It’s been almost a year since the country was in uproar over the anti-Islam film ‘Innocence of Muslims’ – but the after effects remain, particularly manifest in the YouTube ban.

Pakistan is not the first or only state to restrict or to seek restriction on internet use: Recently, Turkish Prime Minister Tayyip Erdogan recently made waves after decrying the use of Twitter as ‘the worst menace’ for Turkish society, which is currently experiencing a state of deep civil unrest.

In Pakistan, however, the chaos over ‘Innocence of Muslims’ has long since died down. The struggle for lifting the ban on YouTube, on the other hand, continues slow and steady. Activists have challenged the ban in the Lahore High Court (LHC), and proceedings show promise of resolving the blanket ban while also serving as an arena to discuss the increasing importance of digital rights.

Bytes For All, a non-profit organisation, has challenged the government’s decision to prohibit access to YouTube. Justice Mansoor Ali Shah has taken up the case and asked members of academia and non-profit groups, like BoloBhi, to serve as “amicus curiae” or “friends of the court” by providing their input in the matter. During the most recent hearings, the Court also heard statements from representatives of the Federal Ministry of Information Technology and the Pakistan Telecommunication Authority (PTA).

The government representatives argued that they wished to avoid a blanket ban on the access to YouTube, which is why they requested that YouTube remove links for the offensive movie’s clips. They asserted that a previous request to Facebook resulted in Facebook blocking or removing certain images and videos on its site. In addition, Google, the owner of YouTube, also restricted access to the Innocence of Muslims video after requests from Indonesia, Egypt, Libya, India, and Brazil – but they did not respond to the Pakistani government’s requests.

Why did Google deny Pakistan’s request?

The government officials requested that Google incorporate in Pakistan (that is, register as a local company owned by Google's global holding company) and appear before the court as a party to the proceedings to explain its decision, at minimum. However, Google has not incorporated in Pakistan because the laws do not allow for intermediary liability protection – which means that Google could be liable for material posted on its site by any user.

In response to this information, Justice Shah stated that he could pass an interim order that would grant intermediary liability protection if Google would send a representative to explain their position before the court. Yasser Latif Hamdani, the legal counsel for the petitioners, explains that “Google should clarify its position.”

However, he explains, incorporation under Pakistani laws could mean that Google would be required to create a “localised version” of YouTube for the Pakistani audience. This was the alternative remedy posed by government officials, wherein the PTA official explained that they were not able to restrict access to specific YouTube videos like ‘Innocence of Muslims’. They therefore argue that Google should create a localised site for Pakistanis that filters out these videos completely.

Despite repeated attempts by Dawn.com, PTA representatives were not available for contact to clarify their position.

Flaws in the government’s proposed solution

This “middle of the road” decision is contrary to one of the main claims made by Hamdani, who argues that blocking the site means that the government is unilaterally denying Pakistanis the right to post videos that rebuke or disprove the assertions made in offensive videos. He explains that if someone in California is engaging in offensive speech, “should we impose a ban on ourselves?”

More generally, Hamdani argues that the Constitution guarantees fundamental freedom of privacy, speech, and access to information. The blocking of sites like YouTube directly violates these rights, but he went further to state that “literally every fundamental right is violated when you consider the implications … [from] the freedom of association to the freedom of trade.”

Sana Saleem and Farieha Aziz are members of BoloBhi, an organisation that advocates for “open access and [the] right to information.” Saleem and Aziz explain that they are “assisting the court to understand how (internet) filtration can be abused” by government entities. They assert that “Internet access is a tool for communication” and that freedom of speech and expression are fundamental rights that must be protected in a democratic society.

YouTube’s importance

Though banning YouTube may seem innocuous to some considering its use for entertainment, Saleem and Aziz explain that the site was also used by students, considering the 11 million hits in Pakistan on the site’s Virtual University. Nighat Dad, member of the Digital Rights Foundation, which focuses on research and training members of civil society to defend digital rights, argues that Pakistan has witnessed an “increasing trend of censorship and blocking internet space.” She concludes that such governmental action is contrary to democratic principles.

Dad explains that she has hopes that the PML-N will rectify the crackdown on digital rights based on the party manifesto’s language concerning digital rights. However, Saleem and Aziz explain that the ideology of ruling political parties does not affect their decision-making in the face of “an angry crowd [that] has the potential to destroy public property.” As such, they explain that “the bend is mostly towards pacifying angry sentiments,” but they hope to engage parliamentarians to assist in protecting open access and digital rights for Pakistani citizens.

A more reasonable solution

When asked what the government should do in the face of anti-Islam videos like the Innocence of Muslims, Dad, Aziz, Saleem and Hamdani all agreed that the government should stand back and allow the citizens to use their right to free speech to rebut claims that offend them. Nighat Dad states that the government should “snap out of the police state scenario” where they infringe on fundamental rights by nominally citing to “national security.” Saleem and Aziz believe that citizens should push back against the government unilaterally removing material they find to be offensive. Hamdani explains that if more videos like ‘Innocence of Muslims’ are released, the government should allow access to the site so that Pakistani users can complain to the site’s management about racist or offensive content, or create original content to defend their position themselves.

The judicial challenge to the YouTube block may be gaining momentum, as the LHC has pressed on with the case and the Peshawar High Court has also taken up a separate case on the same subject. It may be up to the judges of these high courts or the newly elected ruling administration to hasten the restoration of access to YouTube.

However, in order to stop future bans and arbitrary government internet censorship, both institutions will need to understand the long-term democratic value of digital rights and open access to the internet.