1. Nighat Dad Founder Digital Rights Foundation Pakistan
Nighat Dad is a Pakistani lawyer and Internet activist who runs the Non Profit Organisation Digital Rights Foundation, a research and advocacy NGO that protects women and minorities from cyber harassment and defends their online freedom of expression. She is among the pioneers who started lobbying for Internet freedom in Pakistan. With an extensive experience in cyber laws, she is also an independent development consultant. Her actual focus is ICTs to support Human Rights, democratic processes and Digital Governance.
Her work in the field of IT security has earned her many international awards. In 2015, she was named in the TIME magazine’s rundown of cutting edge pioneers, for helping Pakistani ladies battle online provocation. She also was granted the Atlantic Council Digital Freedom Award and Dutch government’s Human Rights Tulip grant.

2. Internet Laws and Policies in Pakistan
PRESENTED BY: Nighat Dad

3. An Overview
Several bills have been attempted and the Prevention of Electronic Crimes Act (PECA) 2016 has been passed, in an effort to address the situation.
Currently the Ministry of Information Technology (MOIT) has put forth its draft Personal Data Protection Bill, 2018, which DRF, have reviewed and presented their comments, which can be found on the following link:
submit-comments-on-the-personal-data-protection-bill-2018/

4. An Overview
Additionally, as of May 2018, a ‘Digital Pakistan’ policy has also been given the green light by the Federal Cabinet. The draft of this policy was presented by the Minister for IT and Telecom (MoITT), Ms. Anusha Rehman to the cabinet.
The policy looks to afford tax exemptions, rewarding IT export remittances and the possibility of providing bank loans to IT companies.
On a provincial level, Punjab’s Information Technology Policy 2018 was also announced on the 1st of June, 2018 and promised to endeavour to bridge the digital divide across gender, region and economic classes.

5. Personal Data Protection Bill 2018: Salient Features
The Bill put forward by the MOIT envisions a data protection regime that takes a comprehensive, federal approach to data privacy.
The Bill consists of 43 sections and the preamble states its purpose as “to provide for the processing, obtaining, holding, usage and disclosure of data relating to individuals while respecting the rights, freedoms and dignity of natural persons with special regard to their right to privacy, secrecy and personal identity and for matters connected therewith and ancillary thereto”.
It also compels data controllers to put in place security measures to guard against loss, misuse and unauthorized disclosure of personal data; and failure to do so can result in a fine of upto one million rupees.
The Bill also creates a National Commission for Personal Data Protection (NCPDP) which consists of three members belonging to the judiciary, the field of computer science/telecommunications and civil society each.

6. Data Protection Bill 2018: Comments & Concerns
The Bill protects two types of data: personal and sensitive personal data. We posit that the definitions of personal data and sensitive personal data are limited in their scope as the former is confined to commercial transactions, whereas the latter does not include within its ambit biometric and genetic data.
Rights are vaguely worded and cast the net of exceptions wide enough to render some of these rights ineffective.
The Bill does not guarantee protection of personal data of local data subjects when it is held or processed outside the country. This jurisdictional confusion can effectively result in an inability of Pakistani users to control their data once it leaves the borders of Pakistan.

7. Constitutional Rights
Article 19: Freedom of Expression
Article 19A: Right to Information
Article 14: The dignity of man and, subject to law, the privacy of home, shall be inviolable
Article 17: Freedom of association
Article 25: Equality of citizens, All citizens are equal before law and are entitled to equal protection of law.

8. Legal Landscape/ Overview
Anti-Terrorism Act, 1997: role of intelligence agencies in covert surveillance operations across Pakistan. This is the only law governing the creation & operation of these intelligence agencies, so the operational powers and jurisdiction of these intelligence agencies are not limited by any legal delineations.
Pakistan Telecommunication (Re-Organization) Act, 1996 allows for interception of calls: “in the interest of national security or in the apprehension of any offence, the Federal Government may authorize any person or persons to intercept calls and messages or to trace calls through any telecommunication system” (Section 54(1))

9. Legal Landscape/ Overview
Electronic Transactions Ordinance, 2002:
Investigation for Fair Trial Act, 2013: Section 9 permits “secret warrants” to be issued by the High Courts for the purpose of surveillance or interception
The erstwhile Protection of Pakistan Act, 2014 gave powers to law enforcement agencies to arrest without a warrant (Ss.3(2)(b) & 3(2)(c)). The Act also allowed for information to be withheld from the accused under section 9 of the Act (lapsed in 2016)

10. International Law Obligations
Universal Declaration of Human Rights (UDHR)
International Covenant on Civil and Political Rights (ICCPR)
Basic human rights are now applicable to the internet, UN Human Rights Council (HRC), A/HRC/32/L.20, 2016; also A/HRC/res/26/13, June 2014; A/HRC/res/20/8, June 2012

11. History and Inception of Prevention of Electronic Crimes Act 2016
PECA is preceded by the Electronic Transactions Ordinance, 2002
Prevention of Electronic Crimes Ordinance was passed in 2009 which lapsed due to non-confirmation by Parliament.
Prevention of Electronic Crimes Bill first presented by the Ministry of IT in April Another version presented in September 2015 and gain in April 2016
PECA was eventually passed by the National Assembly on 11th August with 50 amendments and was assented by the President on 18th August, 2016

12. History and Inception of PECA 2016
August 11, 2016
PECA passed by the National Assembly
August 18, 2016
PECA receives the assent if the President of Pakistan/is published in Extraordinary Gazette
September 9, 2016
Cabinet Division approves designation of the FIA as the investigation agency under PECA
March 31, 2017
Law division issues notification setting up courts under PECA
May 2017
PECA cases transferred to designated courts

13. Prevention of Electronic Crimes Act, 2016: Salient Features
CHAPTER II: Offences and Punishments (sections )
Section 43: offence to be compoundable, bailable and non-cognizable except for Sections 10 (cyber terrorism), 21 (offences against modesty of a natural person and minor) and 22 (child pronography).
Section 37: Empowers the PTA to remove content if:
“necessary in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, public order, decency or morality, or in relation to contempt of court or commission of or incitement to an offence under this Act.”

14. PECA on Online Harassment
Section 21: Offences against modesty of a natural person and minor:
-Superimposes face over a sexually explicit photo or video
-Distributes a photograph of someone in sexually explicit conduct
-Intimidates with a sexually explicit act
-Entices a natural person into a sexually explicit act
-Harms reputation, created hatred, blackmails or takes revenge

15. PECA on Online Harassment
Section 22: Child pornography
Section 24: Cyberstalking:
-Follows or unwanted contact
-Monitors
-Watch or spy
-Distributes information without consent

16. PECA: Problematic Sections
Section 29: provides for mandatory mass retention of traffic data by service providers for a minimum of one year
Section 36: allows for real-time collection and recording of data if a Court is “satisfied on the basis of information furnished by an authorised officer that there are reasonable grounds to believe that the content of any”

17. PECA: Problematic Sections
Section 39(1): permits the sharing of “electronic communication or data or for the collection of evidence in electronic form” with any “foreign agency or any international organisation or agency for the purposes of investigations or proceedings”

18. PECA, 2016: Comments & Concerns
Free Speech concerns: The Act contains several provisions which have the potential to curb freedom of expression
Privacy & surveillance: Wide powers to retain and obtain personal data
Criminalises cyber terrorism, online hate speech, online defamation, unauthorised access to information, non-consensual use of pictures/videos, child pornography, cyber stalking, spamming, spoofing.
Gives wide powers to the PTA to remove online content [section 37]

19. The NR3C, FIA
The FIA is the designated investigative agency under PECA (section 29)
The FIA is understaffed
Number of complaints*: 12, 339
Number of inquiries*: 1,623
Number of FIRs*: 232
Lacks gender-sensitivity

20. Status of Cases
PECA cases were transferred to designated courts in May 2017
FIA has been adding section 500 of the PPC to cases of section 21 due to confusion whether cases are to be tried before Magistrate or Sessions Judge -- thus cases going to and fro between courts.
According to a study by BoloBhi, there are 13 ETO cases still pending before the courts in Sindh.

21. Status of Cases: Challenges
Primary reason for delay in trials and adjournments is the absence of FIA prosecutors--this is particularly a problem for cognizable offences where the prosecution has to be led by the state.
In some cases final challans have not been filed, forensic reports have not been submitted, case property is not being produced, NOCs are being submitted to compromises are being facilitated by the FIA.

22. Right to Internet Access
The federal government is not authorised to command suspension of mobile services without prior notice and justification, and the suspension of the operations can only be justified if the President exercises the power relating to the proclamation of an emergency, as per section 54 (3) of the Pakistan Telecommunications Act of 1996.
Suspension of mobile services unlawful and in violation of the fundamental rights of freedom of movement, freedom of assembly, freedom of association, freedom of trade, business or profession, freedom of speech, and right to information under Article 15, 16, 17, 18, 19, and 19-A respectively of the Constitution of Pakistan.

23. Online Harassment: PECA Cases
In March the first judgment on online harassment was passed in Lahore.
Case filed under sections 20, 21 and 24 of PECA as well as section 420 of the Pakistan Penal Code (PPC).
-2 years imprisonment and a fine of Rs. 200,000 under s.20 of PECA
-2 years imprisonment and a fine of Rs. 300,000 under s.21 of PECA
-2 years imprisonment and a fine of Rs. 200,000 under s.24 of PECA
-Rs. 10,00,000/- was awarded in as compensation for damaging the social/private life of the victim as envisaged under s.45 of PECA
The judgment, though an encouraging development, does not lay down any substantial tests or legal principles regarding online harassment.

24. Mapping PECA
In an effort to map the trajectory of PECA cases being filed with the FIA through the Lahore Cyber Crime Circle, DRF is conducting an observation of each case that passes through the relevant courts.
The findings and related posts can be found on DRF’s website under the head of ‘Mapping PECA’ which has been created specifically to cater to this area.
The link to our dedicated PECA section is as follows:

25. Telegraph Act
The Telegraph Act of 1885 governed the use and ownership of telegraphs and was later amended by the Telegraph (Amendment) Act 2014.
The amendment came in the form of substitution of s.25-D which reads as:
‘Causing annoyance, intimidation or harassment: (1) Any person with or without concealing his number...causing persistent annoyance, fear or harassment...through obnoxious telephone calls...shall be punishable with imprisonment for a term extending up to three years or fine in excess of twenty thousand rupees or both.’

26. Pakistan Telecommunication Authority
The PTA is Pakistan’s telecommunication regulatory authority which came about under the ambit of s.3 of the PTA Act 1994.
The Authority established to regulate the establishment, operation and maintenance of telecommunication systems, and the provision of telecom services.
S.5 of the PTA Act authorized it to grant, renew, monitor, modify and enforce licences for telecom systems and services and levy fees and other such charges, amongst many other powers.
Under s.32 of PECA, PTA may direct any telecom company to retain its specified traffic data for up to a year minimum.

27. Pakistan Telecommunication Authority: Powers
Under s.37of PECA, PTA has the authority to remove or block or issue directions to remove or block access to information if it considers in the interest of the glory of Islam or the integrity, security or defense of Pakistan or any part thereof

28. Cyber Harassment Helpline

29. Cyber Harassment Helpline
LAUNCHED
1 DECEMBER 2016
SUPPORT TEAM:
CYBER LAW EXPERTS
DIGITAL SECURITY EXPERTS
PSYCHOLOGICAL SUPPORT EXPERTS
EVERYDAY
9 AM TO 5 PM
REGION’S
FIRST
DEDICATED HELPLINE
FOR ONLINE VIOLENCE
STRIVES TO HELP ANYONE WHO FEELS UNSAFE IN DIGITAL SPACES

30. Conclusion

31. RECOMMENDATIONS
More allocation of resources to FIA and PTA to tackle online harassment and hate speech---however these resources should not be used for political victimization.
Rapid response in cases of urgent and imminent threat.
Gender sensitisation for LEAs and the judiciary.
Gender sensitive attitudes must be developed by lawyers.
Coordination between government institutions.

32. RECOMMENDATIONS
Rules governing privacy and confidentiality of online harassment victims must be developed and enforced.
More accessible NR3C offices--in terms of geography as well as removal of barriers such as gender-friendly environment and access for persons with disabilities.

33. Hamara Internet App

34. CONTACT US /DigitalRightsFoundation Office: + 92-42-357-82117
/digitalrightsPK
Office:
HELPLINE: