Deconstructing Prevention of Electronic Crimes Bill 2015 – “Chapter II Offences and Punishments” – Part 1
On 16th of April, Pakistan Electronic Crimes Bill 2015 was approved by the Standing Committee on IT and is all set to be tabled in the Parliament. While there are claims of civil society consultations, the original draft is not shared with either the media or the activists. There are multiple versions of PECB 2015 floating online making it impossible to precisely study and analyse the actual draft. A copy of allegedly approved bill was leaked to civil society groups and journalists, using which we are trying to highlight the section potentially threatening to civil rights.
What we know:
The Bill was designed to be in compliance with National Action Plan and so is generally restrictive. It allows Pakistan Telecommunication Authority arbitrary powers to regulate online communications across country, deprioritizing right to free expression and in some cases, right to information. The bill is largely perceived (by public at-large) to be draconian and is feared to push Pakistan’s telecom industry in dark ages.
Legislators however believe the critiques of bill are a part of certain ‘lobby’ and do not represent the public at-large. They also feel the draft was prepared with adequate civil society input at various stages.
Interestingly #CyberBill – a hashtag bashing PECB2015 – is one of the top trends in Pakistan today (17th March 2015); a fact which doesn’t corroborate with legislators’ claim .
What we don’t know:
Why the secrecy? We are also unable to figure out as to why the final draft wasn’t officially shared with media and civil society groups. We also don’t understand the reason for haste – it seems instead of getting it right, the focus is one getting it done.
We’ve reviewed the draft believed to be approved by the Standing Committee and have found following immediate concerns in Chapter II – download a copy here:
1. On page 2 under the Definitions, sub-section (x) states:
(x) “offence” means an offence punishable under this Act except when committed by a person under seven years of age or by a person above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion.;
According to this, children up-to 7 years of age can be tried under the Act and 13 in case of ‘not attaining sufficient maturity’. The legal age of maturity in Pakistan is 18 years and the application of this Act on minors is a serious misstep towards child rights.
2. Section 9 on Page 4 states:
9. Glorification of an offence and hate speech. Whoever prepares or disseminate intelligence, through any information system or device, where the commission or threat is with intent to:-
(a) glorify an offence or the person accused or convicted of crime;
(b) support terrorism or activities of proscribed organizations; and
(c) advance religious, ethnic or sectarian hatred
shall be punished with imprisonment for a term which may extend to five years or with fine up to ten million rupees or with both.
Explanation: “Glorification” includes depiction of any form of praise or celebration in a desirable manner.
According to Section 9, to advocate for a person wrongly accused or convicted of a crime is not just illegal but punishable by 5 years in prison or ten million rupees or both.
Real life example: Under this Act the campaign to save Shafqat Hussain (an alleged juvenile charged with murder) can not only be bowdlerized but State can also lawfully arrest those expressing sympathies for the victim (online).
3. Section 10 on Page 4 states:
10. Cyber Terrorism: Whoever commits or threatens to commit any of the offences under section 6,7,8 or 9 of this Act, where the commission or threat is with intent to:-
(a) coerce, intimidate, overawe or create a sense of fear, panic or insecurity in the Government or the public or a section of the public or community or sect or create a sense for fear or insecurity in society; or
(b) advance religious, ethnic or sectarian discord,
shall be punished with imprisonment of either description for a term which may extend to fourteen years or with fine up to fifty million rupees or with both.
According to Section 10 political campaigns and/or protests can be potentially seen as an attempt to “create … insecurity in the Government or the public …” and those expressing support for them online can be punished for fourteen years or with fine up to fifty million or with both.
Real life example:
Citizens’ supporting PTI’s dharna could potentially be seen as creating insecurity in the Government or the public – and under this Act can be charged with Cyber Terrorism. Similarly, PML-N’s long march for the restoration of judges (set in this scenario) could be seen as another example. An extremely dangerous provision especially when valid for all forms of electronic information exchange.
4. Section 18 on Page 5 states:
18. Offence against dignity of a natural person- (1) whoever intentionally publicly exhibits or displays or transmits any false intelligence, which is likely to harm or intimidate the reputation or privacy of a natural person shall be punished with imprisonment for a term which may extend to three years or with fine up to one million rupees or with both:
Provided, nothing under this sub-section (1) shall apply to anything aired by a broadcast media or distribution service licensed under Pakistan Electronic Media Regulatory Authority Ordinance, 2002 (XIII 0f 2002).
It criminalizes the act of transmitting false intelligence which may (or may not) hurt an individual’s reputation and has a huge potential to be used a tool to curb legitimate expression especially when it’s equally applicable to ALL forms of electronic communication.
Real life example:
Saying the least, truth is subjective. For instance, only a certain allegation proved in a court of law can be perceived as truth. “XYZ political leader seems to be a dishonest person” – might not necessarily be true and can be perceived as attack on ones’ reputation – this message alone can potentially land one in jail for 3 years!
5. Section 19 on Page 5 states:
19. Offences against modesty of a natural person and minor: (1) Whoever intentionally and publicly exhibits or displays or transmits any intelligence which:
a) superimposes a photograph of the face of a natural person over any sexually explicit image; or
b) distorts the face of a natural person OR includes a photograph or a video of a natural person in sexually explicit conduct; or
c) intimidates a natural person with any sexual act,
shall be punished with imprisonment for a term which may extend to seven years or with fine up to five million rupees or both.
While the section generally attempts to provide a safety net for the victims of online sexual abuse – by limiting the condition with ‘OR’ – it makes possible a rather open interpretation and can be easily extended to caricatures and satirical cartoons online.
Real life example:
Satirical cartoons and caricatures are a legitimate form of expression and the Act can possibly compromise the right of citizens/journalists to free expression. Have a look at the cartoon by Sabir Nazir – this can potentially be seen a the ‘distortion of natural face(s)’
Replace OR with AND – “distorts the face of a natural person AND includes a photograph or a video of natural person in sexually explicit conduct”
6. Section 21 on Page 6 states:
21. Cyber stalking. (1) Whoever with the intent to coerce or intimidate or harass any person uses information system, information system network, the Internet, website, electronic mail, intelligence or any other similar means of communication to:-
(a) communicate obscene, vulgar, contemptuous or indecent intelligence; or
(b) make any suggestion or proposal of an obscene nature; or
(c) threaten to commit any illegal or immoral act; or
(d) take a picture or photograph of any person and display or distribute without his consent or knowledge in manner that harms a person; or
(e) display or distribute information in a manner that substantially increases the risk of harm or violence to any person,
commits the offence of cyber stalking.
(2) Whoever commits the offence of specified in sub-section (1) shall be punishable with imprisonment for a term which may extend to 2 years or with a fine of up-to one million or both.
Cyber stalking is a genuine concern but the counter mechanisms created in the Act are extremely broad in nature and has the potential to be misinterpreted. Obscene, vulgar and contemptuous are subjective terms and use of such terms to define a criminal act is least to say, dangerous.
A sub-section also criminalizes unauthorized capturing and displaying of a person’s picture without explicit permission of knowledge – again a very generic statement.
The sub-section (e) appears to be completely redundant.
7. Section 22 on Page 7 states:
22. Spamming: (1) Whoever intentionally transmits harmful, fraudulent, misleading, illegal or unsolicited intelligence to any person without the express permission of the recipient, or causes any information system to show any such intelligence commits the offence of spamming.
Explanation: “Unsolicited intelligence” does not include:
i. Marketing authorized under the law; or
ii. Intelligence which has not been specifically unsubscribed by the recipient.
(2) A person engaged in direct marketing shall provide the option to the recipient of direct marketing to block or unsubscribe such marketing.
(3) Whoever commits the offence of spamming as described in sub-section (1) or engages in direct marketing in violation of sub-section (2), for the first time, shall be punished with fine not exceeding 50,000 and for every subsequent violation shall be punished with imprisonment for a term which may extend to three months or with fine up to one million rupees or both.
Unsolicited intelligence is defined in the new draft but 4 other categories of intelligence remains undefined – ‘harmful’ and ‘misleading’ are extremely broad terms and should not under any circumstances be used to define a criminal act.
The Act calls for overly harsh punishment for the offenders of Spamming – considering a lot of small business and entrepreneurs uses mass-SMS software as their primary mode of advertising (which effectively qualifies as spamming). First and second offenders should only be served with a warning.
Blog is written by Media Matters for Democracy