The Islamabad High Court on Friday lashed out at the Pakistan Telecommunication Authority (PTA) over the recently approved social media rules, saying that "if India was in the wrong, should we follow suit?"

IHC Chief Justice Athar Minallah made the remarks in response to an argument by the PTA counsel. He was hearing a petition by the Pakistan Bar Council (PBC) pertaining to the recently approved rules titled, “Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules 2020” (RBUOC). The PBC argued that it seemed the new rules contradicted some articles of the Constitution.

Justice Minallah said that if the new rules "discourage criticism, it would discourage accountability". Criticism, the judge said, is very important for democracy.

He also cautioned that if the authorities "ban criticism in the 21st century, it would lead to damage".

"Who recommended the introduction of such rules and which authority approved them?" asked the IHC top judge, adding that the "government or any law was not exempt from criticism". The PTA counsel, however, said that letters had been written to PBC and other lawyers' bodies for their recommendations.

"These rules are also highlighting a mindset," the judge remarked.

"Even court decisions can be criticised [but] fair trial should not be impacted," said Justice Minallah. "When court decisions become public, [their] criticism does not even lead to contempt of court [charges]."

Justice Minallah directed the PTA to take the PBC's objections into account and convince the court that the new rules are not contrary to Article 19 and 19(A) of the Constitution in the next hearing. The case was adjourned until December 18.

'Digital dictatorship'

The recently approved rules have sparked anger and condemnation from stakeholders, including internet service providers as well as digital rights activists, who have termed them as draconian and a violation of cyber laws of the country.

In a statement today, PPP information secretary Nafeesa Shah termed the rules as "illegal and unconstitutional" and demanded that they be withdrawn. Shah accused the "fascist" government of wanting to "impose an online, digital dictatorship" in the country and said that the new rules were being introduced to impose restrictions on the media and silence the opposition.

"From journalists and opposition to a layman, [everyone] who shares material critical of the government, will be a target of censorship," she said. "The government's step is equivalent to shutting down digital media companies."

Shah said that the rules should be tabled before the Parliament.

The RBUOC rules have placed all the internet service providers (ISPs) on a par with social media companies and all the requirements of the social media platforms have been applied to the ISPs as well.

The RBUOC rules have identified that the ISPs and the SMCs have to ensure public community guidelines for usage of any online system.

“Such community guidelines shall inform the user of the online system not to host, display, upload, modify, publish, transmit update or share any online content that belongs to another person and to which the user does not have any right. This is blasphemous, defamatory, obscene, pornographic, paedophilic, invasive of another’s privacy, violates or affects religious, cultural, ethnical sensitive of Pakistani or harms minor in any way, impersonates another person or threatens the integrity, security, or defence of Pakistan or public order or causes incitement to any offence under PECA.”

Furthermore, social media companies will be required to provide the designated investigation agency with any information or data in decrypted, readable and comprehensible format. The rules prohibit live-streaming through the ISPs and the SMCs by deploying online mechanism, related to terrorism, extremism, hate speech, pornographic, incitement to violence and detrimental to national security.

The ISPs and the SMCs could be fined up to Rs500 million for failing to abide by the PTA's directives, while appeal against the decision can be filed in high court within 30 days of the PTA’s order.

Complaints against online content can be filed with the PTA by any aggrieved individual, federal, provincial or local government department, any state owned company, law enforcement or intelligence agency.

The rules have also indicated that a Data Protection Law is likely to be promulgated in Pakistan in the near future and the ISPs as well as the SMCs will have to establish database servers in the country once the law is enacted.