Digital Rights Foundation strongly condemns the recent ‘Citizen Protection (Against Online Harm) Rules 2020’ notified by the Ministry of Information Technology. Digital Rights Foundation raises strong objections to the Rules as they severely restrict the freedom of expression and privacy of Pakistani citizens in online spaces. 

These Rules directly address social media companies and require them to register and locate offices inside Pakistan, particularly establish database servers in the country signaling a definitive move towards data localisation. Additionally, the rules establish a ‘National Coordinator’ to engage with the social media companies on behalf of the Federal Government. The main objective of the Rules, it seems, is to exercise greater control over digital content of Pakistani users of these platforms and social media companies. If these companies do not abide by the requests of the National Coordinator, they will face heavy fines or a total shutdown of their platforms within Pakistan. 

Moreover, social media companies are instructed to “establish one or more database servers in Pakistan within twelve months of the date of publication of these Rules to record and store data and online content, within the territorial boundaries of Pakistan for citizen data privacy” (Section 5(d)). While this is ostensibly being done to protect citizen’s data privacy, it is clear that these Rules have the potential to be used to censor the last remaining frontier of information i.e. online media and make invasions into the personal data of Pakistanis on social media.

Rationale For Condemnation 

The Citizens Protection (Against Online Harm) Rules, 2020, chalk out the government’s plan to centralise control of digital information and expression through one central ‘National Coordinator.’ For the following reasons, we reject these rules and believe they should be revoked:

The Rules are a blatant violation of Article 19 (freedom of speech and information) of the Constitution. They exceed the boundaries of permissible restrictions within the meaning of Article 19 and lack the necessary attributes of reasonableness. While Article 19 permits ‘reasonable restrictions’ on freedom of speech only in the “interest of the glory of Islam or the integrity, security or defense of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court,” the Rules require all social media companies to remove or block online content if it is, among other things, in “contravention of instructions of the National Coordinator” (Section 4). As is clear from a plain reading of Article 19, ‘contravention of instructions of the National Coordinator’ is not a purpose for which a restriction on freedom of speech may be placed and cannot be used as a benchmark to undermine fundamental rights. 

This allows the National Coordinator to regulate online content purely on its whims and wishes. Further, the Rules require Social Media Companies to remove, suspend or disable any news article that is considered, or interpreted to be, ‘fake’ by the National Coordinator; bestowing upon it unchecked powers to be exercised at convenience.

Additionally, we feel that the additional powers of the Rules go beyond the scope of the parent Acts, i.e. Pakistan Telecommunication (Re-organization) Act, 1996 and the Prevention of Electronic Crimes Act, 2016. The PTA cannot delegate powers to another authority such as the National Coordinator beyond the powers that were vested in it through the parent legislation.

Violation of Right to Privacy: 

These Rules further weaken the state of privacy in the country: Data privacy is a pre-existing issue in the country, however, given current Prevention of Electronic Crimes Act regulations, there is still a legal process through which information or data on private users can be requested. The Rules presented by the Ministry of IT completely negate the current process, giving the government total access over data and information. Section 6 of the Rules obligates social media companies to provide any information, data, content or sub-content requested by the Investigation Agency. Astonishingly, the agency is not required to go through any legal or judicial procedure to make such a request. More worrying  is the fact that the information/data requested does not necessarily have to be in connection with, or related to, any offence laid out under the Rules rather can be any information the Investigation Agency may wish to pry into. Apart from violating the fundamental right to privacy, the Rules further threaten the state of privacy of private citizens within Pakistan. Furthermore, it is alarming that section 6 requires social media companies to provide information in “decrypted, readable and comprehensible format or plain version”, violating the reasonable expectation of privacy that citizens have when using social media and messaging applications.

Dire Consequences 

The Digital Economy will be massively affected: 

The most obvious effect of these rules will be on the digital ecosystem of Pakistan. These rules are incredibly restrictive and place immense powers in the hands of a ‘National Coordinator’. Such an atmosphere will prove non-conducive for social media companies to move to Pakistan as well as restrict the growth of Pakistan’s domestic digital economy. 

Social media has emerged as the backbone of many modern businesses, and has indeed created a new type of digital market. Many small businesses, women entrepreneurs and content creators use social media as a medium for their business. The imposition of such harsh rules will therefore not only affect individuals but also local startups and e-commerce establishments. 

Pakistan’s appeal as an investment opportunity will diminish: 

The requirement for registering with the Pakistan Telecommunication Authority (Section 5) and to establish a permanent registered office in Pakistan is a move towards “data localisation,” that will require every company to open an office in Pakistan before they can be granted permission to be viewed and/or create content in Pakistan. This challenges the borderless nature of the internet - a feature that is intrinsic to the internet itself. Even otherwise, forcing businesses to create a local presence is outside normal global business practice and creates a disincentive to invest within Pakistan. Such a regulation will force international social media companies to exit the country rather than invest further in Pakistan. It is unreasonable to expect companies to set up infrastructure in the country as per the Harm Rules when the nature of the internet allows for it to be easily administered remotely.

Society will begin to self-censor and important discourse will decrease: 

These Rules cannot be looked at in isolation. In a society that is faced with such massive impediments to free speech, the likely reaction that citizens end up having is to self censor themselves. People will restrict the discussions they take part in online and will also be less likely to partake in useful and productive conversations around governance and law. This will sever an important tie between the government and its people, thereby creating a massive divide between the two entities; something a democracy such as ours cannot afford.