hate speech, terrorist activities, fake and false news amongst others. Facebook CEO Mark Zuckerberg, speaking at the Munich Security Conference in Germany, called for more regulation of harmful online content, but such regulation must encode democratic and open values, thus not be used to stifle individual expression. Thus the focus is to effectively create a balance between regulating social media platforms and avoiding infringing on the individual right to information and free speech.
In this background, the Government of Pakistan has also taken steps to provide for a mechanism to cut the social cost of media platforms and in such attempt the federal government has notified set of rules to regulate the contents of social media platforms titled ‘Citizen Protection [Against Online Harm] Rules 2020’. The Rules have been framed under sections 35, 27, 48 and 51 of the Prevention of Electronic Crimes Act, 2016, read with section 54 and 57 of the Pakistan Telecommunication [Re-Organization] Act 1996.
The promotion of responsible content moderation is in fact the ultimate goal towards which any regulatory mechanism should strive for however, the distinction must be drawn between regulating and controlling the social media platforms and the aforesaid Rules rather tilt towards the latter rather than the former. That may be why the Prime Minister ordered the rules not be enforced, and why the Islamabad High Court has taken cognizance of petitions against them
The Rules provide for a stringent mechanism to regulate the illegal content on social platforms. Rule 3 calls for the establishment of an office of National Coordinator, within 15 days from the commencement of the Rules. Amongst his many functions, he would have be responsible for engaging with social media companies on behalf of the federal government and may direct the concerned officials from those social media companies to appear before it to discuss any aspect related to the operation of the Online System.
Rule 4 obliges the social media companies to disable, suspend or remove, such online content, which the Authority consider to be in contravention to any rules, regulations, act or law framed. In ordinary course, such measure is to be taken within 24 hours from intimation by the Authority and in case of emergency within six hours. Further, Rule 4 holds that the permissibility of any online content by the National Coordinator/Authority under the relevant rules and law shall take precedence over any community standards or rules or community guidelines devised by a Social Media Company.
Rule 5 requires all social media companies operating in Pakistan to get themselves registered with the Authority within three months; to establish permanent registered office in Islamabad, with physical address; to appoint a focal person based in Pakistan to coordinate with the National Coordinator; to establish one or more database servers in Pakistan within 12 months from the date of publication of these rules. Rule 6 bounds the Social Media Companies to provide any information, data, content, sub-content, contained in any information system owned by the Companies, to the Investigation Agencies, as may be required by them.
In case the Social Media Company fails or refuses to abide by the provision of these Rules, Rule 7 empowers the National Coordinator to block the entire Online System or Social media Application owned and controlled by such social media company and may also levy a fine up to Rs 50 million. The Company will have the right to file a representation within two weeks of the date of its blocking before a committee constituted by the federal government, and the committee will take a decision within three months. Rule 8 provides for a mechanism for filing of complaints against unlawful content as defined under the Rules.
These Rules have been approved by the Federal Cabinet in secrecy without any practical discussion or consultation with the stakeholders, which is the bedrock of the democratic process and consequently there has been severe criticism from both the civil society and media alike. The Committee to Protect Journalists has demanded that the Pakistan Government should immediately roll back the set of social media regulatory measures, passed in complete secrecy, without due consultation with the concerned stakeholders, including civil society and media. It has been referred to as an attempt to further restrict space of free discourse in Pakistan. Likewise the establishment of office of the National Coordinator has been viewed as an attempt to centralize the control of digital information expression thereof.
Similarly, from bare perusal of the Rules, it is evident that the Rules may face strict judicial scrutiny on multiple fronts. It may be argued that the Rules are in violation to the fundamental right of freedom of speech as enshrined in Article 19 of the Constitution of Pakistan and the mechanism provided in the Rules goes above and beyond the level of reasonable restrictions. Furthermore, the powers and authority given to the National Coordinator appears to be unrestricted and arbitrary in nature thus going against the very fundamentals of general law. Also, unconditional and unilateral access to the personal information/data of a social media user to the investigation agencies under rule 6 of the Rules raises concern regarding the breach of privacy of that individual. Similarly, many of the powers granted under the Rules are over and above the powers granted under the parent statues, thus void under the principles of delegation under law.
The promotion of responsible content moderation is in fact the ultimate goal towards which any regulatory mechanism should strive for however, the distinction must be drawn between regulating and controlling the social media platforms and the aforesaid Rules rather tilt towards the latter rather than the former. That may be why the Prime Minister ordered the rules not be enforced, and why the Islamabad High Court has taken cognizance of petitions against them.
Writer is a Barrister-at-Law from the Hon’ble Society of Lincoln’s Inn. He is based in Lahore and is a partner at Ibrahim & Ibrahim-Barristers and Legal Consultants. He tweets @pirzada_