Cybercrime Bill: Misconceptions and realities
At present the only law dealing with the cyber crimes or computer related crimes in Pakistan is Electronic Transactions Ordinance 2002. However, the offences defined under this Ordinance are of very limited scope covering privacy of information and damage to information systems only. Whereas everyone agrees that there is a dire need of a law dealing with cyber crimes, the cyber crime bill has been delayed for last almost eight years for one reason or the other.
In 2007, Prevention of Cybercrime Ordinance 2007 was promulgated by the then President. However, this Ordinance could not get assent of the Parliament and therefore, another Ordinance was promulgated in 2009. Thereafter, the Ordinance was referred to the Parliament as a bill. However, due to fierce opposition from certain quarters and media campaigns the bill did not get the assent of the Parliament. People of Pakistan particularly and IT industry are suffering in absence of adequate cybercrime legislation. In absence of relevant law, cyber criminals are operating without any fear or accountability whereas due to absence of intermediary liability protection clauses, many big IT companies are reluctant to make investments in Pakistan.
The present government has now introduced a new bill on cyber crimes namely Prevention of Electronic Crime Bill 2015 (cybercrime bill). This bill was tabled before the National Assembly in January 2015. The bill was referred to the National Assembly Standing Committee for IT (NASC) which constituted a sub-committee comprising of MNAs and advisors to the Prime Minister. The bill was amended by the expert committee and presented to the NASC who while agreeing with the recommendations of the expert committee has approved the bill. The amended Bill will now be placed before the National Assembly for discussion and vote on it.
However, when the provisions of the bill are read together (as any law should be read) it appears that the bill not only defines cyber offences but also provides safeguards against any misuse or misinterpretation of the proposed legislation.
One provision that has raised most concern is section 9 that deals with glorification of criminals and persons accused of an offence. It is argued that an accused must be considered innocent unless proven guilty. Therefore, glorification of an accused cannot be termed an offence. Perhaps we forget that even the most developed countries, have laws regulating discussion of sub judice matters. Under Contempt of Court Act, 1981 of UK, mounting an organised campaign to influence judiciary concerning a sub judice matter amounts to contempt of court. Similarly, under Article 204 of the Constitution of Pakistan, Supreme Court and High Courts are empowered to punish any person who tends to prejudice the determination of a matter pending before the court. The offence under section 9 of the bill is non-cognizable that means no action can be taken for any alleged commission of such offence unless the court directs so. In our polarised society, it is already very difficult for courts to punish criminals. By allowing glorification of accused persons, we are not making job of our courts any easier. Under article 10-A of the Constitution, right to fair trial is available both to the accused as well as victim. Thus, if an accused is to be presumed innocent before proven guilty, he is also not to be glorified before acquittal.
Another provision in the Bill that is largely criticised is section 18 relating to dignity of natural person. Section 18 criminalises public exhibition of any false information which is likely to harm or intimidate reputation or privacy of a natural person. Some argue that under this provision any criticism on the working of the government officials may also be banned. It may not be correct as an identical provision relating to criminal intimidation is already available under section 503 of the Pakistan Penal Code. Moreover, any fair comment or opinion cannot be termed as false and should therefore, not fall within purview of this provision.
Similarly, provisions relating to cyber stalking, spoofing, spamming and unauthorised use of identity information have also been criticised. But should we, as citizens of Pakistan, not have right to privacy and be treated with fairness. For instance if one is being harassed through his facebook account, should he not have any remedy? If one is defrauded by establishing a fake website (cyber spoofing), should he not have any remedy? Should we not have any remedy against credit card frauds where our identity information is misused? If we should have remedies in such cases, then law has to declare such activities as offences. It also appears that the protections and definitions associated with these offences have not been considered and the text appears to be criticised out of context. Most of other countries have extensive legislations on these subjects whereas people of Pakistan are subjected to these exploitations without any legislative protection.
The power to block access to any online content given to PTA under section 34 of the bill has also attracted huge criticism. The said clause empowers PTA to block access to any content that violates Article 19 of the Constitution. Some critics have raised questions as to the vague language used in Article 19 of the Constitution. However, it needs to be understood that the terms used in Article 19 have mostly been defined under the Constitution and other laws including Pakistan Penal Code. The superior courts have given many judgments explaining the scope of Article 19. Therefore, it will not be possible for PTA to go beyond the defined scope of Article 19 of the Constitution. However, it will be a test for the government and PTA as how they frame rules under this section. Any rules framed under this section must provide objective criteria and fulfil requirements of fair trial. Similar clause also exists in Information Technology Act 2000 of India and laws of many other countries. Interestingly, under the Indian law this power has been given to their central government whereas under the proposed bill in Pakistan, this power is being given to the regulator. It is also noteworthy that PTA is already performing this function under the Telecom Act. Therefore, this clause should be considered as a restriction on exercise of such powers by PTA and not broadening its scope.
It is also encouraging to see that the bill contains intermediary liability protection clauses. It is hoped that with intermediary liability protection embedded in our laws, Internet platforms will feel comfortable in providing localised versions of their services such as YouTube for subscribers in Pakistan. Reportedly, intermediary liability protection was the basic demand raised by such intermediaries for having a localised version of their platforms. In Pakistan YouTube is blocked for more than last two years on the orders of the Honourable Supreme Court. The orders of Supreme Court were issued subsequent to uploading of a blasphemous movie on YouTube. It is interesting to note that an identical case also came up before Delhi High Court India (Maulana Mahmood Asad Madani vs Union Of India And others). However, as YouTube had its presence in India, the court ordered: “The respondents will ensure that on such a request being made by them to the concerned intermediaries such as Youtube (Google), to block the URLs, being used for showing the film in question, are immediately blocked by them. If there is non-compliance of such a requisition by the concerned intermediaries, the respondents will take action against the intermediaries in accordance with law.”
Section 79 of the Information Technology Act 2000 as amended in 2008-09 provided intermediary liability protection and Google India had a localised version of YouTube. Thus, YouTube complied with the laws of India and therefore, was not blocked in India. YouTube is localised in 75 countries of the world and Pakistan is not one of them. One can hope that once intermediary liability protection clause is put in place, YouTube may as well be localised in Pakistan and thus open for public use.
In view of the above, it appears that most of the criticism on the bill is misplaced and based on the apprehensions of misuse of the law. However, the bill has some built in safeguards that appear to be totally missing from ongoing debate. The bill specifically defines the terms used in the Bill for avoidance of any doubts. Moreover, the courts under the proposed law are to be appointed in consultation with the Chief Justice of respective High Court that will ensure autonomy of these courts. All the offences under the Bill, except for cyber terrorism and sexual exploitation, are non-cognizable which means that the investigation agency cannot take any action for such offences unless the court so orders on the complaint of an aggrieved person.
The bill also stipulates that the investigators, prosecutors and judges appointed under the proposed law shall have professional competence, qualification and training to deal with technical matters. However, it is for the government to ensure that the investigators, prosecutors and judges have adequate knowledge of cyber ethics as well in order to ensure their proper understanding of these issues.
Now, it is responsibility of the government and the standing committee to clarify any misconceptions regarding the proposed law and not let the process be derailed as we cannot afford any further delay in this regard. It is also responsibility of the opposition to objectively review the bill instead of engaging in score settling. If the cybercrime bill could not be passed previously, it is high time that it is promulgated into law now.