April 06, 2018 - Comments Off on Man Convicted in the First Judgement under the Prevention of Electronic Crimes Act (PECA)
In an important decision, a Judicial Magistrate, Muhammad Amtiaz Bajwa of the District Courts, Lahore has convicted an offender under the Prevention of Electronic Crimes Act, 2016 (PECA) [see judgement here]. Digital Rights Foundation has been advocating on the need for sound jurisprudence on issues of online harassment and cyber crimes in general.
This has come about as a result of a criminal case filed, under sections 20, 21 and 24 of PECA as well as section 420 of the Pakistan Penal Code (PPC), with the Cyber Crime Circle FIA by the complainant whose wife became the victim of cyber harassment at the hands of the convict. As per the judgement obtained by DRF from the relevant court, which is available for public perusal underneath, the charges against the accused include disseminating compromising pictures and videos of the victim through Whatsapp messages and fake email addresses for the purpose of blackmailing her.
Following forensic analysis on three separate email addresses and three mobile numbers, Muhammad Usman who is an Assistant Director Investigation of the Cyber Crime Circle, deposed that he was associated with this case as the Technical Expert and had found data in the phone corresponding to that shared via the email addresses and submitted a 38-page report following. This and other testimonies by Prosecution Witnesses (PW) went on to strengthen the case against the accused leading to a judgement under the following sections:-
S.20 Offences against dignity of a natural person.--- (1) Whoever intentionally and publicly exhibits or displays or transmits any information through any information system which he knows to be false, and intimidates or harms the reputation or privacy of a natural person shall be punished with imprisonment for term which may extend to three years or with fine, which may be extended to one million rupees or with both.Cyber Crime FIR
S.21 Offences against modesty of a natural person or minor.--- (1) Whoever intentionally and publicly exhibits or displays or transmits any information which,
(a) Superimposes a photograph of the face of a natural person over any sexually explicit image or video.
s.24 Cyber stalking
(1) A person commits the offence of cyber stalking who, with the intent to coerce or intimidate or harass any person, uses information system, information system network, the lnternet, website, electronic mail or any other similar means of communication to
(a) follow a person or contacts or attempts to contact such person to foster personal interaction repeatedly despite a clear indication of disinterest by such person;
The learned Magistrate awarded:
- 2 years imprisonment and a fine of Rs. 200,000 under s.20 of PECA
- 2 years imprisonment and a fine of Rs. 300,000 under s.21 of PECA
- 2 years imprisonment and a fine of Rs. 200,000 under s.24 of PECA
Additionally, and an amount of Rs. 10,00,000/- was awarded in as compensation for damaging the social/private life of the victim as envisaged under s.45 (Order for payment of compensation) of PECA.
In describing the nature of the crime in this case, the learned judge posited that the defendant in the case betrayed the trust of the victim in this case and a “flagrant intrusion into privacy” was undertaken by him. What dissuades this from being a judgement that is seminal in nature, is that it primarily focuses on the veracity and verification of the evidence produced by the prosecution, rather than the nature of the crime. The judgment, though an encouraging development, does not lay down any substantial tests or legal principles regarding online harassment, unlike judgements in other jurisdictions. For instance the judgment in United States v Drew explored the specific facts and situation at length and laid down substantive ground for any future cases of a similar nature to be decided under.
Interestingly, when deciding on the quantum of punishment, the judge does take into account the fact that “cyber crimes are new to society” and while ignorance of the law is not a defence, there is an onus on the “Government to educate the people in respect to the new cyber crimes”, this is a welcome suggestion however veers more towards policy-making than fleshing our case law.
Another noteworthy aspect about this judgment is the fact that section 45 was used to award compensation to the victim for damage to “social/private life of the victim”. This is a healthy development as the judge recognised the toll that online harassment can take on mental, physical and social well being of victims, and employed the law to acknowledge that impact.
Digital Rights Foundation will continue to monitor these judgments and developments in legal jurisprudence around online harassment. Our hope is that a gender-sensitive approach will be taken to espouse legal principles that look towards the future in developing robust case law around cyber crime laws.
Authored by Zainab Durrani and Shmyla Khan
Published by: Digital Rights Foundation in Blog