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Tuesday March 19, 2024

Taming social media

By Babar Sattar
May 27, 2017

Legal eye

There are two unmistakable phenomena we are witnessing on social media. One, there exist organised groups in our midst – members of which mostly function under pseudonyms – involved in spreading false and malicious information. Their actions are coordinated and deliberate. And two, as a community we lack the ability to disagree with others without imputing vile motives. We just haven’t learnt to attack an argument on its merit without impeaching the character or integrity of the person making it.

Are these phenomena unhealthy and disagreeable? Yes they are. Do they vex users caught on the wrong end of propaganda accounts? Yes they do. Can false information and attribution of corrupt motives defame those on the receiving end? Yes it can. But do false allegations hurled through social media put our value set or credibility of state institutions in jeopardy? No they don’t. Does horrid social media behaviour justify viewpoint censorship through an intimidation regime enforced by the FIA? No it doesn’t.

Things don’t look pretty when Abdul Aziz is free to spew hate but anonymous social media activists are billed as real threats to state and society. Or when our interior minister wishes to play vanguard of ‘moral values’ allegedly threatened by social media in a state consumed by the most malignant form of terror. The surveillance regime, whose stated objective is to put fear in the hearts of abusive elements (madar pidar azaad) using social media to bring our judiciary or army into disrepute, is wrong on all plains: legal, political, conceptual and logical.

The right to free speech guaranteed under Article 19 is subject to “reasonable restrictions imposed by law in the interest of… integrity, security or defense of Pakistan or… public order, decency or morality, or in relation to contempt of court…” While this article can be used to rob the very freedom it seeks to protect, the categories of less protected speech that it identifies can only be regulated subject to certain conditions.

One, any restrictions on speech must be imposed by law – ie by parliament. Two, restrictions must be reasonable and satisfy the tests of necessity and proportionality – ie only such limited restrictions should be imposed that are absolutely necessary to achieve a legitimate state purpose. We already have laws that prohibit, amongst other things, hate speech, incitement of violence, defamatory speech and speech that brings that the judiciary into disrepute.

But no law vests in the FIA (or the interior ministry) the authority to act as censor board for social media. The Prevention of Electronic Crimes Act sponsored by the PML-N government has objectionable provisions that restrict freedom of speech and which many had predicted would be abused to further partisan interests of ruling regimes. But even PECA confers no authority on the Interior/FIA to muzzle social media. PECA defines hate speech as speech “likely to advance inter-faith, sectarian or racial hatred”. So the Interior/FIA aren’t cracking down on hate speech.

PECA also criminalises glorification of violence, dissemination of information for purposes of terror, offences against the modesty of individuals and child pornography. None of this is in question here. Section 18 of PECA, which is non-cognizable, criminalises intentional transmission of false information that “intimidates or harms the reputation and privacy of a natural person.” This is meant to protect the dignity and privacy of individuals and not the holy cow status of institutions.

Section 34 of PECA defines “Unlawful on-line content” and adopts verbatim the language of Article 19 of the constitution. But it doesn’t criminalise unprotected speech categories. It merely authorises the Pakistan Telecommunication Authority to remove or block such speech. In other words, PECA vests no power in anyone to impose a code of conduct to protect the reputation of the military or judiciary and initiate criminal proceedings against those accused of critical speech against these institutions.

The proposed regulation of social media is invidious for it is driven by partisan politics. The PML-N locking horns with the military (all through the 90s leading to Musharraf) and physically attacking the Supreme Court is a matter of record. What explains this epiphany to stand up and defend institutions from the vicious attacks of anonymous nobodies? Two things have happened recently.

The majority in the Panama case ruled against immediate disqualification of the PM. This gave the PML-N some relief, and angered the PTI. The two judges who ruled that the PM ought to be disqualified were hailed as heroes by the PTI’s social media brigade. The three who didn’t were attacked.

When ISPR publicly rejected PM’s office order on Dawnleaks, the PTI and other opposition parties celebrated and defended the indiscipline. When the army subsequently backed down and it sunk in that excitement over the prospect of the military stepping up to cut the PML-N to size was premature, the PTI (and fauji hawks) attacked the army chief while the PML-N celebrated him.

In short, this isn’t about principles. In opposition, political parties champion free speech. When in government they hate the audacity of critics and use fig leaves such as national security, sanctity of institutions, conspiracy against democracy, madar pidar azaadi etc to curb the freedom to hold and express critical opinion. The PML-N realises that it lags far behind the PTI when it comes to the influence of their respective social media brigades. It also realises that pressure generated by social media campaigns is real; and hence the need to take the PTI’s edge away.

Even if the PML-N’s desire to undertake content-driven regulation of speech on social media were bona fide, the idea is fundamentally flawed. Our problem as a polity has historically not been that we are too critical of our institutions. It is that we have been too pliant and agreeable to accept the state’s narrative without subjecting it to critical scrutiny. States commit blunders all the time and ours is no exception, as our history suggests. Thus, the premise that the wisdom of state institutions is infallible and mustn’t be subjected to criticism is plain wrong.

This doesn’t mean that smearing the integrity of public officials or attributing corrupt motives to them is fair game. Public officials, like the rest of us, have a right to have their dignity and reputation protected. But for that, they may resort to defamation laws, like the rest of us, and not fall back upon ‘sanctity of institutions’ as a whip to deter critics. The sanctity argument is often used to shield actions of individuals heading institutions from critical scrutiny. Our institutions aren’t so fragile that undue criticism would shake their foundations.

Our polity functions on the belief that critical ideas are a contagion. In assuming so we deny agency to citizens. This madar pidar azaadi argument is nonsense. The difference between a minor and an adult is that the latter is required to be madar pidar azaad: an independent, autonomous and accountable human agent. It is the responsibility of parents, family and society to create an environment for nurturing minors that enables and empowers them to think and critically evaluate ideas of others. The manner of expressing criticism is a subsidiary issue.

If we don’t train our youth to be madar pidar azaad in their thinking, how are we ever going to produce fresh ideas? Why aren’t we producing world-class scientists, entrepreneurs, thinkers and writers? Why aren’t our universities brimming with fresh ideas and critical debates? Why do we insist that non-conformists are a threat to state and society? Is our present (or past) so glorious that we can’t bear the thought of our future generations doing anything other than imitating it?

Many who stick their necks out to express opinion publicly have had their honestly, integrity and patriotism impugned. Many have been imputed false motives. We have the option to hit the block button or initiate defamation proceedings if trolling crosses redlines. But we must not let unpleasant social media attacks translate into support for the PML-N’s policy of censoring social media and intimidating citizens into indulging in self-censorship. The PML-N will also support this position whenever it is in the opposition next.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu