Navigating user-generated content, defamation and the struggle for free speech in Pakistan
Akhund Forbes, Karachi
Overview of defamation laws in Pakistan
Defamation in Pakistan is governed by both civil and criminal laws. The Defamation Ordinance 2002 outlines the civil liabilities and remedies for defamation, while the Pakistan Penal Code (PPC) governs the criminal aspects of defamation.
Defamation involves actions or words spoken that harm the reputation of an individual, group, company or institution when proven false. In Pakistan, Islamic principles govern defamation laws, where every person is entitled to be treated with respect and can file a defamation suit without the need to prove their respectability in the first place.
There are two types of defamation, libel (written) and slander (oral). To prove defamation under Pakistani law, it must be shown that the statement is potentially harmful, refers to the claimant and is communicated to at least one other person besides the claimant, as set out in Faqir Muhammad v Muhammad Shakil (Civil Revision No 3700/2011) (Lahore High Court).
In addition to being regulated under civil laws, defamation may also constitute a criminal offence under Section 499 of the Pakistan Penal Code of 1860. Section 499 of the PPC defines defamation as:
‘Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person […] is said to defame that person’.
The primary difference between civil and criminal law regarding defamation is that a higher standard of proof is required for the latter. While compensatory damages may be awarded to the victim under civil jurisdiction, the PPC provides for imprisonment and/or a fine as punishment. Furthermore, several constitutional provisions, such as Article 14, which protects the inviolability of dignity, Article 19, which guarantees freedom of speech, and Article 19-A, which guarantees the right to information, may also be contextually relevant to a defamation claim.
Overview of user-generated content (UGC) laws in Pakistan
In Pakistan, user-generated content laws primarily derive from the Prevention of Electronic Crimes Act (PECA) of 2016, which regulates online content and provides a framework for dealing with cybercrimes, including cyber terrorism, hate speech, online harassment, online paedophilia and defamation. While defamation may not be directly covered under PECA 2016, certain provisions do provide protection and remedies against it.
Section 20 of the Act, titled ‘Offences Against the Dignity of a Natural Person’, states that electronic media content that tarnishes the reputation of a natural person through false information or a breach of privacy may result in imprisonment for up to three years, a fine of PKR 1m, or both.
In February 2022, an amendment was introduced to Section 20 of the Act which removed the word ‘natural’ and broadened the definition of ‘persons’ to include government officers and state institutions, such as the military and judiciary.
Balancing the freedom of speech with anti-defamatory laws in Pakistan
Currently, UGC in Pakistan is subject to certain anti-defamatory laws that may restrict online freedom of speech and expression. The challenge is to strike a balance between protection against unfair defamation, maintaining national security and allowing constructive criticism for social and political development.
In October 2021, the Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules (‘RBUOC Rules’) were released. These Rules were enacted by virtue of the mandate given to the Government through Section 37 of PECA 2016 and empowered the Pakistan Telecommunications Authority (PTA), being the regulatory body, to remove any online content that could potentially harm the country’s defence and security, public order, decency and morality, the glory of Islam, and any material that shows contempt towards superior courts, within 48 hours of receiving a complaint. Significant social media companies are required to provide users with clear guidance on their ‘community guidelines’ which must indicate that users should not upload or share content that violates local laws. Additionally, service providers and significant social media companies are required to provide investigation authorities with any data or content in a decrypted and comprehendible format that is present on any information system.
The RBUOC Rules were challenged before the Islamabad High Court (IHC) within two months of their publication, based on the argument that these rules violated the people’s rights to livelihood, freedom of trade and profession, which are guaranteed under the constitution of Pakistan. The courts’ responses to online freedom of expression have been inconsistent. Justice Athar Minallah, the Chief Justice of IHC, expressed his concerns about the RBUOC Rules, stating that they would discourage criticism and negatively impact accountability in the country. On the contrary, the Lahore High Court, while disposing writ petitions against the removal of content that could potentially offend religious sensitivities, emphasised the importance of freedom of expression and respect going hand-in-hand. The judgement stated:
‘[…] the term “right of expression” cannot be stretched to such an extent that it be used as a tool to defy the religious thoughts or sacred personalities of one’s religion. This Court is of the clear view that under the umbrella of “freedom of speech and information” not only the Muslim community, in fact the followers of all the religions have been made to suffer immensely’.
The limitations on freedom of expression, specifically for user-generated content, appear to be inconsistent, amid a backdrop of a history of press censorship. Amendments to curb freedom of speech are made at the state level, while they are struck down in high courts. Consistency in the law is important, which is why the government should comprehensively review UGC laws and formulate a robust and detailed framework. While freedom of expression is essential, the security of the state is of the utmost importance, alongside protection of people from defamation. Therefore, certain restrictions on user-generated content are necessary and inevitable in Pakistan.