Media Matters for Democracy finds the recently notified Social Media Rules concerning; maintains they are ultra vires

October 16, 2021 – Media Matters for Democracy (MMfD), finds the recently notified draft of Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguard) Rules concerning and maintains that despite rounds of consultation, the ‘amended’ Rules have failed to address majority of concerns that had been raised in the previous version.

Even in the current state, the Rules, commonly referred to as the Social Media Rules, continue to imperil citizens’ privacy and freedom of expression, and risk their fundamental civil liberties in online spaces. Civil society, journalists and the technology sector have contested the legitimacy and the efficiency of the Rules since the first draft was made public and the Rules have been challenged by multiple petitioners in Islamabad High Court.

A comparison of the recently notified Rules with the previous ones shows only minor changes, demonstrating that the concerns raised in multiple rounds of consultations with the stakeholders have been largely ignored.

We remain concerned that despite the fact that multiple legal experts shared arguments demonstrating that the Rules were ultra vires the parent Act, i.e. the Prevention of Electronic Crimes Act (PECA), 2016, most of the same provisions have been retained in the amended version. For example, the Rules still demand that the service provider, social media company and significant social media company provides any information or data or content or sub-content “in decrypted, readable and comprehensible format or plain version’, an obligation that does not just directly imperils citizen’s right of privacy but violates PECA’s own procedure of data acquisition, that requires a court warrant to be issued in order to acquire this information. We reiterate that the Rules give powers reserved for the courts to the PTA, and hence are ultra vires.

We remind the government that even in their amended form, the Rules open room for the Authority to use them beyond the scope of Section 37, under which the Rules have been made, that only regulates unlawful online content. The Rules further empower the PTA to determine what constitutes ‘unlawful’; we remind the government that such powers to a regulatory body may lead to potential violation of Article 19 of the Constitution of Pakistan.

We have raised concerns over the procedure that has followed the drafting of these rules since the beginning; from the secrecy around the initial drafts, reported ambiguities around initial legislative processes and now the lack of transparency regarding the reasons behind disregarding most of the civil society recommendations for improvement, the government continues to take decisions that are questionable and concerning.

We maintain that there is an urgent need for mechanisms for protection against radicalisation, hate speech and incitement, exploitation of children and similar threats that exist in the digital spaces. However, the mechanisms to counter these threats can only be effective if they are created through processes and policies that do not leave gaps for exploitation. Mechanisms to counter content aimed at promoting radicalisation, extremism, terrorism or exploitation of children can only be effective if created through proper legislative channels and in meaningful and sincere consultation with key stakeholders. Thus, we call upon the government to ensure transparency in its consultative process and ensure that any law or policy is not drafted in a manner that leaves room for the abuse and misuse of law.