The ‘overly broad’ definition of disinformation in Pakistani law, coupled with the increased enforcement authority of centralized government agencies, leads to the possibility of such laws being used to censor media contrary to the freedom of expression guarantees under the Constitution of Pakistan, stated the report published by a civil society organization, “Bolo Bhi.”
According to the findings of the report regarding Pakistan's regulatory response to disinformation in view of the general elections scheduled to take place on February 8, 2024, current and proposed legislation infringes on the freedom of expression of all Pakistanis and thus violates international human rights standards.
The report stated that disinformation poses a significant threat to political participation, social discourse, and democracy in countries across the globe. The spread of disinformation online creates problems regarding access to credible information, political polarization, manipulation of social media, trust in the news media, the circulation of incorrect health information, and hate speech. However, while disinformation is a serious threat, government efforts to address it can impair the fundamental human right to free expression, as guaranteed by the Constitution of Pakistan and international human rights law.
This is particularly true if laws are crafted to define disinformation in a manner that captures legitimate political dissent and critiques of the government or public officials, it added.
The report highlighted, “Although disinformation is not new, the speed and efficiency with which new communications technologies, especially social media, can spread disinformation pose significant challenges to our ability to find reliable information online.”
While mentioning the challenges of regulating disinformation, the report suggested that, while disinformation on the internet undoubtedly causes harm, governments must take great care in attempting to regulate it. It stated that governments often struggle to define disinformation in a way that draws a clear line between harmful disinformation and protected expression.
“Laws that define disinformation too broadly can allow government actors to censor individuals who are exercising their right to free expression. There are particularly strong concerns about laws targeting disinformation being used to silence political dissent or critical coverage of government officials and policies by the media. These concerns are heightened in the lead-up to elections, when the free flow of political expression is especially important, the report stated.
The report stressed that the Constitution of Pakistan protects the right to free expression, as Article 19 of the Constitution of Pakistan states that "every citizen shall have the right to freedom of speech and expression." Article 19A adds that every citizen "shall have the right to have access to information in all matters of public importance." Any restrictions on the right to freedom of expression must be "reasonable" and in service of a goal specified by the Constitution.
“The Supreme Court of Pakistan has interpreted "reasonable restrictions" in a forward-looking manner to promote tolerance, freedom, equality, democracy, and social justice. Furthermore, the Supreme Court has ruled that freedom of expression protects information and ideas that may not be favorably received by the state. These strong constitutional protections for free expression bar the government from crafting laws targeting disinformation that would permit the suppression of political dissent,” it added.
While highlighting flaws in the currently enacted legislation in Pakistan that targets disinformation, the report stated that the Pakistan Electronic Media Regulatory Authority (Amendment) Bill (PEMRA Amendment), passed in August 2023, regulates disinformation in a highly problematic manner.
“This amendment expands the definition of disinformation beyond the generally accepted definition by the United Nations,” it added.
The report stated, “Proposed measures regulating disinformation include the Prevention of Electronic Crimes Act Amendment (PECA Amendment), the 2023 Removal and Blocking of Unlawful Content Rules (RBUCR), and the E-Safety Bill.
“The proposed PECA Amendment would make two important changes to the regulation of disinformation. First, Section 20 would make it a criminal offense to spread "fake or false information." For purposes of the offense, fake or false information is defined as any information that someone "knows or has reason to believe to be false or fake" and is "likely to cause or create a sense of fear, panic, disorder, or unrest." Second, Section 37 of the proposed PECA Amendment grants the Pakistan Telecommunications Authority (PTA) power to remove additional "unlawful online content," and it expands this to information that either "incites or is likely to incite" the public to take the law into their own hands or "contains aspersions against the judiciary or armed forces of Pakistan." These provisions empower the PTA to require social media platforms to remove content, which has the effect of allowing the PTA to unilaterally make decisions on what content is unlawful,” it added.
According to the report, “the dangers such provisions pose are exemplified by the recent creation of a Joint Investigation Team (JIT) pursuant to Section 30 of PECA to investigate a 'malicious social media campaign’ against the Supreme Court justices who set aside the Peshawar High Court's order reinstating the PTI's electoral symbol ahead of the elections on February 8.”
Section 28 of the E-Safety Bill (which received principal approval by the Federal Cabinet in 2023 but was not passed into law) aims to foster and promote safe online social network platforms and outlaws content that is "against Islamic values and the ideology of Pakistan" and "anything against the integrity, security, and defense of Pakistan."
This law is concerning because it hinders the ability of journalists to report on stories that are critical of the government and its actions and for citizens to express views critical of the government, the report read.
While shedding light on the implications of Pakistan’s enacted and proposed legislation, the report stated that Article 19 of the Constitution of Pakistan requires restrictions on free expression to be lawful and reasonable. A lawful restriction is clearly specified and achieves a purpose permitted by the Constitution. Reasonable restrictions must be necessary to achieve the government's aims as well as proportionate, meaning they are no more burdensome than necessary. Both the PEMRA Amendment and the proposed PECA Amendment fail to meet these standards. Not only are the definitions of disinformation and unlawful content overly broad in both laws, but the harsh punishments—including prison sentences and exceedingly high fines—make the restrictions unreasonable.
Allowing PEMRA and the PTA to unilaterally suppress certain types of expression, including political dissent, under the guise of stopping disinformation, violates Article 19 of the Constitution. These problems are amplified by the proposed E-Safety Bill's definitions of “prohibited content,” which bans media content critiquing the “ideology” and “integrity” of Pakistan. Correspondingly, those who wish to speak out about issues of public concern in the media—including journalists, opposition politicians, and members of minority communities—face serious risks of criminal prosecution for attempting to share constitutionally protected forms of expression with the Pakistani people. Neither law permits judicial review of such actions by PEMRA nor the PTA. The increased authority to censor and punish journalists is especially concerning given the tensive history of censorship and violence in Pakistan, it added.
The report concluded, “Pakistan's current and proposed legislation regarding disinformation is inconsistent with the international human rights treaties that bind our government.” Furthermore, similar laws regulating disinformation in other countries have been criticized for improperly restricting freedom of expression as outlined in international human rights law, it added.
The report stated that Pakistan's disinformation laws are not consistent with the protections granted to the right to free expression by Article 19 of the International Covenant on Civil and Political Rights (ICCPR). The ICCPR is an international human rights treaty ratified by Pakistan and 172 other countries. Parties to the ICCPR have a legal duty to protect a range of civil and political rights, including freedom of expression, which is defined as the “right to seek, receive, and impart information and ideas of all kinds.".
“As more and more Pakistanis turn toward online and broadcast sources for news on the upcoming election, it becomes vital to protect free expression, especially for journalists. This is particularly concerning because there appears to be a pattern of the Pakistani government selectively enforcing such disinformation laws against journalists and political dissidents. In the lead up to the 2018 general election, laws that were aimed at stopping disinformation were used to prosecute journalists engaging in legitimate news coverage of the military and judiciary,” it stated.
The PTA has since continued this pattern of selective enforcement, recently blocking 315 websites with "anti-state content" and 942 websites with alleged blasphemy against Islam. These concerns are even more pressing given that Pakistan recently faced a nation-wide disruption to social media and internet services, allegedly caused by the government, in the run-up to an online campaign event organized by the opposition party led by former Prime Minister Imran Khan.
The broad and vague language of the PEMRA Amendment, PECA Amendment, and the E-Safety Bill further enables the Pakistani government to selectively apply the laws to those whom they wish to silence by criminalizing speech that does not fall within the UN's definition of disinformation, it stated.