Fighting for Internet freedom on a legal front: Umar Gilani and Asad Baig challenge the legality of the news and social media blackout during ‘Faizabad Dharna’

On 25th November last year, in an attempt to contain the hate spewed during a violent protest in the heart of the capital city Islamabad, the Federal Government decided to take censorship in Pakistan to a new high by shutting down all the broadcast news channels. After jamming the upload to Pak-Sat, the Federal Government realised that broadcast news outlets are using news websites, and social media platforms to stream their live feeds, realising which the telecom regulator moved to block access to some two dozen news websites, and popular social media platforms including Facebook, Twitter and YouTube.

Citizens of Pakistan have suffered internet censorship, media blackouts, and even network shutdowns, but this move was unprecedented. Never have we, even in the era of the dictators, experienced such a blackout where access to social media platforms and news and information online and through broadcast outlets were simultaneously blocked. The blackout lasted for 30 hours and as expected it affected people all around the country. To make things worse, the GSM networks including the mobile internet was shut down in most of Islamabad and Rawalpindi, creating chaos everywhere.

Pakistan has a long history of censorship, and more recently Internet censorship. In various instances, the access to popular social media and news websites has been blocked in the past, including those operated by rights activists. Similarly, on the request of Pakistan’s government, Facebook has taken down pages of Baloch and Sindhi activists and bloggers.

The censorship, or ‘regulation of online and broadcast content’ as it is commonly referred to by the government, is carried out under various [perceived] legal covers. Pakistan Electronic Media Regulatory Authority, the regulator of broadcast media in Pakistan empowers the Federal Government through Section 5 to issue ‘directives’ to PEMRA on policy matters and that too using vague qualifiers.

It reads:

5. Power of the Federal Government to issue directives: The Federal Government may, as and when it considers necessary, issue directives to the Authority on matters of policy, and such directives shall be binding on the Authority, and if a question arises whether any matter is a matter of policy or not, the decision of the Federal Government shall be final.

Similarly, the telecommunication act, officially named Telecommunication Re-organisation Act 1996, through its Section 8 allows the Federal Government to be able to issue directives to the Pakistan Telecommunication Authority.

It reads:

The Federal Government may, as and when it considers necessary, issue policy directives to the Authority, not inconsistent with the provisions of the Act, on the matters relating to telecommunication policy referred to in sub-section (2), and the Authority shall comply with such directives.

The provisions of the Federal Government to be able to issue [binding] directives, however, are exploited for overbroad content regulation, such as the case at hand: blocking access to news and social media websites.

The relatively newer cyber crimes law of Pakistan, officially named the Prevention of Electronic Crimes Act 2016, however, does have a section that empowers the Pakistan Telecommunication Authority to ‘remove or block access to an information’ based on qualifiers ‘copied’ from the Constitution of Pakistan.

The Section 37 reads:

37. Unlawful online content: The Authority shall have the power to remove or block or issue directions for removal or blocking of access to an information through any information system if it considers it necessary in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, public order, decency or morality, or in relation to contempt of court of commission of or incitement to an offence under this Act.

Although PECA 2016 allows the Authority to be able to remove or block access to ‘units’ of information online, there aren’t any legal covers, per se, that allows the Federal Government for such a national-level blackout of social media and news websites with an argument to maintain ‘local’ law and order, an action which is grossly inproportional and unnecessary. Legal experts believe that it ultra vires the mandate given in Section 37.

The action in question then required exploitation of overly broad provisions and to understand exactly what provisions or laws were exploited to cause the biggest information blackout in the history of Pakistan, Media Matters for Democracy filed an information request to the Pakistan Telecommunication Authority on 7th December 2017, asking for a copy of notification issued by the Federal Government ordering the suspension of social media and news websites.

Pakistan Telecommunication Authority never responded to the information request under the Right to Information law.

Getting no information through the means of RTI, Asad Baig [founder and the director] on behalf of MMfD served the Authority with a legal notice through Advocate Umar Gilani of the Law and Policy Chambers. The Notice prompted PTA to provide the details of the order issued by the Federal Government, and acknowledge that any executive order for the country-wide blocking of more than 30 popular news and social media websites, to counter a law and order situation that is local to one neighborhood, is a gross violation of principles of natural justice and necessity and proportionality and violates the Section 24A of the General Clauses Act 1897 [Excercise of Powers under Enactment].

No response was received from the Authority.

To further pursue this matter, and to get the action of the Authority [to takedown popular news and social media websites] declared illegal, Advocate Umar Gilani filed a petition in Islamabad High Court on 8th March 2018.

Islamabad High Court took up the petition on 13th March 2018 and in the first hearing, after a brief argument, Honorable Justice Aamer Farooq ordered the Respondents [Pakistan Telecommunication Authority, and the Federal Government] to submit written responses to justify their action i.e. the blackout of social media and news websites, within three week. The next hearing is expected in a month or so.

It’s important to note here that Advocate Umar Gilani, along with his colleagues and petitioners, is famed for getting the network shutdowns by the Federal Government declared illegal by Islamabad High Court through a public interest litigation. [Regardless of the claims, no evidence is available to show the efficacy of network shutdowns in averting law and order situations and/or terror incidents]

A bit shout out to Open Observatory of Network Interfearence, Digital Rights Foundation and Bytes For All, who in addition to Media Matters for Democracy, documented this incident and reports generally on the Internet censorship in Pakistan.