New legislation threatens digital media freedoms
eeping up with the barrage of legislation by the parliament in the last few weeks has been enough to send the average observer into a tailspin. The ease with which the Senate and the National Assembly have passed laws has been worrying given the lack of transparency and space for debate on important laws, including amendments to the Elections Act, Army Act and Official Secrets Act. In this context, bills to tighten control over digital spaces should be a cause of concern for anyone invested in Pakistan’s digital future.
Three legislative proposals have been floated by the government: the bill amending the Prevention of Electronic Crimes Act 2016 (PECA); eSafety Authority Bill and the Personal Data Protection Bill, each contributing to an already worrisome internet and digital governance landscape. The first two bills, the PECA amendments and eSafety, seek to further restrict online speech. The Data Protection Bill proposes worrisome measures to control personal data of Pakistani citizens.
Online speech has been a major concern for the state over the past decade and the PECA, passed in 2016, has been a tool in the state’s arsenal to penalise speech through cases filed against journalists and activists for their online activities. There have been attempts in the past to expand the law’s scope. For instance, the PECA Ordinance introduced in February 2022 sought to expand criminal defamation to include state institutions in addition to natural persons.
The intention behind this ordinance was to insulate state institutions from criticism on social media. While the ordinance was struck down by the Islamabad High Court in April 2022, the government has now drafted further amendments to Section 20 of the PECA to make it punishable for up to five years to publish or share “fake and false information.” No definition or benchmark for what constitutes fake news has been provided, leaving the law open to misuse.
In addition to expanding speech offences, the proposed bills seek to expand the state’s power to regulate digital content. The PECA amendment bill significantly expands the powers of the Pakistan Telecommunications Authority (PTA) under its Section 37 to block or remove content that includes “fake and false information,” any speech that “casts aspersions against the Judiciary or armed forces of Pakistan,” and “defamatory content” as defined in other laws. This will widen the already wide net of internet censorship in Pakistan, previously resulting in wholesale bans on platforms such as Wikipedia, TikTok and BigoLive over the last few years.
The eSafety Authority Bill requires that Social Network Platforms register under the eSafety Authority. These platforms will include web TV channels, YouTube channels (including vlogs), Over the Top (OTT) channels such as Netflix, Amazon Prime, etc, and social networking sites such as Twitter (now known as X), Facebook, SnapChat, Instagram, TikTok, etc.
The eSafety Authority Bill, on the other hand, seeks to repeal Section 37 and create an even more expansive censorship regime that allows for a wide range of content to be regulated and removed. Furthermore, the bill requires that Social Network Platforms register under the eSafety Authority. These platforms will include web TV channels, YouTube channels (including vlogs), Over the Top (OTT) channels such as Netflix, Amazon Prime, etc, and social networking sites such as Twitter (now known as X), Facebook, SnapChat, Instagram, TikTok, etc. The proposed law seeks to impose a broadcasting regulatory model onto the internet that violates principles of intermediary liability guaranteed to service providers.
This is extremely worrying as it will stifle small content creators who will have to contend with onerous registration requirements simply for posting a vlog and will drive tech platforms such as Netflix out, given the hostile regulatory environment. Between competing proposals for internet regulation, it seems that the eSafety Bill might be presented in the parliament soon given that it was approved by the federal cabinet in the last week of July.
Another proposed law that has received assent from the cabinet is the Personal Data Protection Bill. While titled innocuously, it will have the opposite effect on users’ data privacy through requirements such as data localisation which seeks to essentially “lock” user’s sensitive personal data within the country. Data localisation is particularly worrisome in Pakistan’s context as the country lacks the infrastructural capacity to provide data servers for local and international businesses making the implementation of this requirement impossible. The government has apparently failed to consider practical requirements such as uninterrupted electricity supply in order to run such data centres.
The Asia Internet Coalition (AIC), consisting of major tech platforms such as Meta, Google, Apple, Amazon, LinkedIn, Twitter, Bookings.com, and Yahoo!, have issued a statement that the bill will negatively impact operations and investment by foreign internet companies.
Together these bills signal a worrying trend for Pakistan’s digital economy and digital rights. While concerns regarding disinformation, accountability of big tech platforms and keeping private data safe are legitimate, it is important not to give into simple solutions to complex problems. The state needs to recognise that questions of technology and their impact on society are complicated and ever-evolving. They require deep deliberation and only rare punitive interventions.
The writer is the director of policy and research at the Digital Rights Foundation