Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
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The Islamabad High Court of Pakistan held that Pakistan Telecommunications Authority (PTA) was exclusively vested with the powers and jurisdiction to block content on the Internet, which was to be conducted independently and uninfluenced by any instruction issued to it by the Federal Government. The petition was submitted by Bolo Bhi, a non-profit organization, as part of their advocacy in defence of internet access, digital security and privacy, government transparency, freedom of speech and information and gender rights. The Court reasoned that Section 37 of the Prevention of Electronic Crimes Act, 2016 vested the PTA with the legal authority to remove or block access to internet content. The Court also found that the PTA is an independent body; as such, any direction issued by the Federal Government regarding internet censorship is not binding on the Authority.
The May 25, 2018 Petition arose following a series of interim orders from the Islamabad High Court and statutory developments outside of the Court.
The petitioner in this case was Bolo Bhi, a non-profit organization, recognised under the Societies Act 1860 and geared towards research and advocacy regarding internet access, digital security and privacy, government transparency, freedom of speech and information and gender rights. Bolo Bhi filed their petition in conjunction with their General Secretary, Ms. Farieha Aziz, a journalist and advocate for freedom of speech and information.
The first Respondent was the division of the Federal Government of Pakistan vested with the authority of the Pakistan Telecommunication (Reorganization) Act, 1996 (“Telecom Act”). The second Respondent was the Inter-Ministerial Committee for Evaluation of Websites (“IMCEW”), constituted under the “Impugned Notification” on August 29, 2006. The Committee was constituted to issue directives for blocking access to online content and websites available via the Internet in Pakistan. The third and final Respondent was Pakistan Telecommunication Authority (“PTA”), established under Section 3 of the Telecom Act and mandated to regulate the establishment, maintenance and operation of the telecommunication system in Pakistan. The IMCEW provides directives to the Federal Government, who issues “policy direction” to the PTA to block websites.
On December 12, 2014, Bolo Bhi filed a writ petition (W.P. No. 4994) to the Islamabad High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan. The petition challenged the legality and constitutionality of the IMCEW and PTA to block Internet content. The petition arose following their Freedom of Information Request, filed under the Freedom of Information Ordinance 2002, to obtain the “Impugned Notification” that constituted the IMCEW. The request revealed that the stated purpose for constituting the IMCEW was to formalize a procedure for blocking online content in Pakistan. The committee was also given a mandate to determine which websites are found to be “offensive”, “objectionable” or “obnoxious” under its own accord or via requests made by intelligence agencies and ministries. However, the PTA had failed to develop a criteria and procedure for doing so since its constitution in 2006, nor publish any public record of their meetings, while continuing to block online content. Following these findings, Bolo Bhi argued in their writ petition that the Impugned Notification, the internet censorship regime established pursuant to it and the actions of the Respondents aimed at regulating, blocking and censoring internet content and access to it was arbitrary, illegal and unconstitutional.
On December 15, 2014, the Islamabad High Court issued an interim order for the IMCEW to cease to provide “any direction for blocking a website without approval of this Court.” The respondents were also directed to “place on record details of the websites, which have been directed to be blocked in the last three years” along with the “record of the meetings held.” [Order Sheet 15-12-2014, para. 4]
On January 20, 2015, the Islamabad High Court modified their earlier interim order, permitting the PTA exclusively to take action to block Internet content from any complaint made to it, “strictly in accordance with law.” Furthermore, any decision made by the PTA must be accompanied by a report “explaining the reason for regulating any particular site.” [Order Sheet 20-01-2015, para. 2]
On December 12, 2015, the Federal Government issued the Telecommunications Policy, 2015, pursuant to which management of content on the internet was granted to the PTA. Furthermore, on August 19, 2016, while the petition was still pending, the Pakistan National Assembly enacted the Prevention of Electronic Crimes Act, 2016 (“PECA”). Section 37 of this Act provided the PTA with the authority 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 or commission of or incitement to an offence under this Act.” [Section 37(1) PECA 2016]
Judge Athar Minallah wrote the opinion of the Islamabad High Court.
The issue at stake before the Court was whether the IMCEW and the PTA had the legal power to block Internet content in Pakistan. The Court first noted that the Impugned Notification that constituted the IMCEW, challenged by Bolo Bhi under Article 199 of the Constitution, had been withdrawn while the case was ongoing. Furthermore, the Court referenced Section 37 of the Electronic Crimes Act, which provided the PTA with the “exclusive power to decide matters relating to removal or blocking of access to any information through any information system.” [para. 3] As such,the IMCEW was disbanded and its authority was no longer at issue before the Court.
In their written arguments, Bolo Bhi claimed the assumption of authority by the PTA to regulate internet content was ultra vires, or beyond the scope, of Article 19 and 19-A of the Constitution, regarding the right to free speech and information, respectively. They also submitted that the Federation of Pakistan has no authority to regulate internet content under the Telecommunications Policy of 2015 or PECA. The petitioners argued that the transitory or unregulated power granted to the PTA via Section 37 of PECA should not be abused or extended to enable internet censorship for an indefinite period. Bolo Bhi also submitted that, as a regulator, the PTA should be under no obligation to abide by a policy directive of the Federal Government.
In response to Bolo Bhi’s petition, the Court held that section 37 provides for only a “transitory arrangement” between the PTA and the Federal Government, and any direction issued by the latter not consistent with the provisions of PECA is “not binding on the Authority.” [para. 4] As such, the decision as to whether or not to block Internet content is under the “exclusive domain of the Pakistan Telecommunication Authority under subsection (1) of section 37 of the Act of 2016.” [para. 4] In support of its decision, the Court cited two passages from “the celebrated treaties by De Smith”: “a discretion must be exercised only by the authority to which it is committed,” who must not “act under the dictation of another body.” [para. 5] Judge Athar Manillah referenced the case of M.A. Rahman Versus Federation of Pakistan and others [1988 SCMR 691], which held that “the authority must genuinely address itself to the matter before it and must act in good faith, and have regard to all relevant considerations.” [para. 6] In consideration of the De Smith treaties, quoted in the case of M.A. Rahman, the Court concluded that the PTA “is exclusively vested with the power and jurisdiction to decide all matters” relating to removing Internet content, independent of any Federal Government influence. [para. 7]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case does not necessarily restrict or expand the current status of freedom of expression in Pakistan. The preliminary issue from which this matter arises is the constitutionality and legality of the powers exercised by executive bodies with regards to content on the Internet. However, this case in many ways can be viewed as a positive move forward for freedom of expression in Pakistan because it clarifies the regulating body within Pakistan.
Further, the case clarifies the scope of power entrusted to the authority. The authority is “exclusively vested with the power and jurisdiction to decide all matters” and it has to do so in an independent manner and without the interference of the directions of the Federal Government.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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