The Prevention of Electronic Crimes (Amendment) Ordinance, 2022, promulgated by the president last weekend makes amendments to the Prevention of Electronic Crimes Act 2016 (PECA) which deals with cybercrime cases and content moderation of digital spaces. The amendment via this ordinance amends Section 20 of the Act to extend the scope of online criminal defamation to include public figures, an unprecedented step that has the potential to completely chill free speech in online spaces.

Defamation has been criminalised in Pakistan under Section 20 of PECA as well as Sections 499 and 500 of the Pakistan Penal Code (PPC). The amendments under the ordinance only deal with the section in PECA, which is a specialised law that applies to online spaces. Section 20 has been a bone of contention from a human rights perspective for a while now as it has been used by the state to register cases against journalists for unfavourable statements, often allegedly against the government and state institutions. The section, even before the amendment, was heavily criticised in other contexts as well as it has been used repeatedly to silence and intimidate women and survivors of gender-based violence who have spoken out online against powerful men, particularly as part of the #MeToo movement.

Criminal defamation has been recognised to be contrary to international law. The UN Human Rights Committee noted in General Comment No 34: “States parties should consider the decriminalisation of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.” Given that a civil remedy exists in the law under the Defamation Ordinance, 2002, anyone who suffers harm will still have a forum to turn to. Rights groups have pointed out that the criminalisation of defamation under PECA is particularly wide in its scope as it does not contain the provisos and caveats found in the PPC sections.

This brings us to the amendment at hand, which makes online defamation a cognisable and non-bailable offence along with sections dealing with child pornography, cyber terrorism and non-consensual sharing of intimate images. It is worrying that an already problematic section has been elevated to the category of serious crimes. This change means that bail shall not be given as a matter of right in cases of criminal defamation under PECA and the law enforcement agencies will not require authorisation from a court before registering a case. Furthermore, the ambit of those who can claim protection under the section has been expanded to include “public figure or a holder of public office” and the definition of persons under the Act now covers “any company, association or body of persons whether incorporated or not, institution, organisation, authority or other body established by the Government under any law.” The expansion runs afoul many free speech principles, a fundamental right guaranteed under Article 19 of the Constitution, as public figures are expected to enjoy less protection for defamation. Private persons can expect not to be discussed or defamed on public forums; however, public persons cannot hold the same expectation.

The fact that the amendment was made via ordinance speaks to a worrying trend of the government arbitrarily passing legislation without parliamentary consultation.

Furthermore, the fact that the amendment was made via ordinance speaks to a worrying trend of the government arbitrarily passing legislation without parliamentary consultation. The fact that the issues dealt with by the amendment did not require immediate intervention on an emergency basis, particularly when parliament was in session, is indicative of an undemocratic trend and violates the principle of separation of powers between the executive, legislature and judiciary with the executive overstepping its powers to infringe on the law-making domain of the legislature.

The past few days have been a whirlwind for free speech in digital spaces. First, journalist Mohsin Baig was detained and allegedly tortured by the Federal Investigation Agency (FIA) on the complaint of Federal Minister Murad Saeed for “derogatory remarks” on television. The arrest raised many issues on the use of online laws to harass journalists and arbitrary practices of the FIA as highlighted by Islamabad High Court in its remarks regarding the case this week.

Then there were reports that the police and Counter Terrorism Department (CTD) were to be designated as the relevant law enforcement agencies along with the FIA for cases relating to PECA. Given that PECA accords powers under Section 29 to the Ministry of Information Technology and Telecommunication to designate law enforcement agencies this change can be done via notification without requiring an amendment or notification of rules.

All citizens should be worried about these developments as internet connectivity is growing in the country and so many of us use digital spaces to voice our opinions. This will affect us all. Even if one is able to mount the “truth” defence once charged with defamation, it will require the person accused to face possible jail time during the interim of the trial, bear legal expenses and go through the agony of a criminal trial. The mere possibility of going through this process would be enough to discourage anyone from criticising public figures, government or state institutions in digital spaces – imagine how empty our timelines would look if that were to happen.

The writer is the director of   policy and research at Digital Rights   Foundation