Prevention of Electronic Crimes Bill 2016 – Implications for Investigative and Public Interest Journalism

Authored by: Sadaf Khan and Asad Baig

Abstract

PECB2016 stands to have devastating effects on the state of journalism in Pakistan. Over reaching powers accorded to regulatory bodies, whose mandate does not involve content management and extensive powers given to designated investigative agencies, will serve to make the journalist community and their sources vulnerable to abuse of power. This paper highlights the need for creating an exemption for investigative journalism that serves public interest and indicates areas of key concern for journalists.

1. About This paper

1.1 General Principle

Pakistan Action Plan for Human Rights, enacted by the Ministry of Human Rights in February 2016 aims to “enact appropriate laws giving effect to Pakistan’s international human rights obligations”. As a signatory of ICCPR, Pakistan is committed to protect the right of freedom of expression and the right to information.  This paper holds these rights as the corner stone of an effective and functional democracy and seeks to ascertain the fact that these rights, by creating the space for quality, public interest journalism in a country, allow journalists and media to serve their democratic function and act as the fourth pillar of the state.

PECB2016, in its current form remains a threat to journalistic endeavours. In addition to defying Pakistan’s own rights’ related goals, the Bill also goes against the spirit of Sustainable Development Goal 16.10, that seeks to “ensure public access to information and protect fundamental freedoms” and recommends the “adoption and implementation of constitutional, statutory and/or police guarantees and mechanisms to public access to information” and the “implementation of the UN Plan of Action on the Safety of Journalists and the Issue of Impunity”.  Ensuring public access to information and building mechanisms for public access in any country is not possible without the presence of a robust, independent and active media.

This paper outlines the implications of Prevention of Electronic Crime Bill, 2016 on journalistic endeavours, specially those of an investigative nature that depend upon the availability of data that is not generally made public by state departments. The paper looks at the manner in which different articles of PECB2016 can come to have an impact on availability of information and freedom of expression, essentially having an impact on journalism in the country. The paper also seeks to contextualise how PECB2016 adds to the vulnerability of journalists, who are already one of the most heavily targeted communities in Pakistan. It also highlights how the Bill collides with certain fundamental rights like that of privacy that are inherent to the practice of quality journalism.

1.2 Purpose of this paper

This paper has been drafted to seek support from the Senate of Pakistan, particularly members of the Senate sub committee on Information Technology and Senate sub committee on Human rights, towards ensuring that this legislation does not compromise the citizen’s rights of an independent media that can ensure accountability for those who threaten public interest, without the fear of persecution or prosecution. The paper also outlines a set of principle-based recommendations, to ensure protection for journalism and journalists and seeks support from the senators reviewing the Bill towards ensuring that media’s democratic function is not compromised in the name of controlling cybercrime.

2. Introduction and Context

The process of drafting and the content of Prevention of Electronic Crime Bill 2016 have attracted criticism from National and International quarters since late 2014. The Bill, drafted within the national security frame, compromises multiple constitutional rights under the excuse of curbing cybercrime. The Bill has serious implications for freedom of expression and right to information; rights that are vital for the sustainability of quality journalism in any country. The United Nations Special Rapporteur on Freedom of Expression, David Kaye, released a statement expressing concern over the Bill stating that “if adopted, [PECB2016] could result in censorship of, self-censorship by the media”. 

In addition to David Kaye, other international human rights groups including Amnesty International, Human Rights Watch, Article 19, Transparency International, Association for Progressive Communications, local human rights organizations including Media Matters for Democracy have expressed concerns publicly and through the media. The media, that stands to become one of the biggest targets of this Bill, has engaged in a rigorous debate over its implications but has not been recognized by the government as a key stakeholder. In fact, following public resistance a consultation with civil society groups was held by the National Assembly’s sub committee on Information and Technology but journalist unions and representative bodies were completely ignored in this consultation.

So, despite having a direct stake in the Bill, journalists have been forced to comment on the proceedings from a distance, and have been denied a direct say in the development of the Bill. Not just that, the media has been deliberately misled at multiple points by dirty tactics. The day 30 members of the National Assembly passed this draft, without any regard for the quorum, journalists were deliberately handed out an obsolete document containing a previous draft and comments from the Minister. The actual draft of the legislation was not made public for the next three weeks.

Such tactics reflect ill intention on the part of the ruling party and makes it essential that the Senate, that is now in charge of this Bill, ensures that the rights violations inherent in this draft and the impediments created for journalistic activities are rooted out.

3. PECB2016 and Journalism

This section highlights the areas and articles includes in PECB2016 that can have serious implications for journalists, specially those journalists who seek information related to government’s own conduct that is not easily available in the public domain. It also highlights how this Bill adds to the condition of vulnerability within which the Pakistani press is operating.

The key areas of concern are as follows;

3.1 Access to Information

Journalism is the practice of bringing information to people and investigative journalism relies on reporter’s ability to access information that is usually hidden from the public domain. PECB2016 includes multiple sections that would have a direct impact on reporter’s ability to secure such information and would in fact criminalise investigative journalism endeavours.

Definitions and Sections related to access to information

The Bill defines access to data as “gaining control or ability to read, use, copy, modify or delete any data held in or generated by any device or information system”. Combined with the definitions of device and information system (as defined in this Bill), this expands to include gaining access to anything in a digital format.

Section 3 of the Bill dealing with unauthorized access to information system or data states that “whoever with dishonest intention gains unauthorized access to any information system or data shall be punished with imprisonment for a term which may extend to three months or with fine with may extend to fifty thousand rupees or with both”.

Section 4 regarding unauthorized copying or transmission of data states “Whoever with dishonest intention and without authorization copies or otherwise transmits or causes to be transmitted any data, shall be punished with imprisonment for a term which may extend to six months, or with fine with may extend to one hundred thousand rupees or with both”.

The qualifier of dishonest intention has been defined as “intention to cause injury, wrongful gain or wrongful loss or harm to any person or to create hatred”. By using the vague indicator of creating hatred, the definition has been made extremely subjective and open to interpretation.

In addition to these clauses, Section 6 and Section 7 identify harsher punishments of up to three years imprisonment and a fine of one million rupees or both and up to five years of imprisonment or a fine of five million rupees or both, if the data accessed or copied is related to critical infrastructure. The critical infrastructure definition includes two sub sections, with the second one stating that critical infrastructure includes “any other private or Government infrastructure designated by the Government as critical infrastructure as may be prescribed under this Act”. This sub section, actually expands the scope of what would be considered critical infrastructure and gives the federal government the power to define anything as critical depending upon their own interpretation.

Section 19, offences against modesty of a natural person and minor, deals largely with creation and distribution of material that morphs images/material in a sexually explicit manner. While the section touches upon various important areas that require legislation in also says in Section 19(3) that whoever procures for himself or another person or intentionally possesses material in an infromaton system that visually depicts

  1. a minor engaged in sexually explicit conduct;
  2. a person appearing to be a minor engaged in sexually explicit conduct; or
  3. realistic images representing a minor engaged in sexually expolicit conduct

shall be punished with imprisonment for a term which may extend to seven years, or with fine which may extend to five million rupees or with both.

Impact on journalism

Taken together the identified sections stand to criminalise any journalistic endeavours that seek to gain access to government or private data that is not in the public domain, regardless of the fact that its disclosure might be necessary to expose misinformation, malpractices or corruption within the government machinery. The Bill does not have a public interest or journalism exception, which means that after the enactment of this Bill, investigative journalists could face criminal charges with harsh punishments.

The Panama Leaks are a prime example of a story that depends upon gaining unauthorised access to a database maintained by a private company, whose exposure that led to political changes across the world. If such a leak were to happen from Pakistan and a local database was thus accessed and exposed while the PECB was in effect, the journalists involved in the leak could easily be charged with criminal offences.

First, under the bill it would be possible to prove dishonest intention by saying that the leaks have created hatred against the sitting Prime Minister. Using the same reasoning, the database might be termed critical by the government under section j(ii) and there by the journalists and their sources involved in accessing and making public such information could technically face charges under Section 6 and 7 of PECB2016, facing a possible sentence of five years imprisonment and/or fifty million rupees fine.

It is also important to bear in mind that Section 6 and 7 can both also be read with Section 10 dealing with Cyber Terrorism that criminalizes those who even threaten to commit any offense under section 6,7,8 or 9 with intent to create insecurity in the government. The punishment for cyber terrorism is up to fourteen years and a fine of up to fifty million rupees.

Regarding Section 19, it is commendable that the government is criminalizing production and procurement of child porn; however, the clause regarding procurement might become problematic in the absence of public interest/journalism exception. For example, the incidents of child abuse in Qasoor and Swat might not have been exposed if journalists had not been able to procure and verify the videos depicting child abuse. To eliminate this possibility, the language needs to be tightened to ensure that if a journalist is trying to gain access to such material, for the sake of exposing abuse, it is essentially an act in public interest and should not be criminalized.

There are no laws providing protection for whistle blowers in Pakistan, and thus this Bill will also make journalists’ sources vulnerable to criminal charges.

3.2 Restrictions on Expression

PECB2016 also includes multiple sections that can have an impact on journalistic expression and could also criminalise political satire. It is important to note that some sections that can possibly effect freedom of expression of journalists and media personal deal with important issues on which regulation might be necessary, however, the problem with this Bill is the inclusion of wide, vague and subjective terminology that and overreaching powers accorded to investigative/regulatory agencies and officers without proper oversight mechanisms.

Definitions and Sections related to expression 

Section 9 of PECB2016, Glorification of an offence and hate speech states that “Whoever prepares or disseminates information, through any information system or device, with the intent to glorify an offence and the person accused or convicted of a crime relating to terrorism or activities of proscribed organisations shall be punished with imprisonment for a term which may extend to five years or with fine which may extend to ten million rupees or with both”. The term glorification includes depiction of any form of praise or celebration in a desirable manner.  Again this Section can also fall under Section 10, Cyber Terrorism.

Section 18, Offenses against dignity of a natural person deals with defamation and states 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 a term which may extend to three years or with fine which may extend to one million rupees or with both”.

In this section, an exception has been provided for material aired by broadcast media under a PEMRA license. However, when the licensee shares the same material online, PECB2016 will obviously come into effect. In essence then, the same material would be treated in a different manner with the change in distribution medium.

Impact on journalism

Frank La Rue, Assistant Director General for Communication and Information, and former UNSR on Freedom of Expression states “glorification fails to meet the legality under human rights law”. In countries like Turkey, that are notorious for restricting expression on internet, glorification of crimes has been used as an excuse to restrict journalism and journalists. In Pakistan, we have seen the government use the excuse of ‘glorification’ to restrict media to sharing one-sided views and perspectives on security related incidents. As a result, terrorist organisations have conducted a series of attacks on media houses, saying that the attacks are a result of the media following National Action Plan and refusing the air their perspective. In practice, we can take the recent example of Mumtaz Qadri’s funeral, which was not properly covered by the media following advisories from the government.

There is an obvious need to ensure that the coverage of such incidents is done with responsibility. However, this section comes very close to banning any narrative on such incidents as even coverage / discussion on issues like Qadri’s hanging would encourage at least some comments that praise or glorify his actions. This extremist mindset is unfortunately a part of our society and as depicted by the hundreds of thousands of people who participated in Mumtaz Qadri’s funeral, simply not talking about the fact will not solve the problem. The social media remained the main source of information for people regarding the funeral – technically, showing the throngs who participated in his funeral and prayed for him is praise, celebration and coverage in a desirable manner and thus punishable under this law. However, the reality out on the streets cannot be denied and criminalising coverage of incidents that depict how our society is glorifying extremists and terrorists goes against the spirit of journalism.

Section 18, deals with a theme already dealt with in Article 499 of Pakistan Penal Code and also in Defamation Act 2004. The Defamation Act includes a list of defenses including “offer to tender a proper apology and publish the same was made by the defendant but was refused by the plaintiff” and “an offer to print or publish a contradiction or denial in the same manner and with the same prominence was made but was refused by the plaintiff”.  Limitation of actions has also been defined in the Defamation Act 2004. All of these have been completely overlooked in PECB2016 and a short cut has been provided to criminalize digital publication of defamatory material.

This section also creates the space for criminalizing journalists who might be using the internet to seek clarification or additional information on unconfirmed news stories or leads.

Another concern for expression might occur under Section 10, Offences against the modesty of a natural person and minor discussed in the previous section. The section again lacks a public interest and a journalism exception and so, if a news website or digital platform is used to break a story that exposes a sex scandal related to those in power (like Monica Lewensky scandal that was exposed by media in Clinton’s era) or exposes sexual abuse by a person in power, Section 10(b) in PECB2016 can effectively be used to criminalise such exposes.

3.3. Censorship

PECB2016 also creates the space for unchecked censorship and content management on the internet. The issue of censorship has a multifold effect on journalistic endeavours; first it might lead to blocking and censoring of journalistic pieces that agitate the government in one way or another and secondly the government might block access to political or other content it deems harmful without offering explanation and that would have an impact on data and information gathering for journalism.

Definitions and Sections related to censorship 

Section 34 of PECB2016 titled unlawful online content states “the Authority shall have the power to remove or block or issue directions for removal or blocking of access to any information through any information system if it considers it necessary in the interest of the glory of Islam or the integrity, security or defense of Pakistan or any part thereof, public order, decency or morality or in relation to contempt of court or commission of an incitement to an offense under this Act.

Impact on journalism

This section gives unlimited powers to the ‘Authority’ to manage online content.  Section 34 directly borrows the language from Article 19 of the Constitution of Pakistan. Currently, the authority to interpret constitutional articles lies only with the Supreme Court of Pakistan. Through this section, the government has effectively given the SC’s authority to an executive body that reports directly to the Ministry of Information and Technology i.e. the Federal Government. This is a blatant violation of citizen’s rights and can have a direct impact on both access and expression by journalists.

For example, after the Mina Stampede this year (2015), TV channels received an SMS from PEMRA reminding channels not to air anything that can have an effect on Pakistan’s relations with friendly states. By introducing similar terminology in Section 34, the government has created the space for censoring any unwanted political/other comments or stories under the pretext of security, defense, decency, morality or the like.

Despite quoting from a constitutional article, this clause constitutes and overarching transference of power to an executive body, making it the judge, jury and executioner without evoking the due process of law. Under this section, the government could very easily ban ICIJ website citing the political havoc created by the Panama leaks as an excuse for the clampdown.

More dangerous is the fact that PTA is not in the habit of releasing any information about the websites it bans. MMfD and other organisations have filed multiple RTI petitions to seek information on the current list of banned content and have received no response. Thus, this section remains extremely dangerous for journalists who might see their stories and their sources of information banned without explanation, prior information or a way to seek redressal and appeal against the decision.

3.4. Potential for abuse of power

Journalists in Pakistan remain a vulnerable community. The community faces direct attacks, harassment, intimidation and coercion at the hands of various groups and actors. PECB2016 includes various sections that give undue and unchecked powers to designated agencies and its officers.

Sections enabling abuse of power

Two main sections can be concerning for journalists;

Section 28 expedited preservation and acquisition of data defines conditions for acquisition of data “reasonably required for the purposes of criminal investigation” and states that if there is a “risk or vulnerability that data may be modified, lost, destroyed or rendered inaccessible, the officer may, by written notice given to the person in control of the information system, require that person to provide that data”. The section goes on to say that the officer shall immediately but later than twenty four hours bring to the notice of the Court, the fact of acquisition of such data”.

Essentially, this section removes the requirement of obtaining a warrant from the court for search and seizure and data acquisition.

Section 36, real-time collection and recording of information legitimizes real time surveillance on the basis of reasonable grounds and on obtaining permission from a court [as defined under this law].

Sections enabling abuse of power

A number of other sections also deal with the issue of search and seizure, data acquisition and sharing, however, the two indicated above remain the most problematic.

First, removing the need to obtain a search and seizure warrant and granting an officer the authority to seize data from digital devices can create the way fro extensive abuse of power. Given the fact that journalists are routinely harassed and intimidated by state forces, this Bill can come to present yet another legalized way of harassment. Recently, New York Times correspondent Salman Masood’s house was raided by rangers, claiming to look for evidence related to terrorism under the ATA. Previously, journalists like Faheem Siddiqui have faced detention and confiscation of mobile devices. With such incidents as example, PECB2016 does not bode well for journalists, who might now have to face officers who have legal authority to search their devices and access/copy data that might expose their sources or compromise their stories.

Similarly, real time monitoring means obtaining access to devices in real time, which means that all activity being carried out through that device whether of a personal or professional nature would be accessible to the investigative agency. It is important to note that in this section the investigative agency that would conduct real time monitoring is the one notified under the Fair Trail Act. The Fair Trail Act details a comprehensive procedure before a warrant for real time surveillance can be issued [See Sections 10, 11, 12, 13 and 14 of Fair Trail Act] and designates the High Court as the relevant Authority. PECB2016 removes that detailed procedure and gives a trial court the authority to issue warrants for real time surveillance without the set conditions.

Journalists in Pakistan have already complained of both digital and physical surveillance. This bill creates the space for immense abuse of power by making the procedure to legitimse this intrusive investigation tactic extremely easy.

4. Recommendations

To ensure that PECB2016 does not adversely affect journalistic endeavours in Pakistan it is recommended that the government, specifically the senate’s sub committee on information and technology;

  1. Reviews and redrafts the Bill to remove sections that threaten constitutional rights of the citizens
  1. Includes a public interest and journalism exception and defence within the text to create the space for public interest, journalistic endeavors. An example of such defense can be found in British Virgin Islands’ Cyber Crime Law that enabled Panama Leaks to happen legally. 
  1. Creates the room for whistle blower protection so as to protect journalists’ sources
Asad Baig

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