ISLAMABAD: The version of the cybercrime bill tabled before the Senate on Wednesday still includes most of the provisions that have been criticised as ‘draconian’ attempts to crack down on citizens’ freedom of expression and their ability to access information.

However, the new draft of the Prevention of Electronic Crimes Bill (PECB) 2015 does take into account a number of suggestions relating to toughening up certain areas of the law.

For example, the version that was passed by the National Assembly in April contained no mention of clamping down on recruitment and financing of terrorists – two major areas of concern in the post-National Action Plan (NAP) scenario.

The fresh draft has incorporated these offences, as well as a separate section on ‘hate speech’, as subsections of section 10, which deals with ‘Cyber-terrorism’.

Terror recruitment and financing have been tackled in latest draft; only one of HRCP’s concerns addressed

But civil society groups are not satisfied with what changes have been made. Only one of the concerns – regarding hate speech – highlighted by the Human Rights Commission of Pakistan (HRCP) in a letter released on Tuesday, have been addressed in the draft.

Haroon Baloch of the digital rights group Bytes for All told Dawn: “There is still no definition of ‘hate speech’; the amended section is very broad and open to interpretation. There is no mention of ‘malicious intent’ or ‘dishonest intention’, it simply says ‘whoever prepares or disseminates information’. This could be interpreted to mean anyone in the information chain.”

The bill takes a stern view of offences against the modesty of minors, incorporating harsh sentences for those who attempt to entice, blackmail or portray minors in sexually explicit situations, even more so than the punishment prescribed for similar crimes committed against adults.

The law allows the Pakistan Telecommunication Authority (PTA) to enforce its version of the defamation ordinance, as section 18 of the bill, dealing with ‘Offences against dignity of a natural person’, is still a part of the bill.

However, under subsection (4) of section 34, which deals with ‘Unlawful online content’, aggrieved parties will be allowed to file review applications with the authority within 30 days to seek undoing of any order passed by it.

Legal lacuna

There are certain changes to the law that have been made keeping in mind the unique nature of the medium that the law seeks to regulate.

For example, through an amendment in clause 1, the law’s jurisdiction has been greatly expanded. “[The law] shall also apply to any act committed outside Pakistan by any person if the act constitutes an offence under this act and affects a person, property, information system or data located in Pakistan,” reads Section 1 of the new draft.

This, according to lawyer Saroop Ijaz, will pose a practical problem. “Section 4 of the Pakistan Penal Code already deals with extra-territorial offences, but it makes sense to include something like this in the law, due to the nature of the Internet, where crimes against the state can be committed from outside its physical jurisdiction.”

“There is no international criminal regime with regards to cybercrime, so the lack of an implementation mechanism will render this section nearly unenforceable,” said Mr Ijaz, who is also the Pakistan representative for Human Rights Watch.

In addition, under section 26, which deals with ‘Establishment of investigation agency’, a new stipulation has been added: “The investigation agency shall establish its own capacity for forensic analysis of the data or information systems and the forensic analysis reports generated by the investigation agency shall not be inadmissible in evidence before any court for the sole reason that such reports were generated by the investigation agency.”

While on the face of it, it seems that both the functions of investigation and prosecution have been handed over to the same agency – ostensibly the Federal Investigation Agency (FIA) – and their reports have been deemed admissible in court, Saroop Ijaz maintains things are more complicated than that.

“In Pakistan, the primary law of evidence is the Qanoon-i-Shahadat 1984. The general legal principle is that when there is a general law, the special law (in this case, PECB) trumps the general law. However, the only mention of electronic crimes in the Qanoon-i-Shahadat is in article 164, which deals with production of evidence which is made available due to modern devices.”

In his opinion, there was nothing in this section that restrained a judge from exercising his discretion regarding the admissibility of evidence.

When the draft bill was tabled in the Senate on Wednesday, journalists in the press gallery protested and walked out to register their dissatisfaction with the law, which in their view seeks to curtail journalistic freedom.

But although IT Minister Anusha Rehman tried to placate them by saying that the bill expressly excludes both electronic and print media outlets, there are still stipulations in the bill that can hamper journalistic practices.

Published in Dawn, July 28th, 2016