February 21st, 2022
By Rehan Piracha
A Presidential Ordinance has increased punishment of online defamation to five years while setting a six-month timeframe for concluding trials under the cybercrime law. The federal law minister claimed the amendments were made to curb ‘fake news’ while the opposition, journalists and digital rights activists termed it an attempt to gag dissent.
On February 20, President Arif Alvi promulgated Prevention of Electronic Crimes Act (Amendment) Ordinance, 2022. The amendments in 2016 cybercrime law broadens the scope of online defamation to organisations, authorities and other government bodies.
Previously, an aggrieved person or representative could launch a complaint but now any person would be able to lodge complaints in respect of online defamation of a public figure or a holder of public office.
Organisations defined as person
Under Prevention of Electronic Crimes Act (Amendment) Ordinance, 2022, an amendment has been made in Section 2 titled definitions with an insertion of a new clause to define ‘person’.
The clause states ‘person’ includes any company, association or body of persons whether incorporated or not, institution, organisation, authority and any other body established by the Government under any law or otherwise.
Five-year jail term for online defamation
The ordinance amended Section 20 relating to offences against dignity of natural person by omitting the word of natural from the heading and text. It also increased punishment for the offence from three years to five years.
Any person can lodge complaint
The ordinance also states the informant or the complainant shall be “aggrieved person, his authorised representative, or his guardian, where such person is a minor or a member of the public in respect of a public figure or a holder of public office”.
Online defamation made non-bailable offence
The ordinance has amended Section 43 to place offences against dignity of person (section 20) along with offences relating to Section 10, 21 and 22 as non-compoundable, cognizable and non-bailable under the cybercrime law. The previous offences related to cyber-terrorism, modesty of natural person and minor, and child pornography.
Six-month trial period
The ordinance also sets a timeframe of maximum six months for conclusion of cases under the cybercrime law. The new Section 44A states the trial shall be concluded expeditiously, but preferably not later than six months of taking cognizance of the case.
Cases falling under PECA will be supervised by a high court. “The court shall submit a monthly progress report of any pending trial to the concerned high court and shall give reasons for the inability of the court to expeditiously conclude the trial,” reads the ordinance.
Apart from sending the report to the high courts, copies of the progress report will be sent to the law secretary if the case is registered in the Islamabad Capital Territory. However, if a case is registered in a province, then the copies of the report will be submitted to the “provincial secretaries of prosecution departments, the prosecutor general or advocate general”.
The ordinance also authorises the high court to issue “fresh timelines” of a case if it finds the “reasons” given by the trial court “plausible” and beyond its control.
The ordinance also empowers the high courts to summon federal or provincial government officers to remove any “difficulties, hindrances and obstacles” it finds in the case.
Cybercrime law amended to root out fake news: law minister
Federal Law Minister Barrister Farogh Naseem said the amendments in the cybercrime law were made to curb the menace of ‘fake news’ in the country. The minister said spreading of fake news would be treated as a cognisable offence under the law.
Asked whether the PECA ordinance would have retrospective effect, the law minister said the question was left open for interpretation of the courts. He said criticism was different from fake news, adding that there was hardly any grey area between the two terms.
Farogh said the legislation was not limited to protection of public office holders but sought to provide legal recourse to all citizens aggrieved by online defamation.
“No government office is barred or exempt under the offence of online defamation,” he told reporters at a press conference in Karachi on February 20.
Media associations slam ordinance
In a statement on February 20, a joint penal of media associations rejecting the draconian amendments to the Prevention of Electronic Crimes Act (PECA), calling it a blatant move to stifle media independence, freedom of speech and dissenting voices in the country.
“All media bodies will take any and all legations to challenge any attempt to curb media’s independence and its right to raise voice against any steps to curb freedom of expression as guaranteed in the constitution,” said the Joint Action Committee comprising of All Pakistan Newspapers Society, Council of Pakistan Newspapers Editors, Pakistan Federal Union of Journalists and Association of Electronic Media Editors and News Directors.
The JAC said it would oppose such moves with the full might of its constituent bodies and individual members. “it is evident that the govemment is adamant to push through its ill-conceived and draconian agenda through various presidential ordinances,” the JAC said.
According to the JAC statement, all media bodies stand united to defend freedom of expression and people’s right to information.
PECA Ordinance attack on freedom of press: SCBA chief
Supreme Court Bar Association (SCBA) President Ahsan Bhoon has strongly condemned the amendments to the cybercrime law through a new ordinance, Express Tribune reported.
The SCBA president termed the new ordinance an “attack on freedom of press and expression”. He wondered the government was scared of criticism. “Though I am a victim of fake news, but I strongly oppose such laws,” the paper quoted him as saying.
Opposition calls out government
Opposition parties called out the government for stifling critical voices on the pretext of curbing fake news in the country.
“This move had little to do with regulating fake news, but more about shutting down legitimate criticism of the government,” Senator Sherry Rehman from Pakistan Peoples Party said.
Soon the ruling Pakistan Tehrik Insaf itself would become a victim of these new laws, said Maryam Nawaz, vice-president of the Pakistan Muslim League-Nawaz. “The legislations being done by this government are apparently aimed at suppressing the voices of media and opposition, but these laws are about to be used against Imran and Company. Don’t say then, you have not been told (about it),” she tweeted.
HRCP calls for ordinance’s rollback
The Human Rights Commission called on the federal government to roll back the PECA Ordinance. “The proposed laws that aim to increase the jail term for online criticism of the state from two to five years, and make it a non-bailable offence, are undemocratic and will inevitably be used to clamp down on dissenters and critics of the government and state institutions,” the HRCP said.
Fake news a pretext: activists
Responding to law minister’s assertion that the PECA Ordinance would curb fake news, Nighat Dad, founder of Digital Rights Foundation, said the cybercrime law already has provisions to tackle misinformation and disinformation. “Contrary to their claims, the government has not defined what is fake news in the ordinance,” she pointed out.
“Criminal defamation is typically limited as a personal right worldwide but the government has broadened its scope to organizations,” Dad explained. She said the amendments were made in opaque manner and without consultations of stakeholders. “This would only result in onslaught of new cases under the cybercrime law,” the digital rights activist said.
The amendment to PECA by the government absolutely does not belong in a constitutional democracy, Usama Khilji, executive director of Bolo Bhi, told Voicepk.net.
“The excuse of fake news is merely being used to silence any dissent against the current insecure regime,” he said.
That the amendment was brought through ordinance and not parliament exposes the mala fide of the government, he said. “It will be difficult for it to withstand scrutiny of the higher judiciary if rights hold any value in our state,” Khilji said.
Reema Omer, legal advisor of the International Commission of Jurists, said the criminal defamation law under PECA had been more oppressive by the recent ordinance. “This has happened at a time when there is a global movement against criminal defamation laws, with such laws being considered incompatible with freedom of speech,” she tweeted.
A number of countries have abolished criminal defamation, and others are considering repeal or limiting application, she added.