GENEVA (14 December 2015) – The United Nations’ Special Rapporteur on freedom of opinion and expression, Mr. David Kaye, recently shared with the Government of Pakistan his concerns with the draft Cybercrime Bill currently pending before the National Assembly. He is especially concerned that, if adopted, the draft legislation could result in censorship of, and self-censorship by, the media.
The Bill, as a whole, raises several concerns due to the vagueness of its provisions that provide limited guidance as to what would be prohibited under the law and impose excessive restrictions that would criminalize legitimate forms of expression. If adopted, the Bill would also set penalties that would be disproportionate to the infractions and could serve, in practice, to stifle the right to freedom of expression. The Bill would result in creating a deterrent effect, which may be used against the media to restrict the legitimate exercise of their work, especially when journalists investigate and report on particularly sensitive subjects.
There are also reports about the lack of open and comprehensive consultation with civil society and the private sector and the absence of genuine public scrutiny prior to the vote on the adoption of the Bill in the National Assembly, critical for democratic participation. Such debate and discussion may also promote the compliance of domestic legislation with international norms and standards.
Framework for Assessing the Cybercrime Law’s Impact on Freedom of Expression
The Government of Pakistan ratified the International Covenant on Civil and Political Rights on 23 June 2010. The Covenant, in particular Article 19, protects everyone from interferences with the maintaining of opinions and protects the right to seek, receive, and impart information and ideas of all kinds, regardless of frontiers and through any media. Any restriction on the right to freedom of expression should be narrowly defined and clearly provided by law and be necessary and proportionate to achieve one or more of the legitimate objectives of protecting the rights or reputations of others, national security, public order, or public health and morals, as provided in Article 19(3) of the Covenant.
Sections of Concern in the Cybercrime Bill
Sections of the Bill that cause concern from the perspective of the right to freedom of expression include at least the following:
Sections 3 and 4 of the Bill would criminalize the unauthorized intentional access to “any information system or data” and the unauthorized intentional copying and transmission of “any data.” Section 2(e) of the Bill defines “authorization” as including “authorization by law or the person empowered to make such authorization under the law.” As such, any person accessing or visiting a website in a way that is not expressly “authorized” may be committing a crime under sections 3 and 4 and could be imprisoned for a term between 3 to 6 months, or fined between 50,000 and 100,000 rupees or both. Section 9would criminalize anyone who “prepares or disseminates” any type of information, including those who threaten to do so, that would “glorify an offence or the person accused or convicted of a crime” and “support terrorism or the activities of proscribed organizations, which is authorized”. It would also criminalize the preparation or dissemination of information “through any information system or device” that would “advance religious, ethnic or sectarian hatred.” Section 10 defines “cyber-terrorism” as committing or threatening to commit any of the offences listed under sections 6, 7, 8 and 9 of the Bill, when there is intent to “create a sense of fear, panic or insecurity in the Government or the public” or to “advance religious ethnic or sectarian discord.” The penalty, for a person found guilty of this offence, carries a prison term of up to 14 years and/or a fine of up to 50 million rupees.
Although it is legitimate to protect information systems from unauthorized access, the wording of sections 3, 4 and 10, in particular, is very broad and, potentially, would effectively criminalize accessing, copying and transmitting of any information system or data. In their current form, sections 3, 4 and 10 could have a chilling effect on media activities in Pakistan, and would pose a serious threat to the ability of journalists to work freely, especially investigative journalists, whose work precisely consists of accessing information they are not authorized to access. These provisions could also seriously deter whistleblowers who, by definition, reveal information of general interest by transmitting data they are not authorized to access, copy or transmit.
Section 18 provides that anyone who “intentionally publicly exhibits or displays or transmits any false information, which is likely to harm or intimidate the reputation or privacy of a natural person shall be punished with imprisonment for a term which may extend to three years or with a fine up to one million rupees or both.” The drafting of section 18 is too vague and does not meet the requirements imposed under the ICCPR. In particular, the use of the word “likely” is problematic as it could have significant implications for individuals, including journalists, who could be prosecuted for transmitting inaccurate or partially inaccurate information that could, for example, affect the reputation of a public figure. The possibility of such a prosecution could restrict legitimate journalistic work, with a particular impact on investigative work, increasing further the risks of self-censorship, as well as restricting the right to access information.
Section 22 defines “spamming” as the transmission of “harmful, fraudulent, misleading, illegal or unsolicited information to any person without the express permission of the recipient.” The specific reference to “unsolicited” would make it a crime to send an email, photo or a text message, or post a photo or a comment on a social network, without the recipient’s prior consent. Anyone found guilty of an offence under this section may be punished with a fine of up to 50,000 rupees for the first offence and up to one million rupees, or a prison term of up to 3 months or both for subsequent offences.Section 22 would also criminalize satire, carrying a penalty of up to three years and/or a fine up to 500,000 rupees, or both. These provisions impose excessive restrictions on the rights to freedom of expression, far beyond those permitted under the ICCPR and as provided by the UN Human Rights Committee.
Section 29 provides that a service provider should “retain its traffic data for a minimum period of one year or such period as the [Pakistan Telecommunication] Authority may notify from time to time and provide that data to the investigation agency or the authorized officer whenever so required.” Relatedly, section 28 would appear to permit the “authorized officer” to require any person “to provide that data” or to ensure that the integrity of the requested data be preserved for a maximum of 90 days. Moreover, section 32 of the Bill bestows a number of wide-ranging powers on this “authorized officer”, which includes the ability to “have access to and inspect the operation of any specified information system” (para. a). It also allows the officer to “access to or demand any information, code or technology which has the capability of retransforming or unscrambling encrypted data contained or available to such information system into readable and comprehensible format or plain version” (para. d), in addition to requiring any person “who is in possession of decryption information of an information system, device or data under investigation to grant him access to such decryption information necessary to decrypt data required for the purpose of investigating any such offence” (para. g).
Sections 30 and 31 refer to warrants, which would be required for search and seizure, and disclosure of data, if the Court is satisfied that there are reasonable grounds to believe that such material “may be reasonably required for the purpose of a criminal investigation or criminal proceedings”. However, it seems from the draft legislation that a warrant would not be required to obtain access to an information system or a decryption key. Under section 32, the powers of authorized persons appear excessive and intrusive and constitute a significant threat to the privacy of citizens in Pakistan. They also constitute a threat to the work of journalists and the confidentiality of their sources.
Section 34 would empower the Pakistan Telecommunication Authority to order service providers to “remove any information or block access to such information 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, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court or commission of or incitement to an offence under this Act” (para. 1). This provision is overly broad and fails to include adequate safeguards for the protection of the rights to privacy and the right to freedom of expression. It bestows power on a statutory body or its authorized officer to block or remove any information from any website deemed inappropriate, without any oversight by a Court. In addition, it is unclear what is meant by the phrase “in the interest of the glory of Islam”, or what constitutes “decency and morality”, or how these are to be evaluated. With regards to disclosure of sensitive information, any exceptions to the right of freedom of expression should be narrowly defined and clearly provided by law and be necessary and proportionate to achieve one or more of the legitimate objectives of protecting the rights or reputations of others, national security, public order, or public health and morals.
The Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms. Special Procedures mandate-holders are independent human rights experts appointed by the Human Rights Council to address either specific country situations or thematic issues in all parts of the world. They are not UN staff and are independent from any government or organization. They serve in their individual capacity and do not receive a salary for their work. For more information, visit:
Freedom of expression: http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/OpinionIndex.aspx
UN Human Rights, country page – Pakistan:
http://www.ohchr.org/EN/Countries/AsiaRegion/Pages/PKIndex.aspx
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