Censorship and State Repression of Online Speech
While the internet may be a global medium, the vast majority of its rules are imposed by State actors and repressive governments are seeking new and innovative ways to port censorship to the online space.
Listen as Farieha Aziz @fariehaaziz of Bolo Bhi and Michael Karanicolas of UCLA Law’s Institute for Technology, Law and Policy @uclatech discuss how governments like Pakistan face a tension between their desire to harness economic and social energies associated with internet access, and its potential to empower opposition voices, whistleblowers and civil society.
Farieha Aziz: This is about institutional power. Wherever power lies, and if power lies with large corporates, with influential people with money, with those in government, or part of the state machinery, across the spectrum. So whether it’s a journalist and a dissident talking about politics, whether it’s a woman talking about sexual harassment or violence, or journalists – even they’ve been summoned and criminal cases have been registered, and they’ve seen how journalists and others have been pulled through months, sometimes more than years, before it actually goes away.
— And there’s a perception that it only goes away when they’re done with you.
Natalie Monsanto: This is the Promise Institute Podcast and I am very excited to welcome you to the second of our five-part special series on global digital rights challenges. This episode discusses censorship and state repression of online speech. The series was produced in partnership with UCLA Law’s Institute for Technology, Law & Policy and features striking conversations about the way the relationship between technology and human rights is playing out around the world.
As digital considerations entwine with and blur more of the core functions of our lives, discussions like these are becoming all the more imperative. Stay tuned after the episode to hear about ways to support work like this and follow us on social.
As we start off the voice you’ll hear first is our Assistant Director Jess Peake, introducing our speakers.
Jess Peake: Good morning. Good afternoon. Good evening. Wherever you’re joining us from, welcome. As I’m sure everybody in our audience knows, around the world repressive governments are seeking new and innovative ways to port censorship to the online space. While private-sector tech companies are increasingly finding themselves responsible for making policy that impacts global speech. Here in the United States, digital technologies has also become the latest front for debates on systemic racism and the potential for new technologies to entrench patterns of discrimination. This series, which features global activists on the front lines of these debates, will examine the pressing digital rates challenges manifesting around the world.
Today’s event though is going to look at censorship at the state repression of online speech. Our speaker for this session is for Farieha Aziz who is a journalist and co-founder of Bolo Bhi, a Pakistan-based digital rights and civil liberty advocacy group. Farieha previously served as an alternate board member for the NGO constituency on behalf of Bolo Bhi for the Global Network Initiative.
She was an MSFS practitioner in residence at Georgetown University for this past academic year. And in January of 2021, she was awarded the very first IA Rehman Research Grant by the Human Rights Commission of Pakistan to document the violations of fundamental rights under the Prevention of Electronic Crimes Act of 2016.
This conversation with Farieha will be moderated by my new colleague, Michael Karanicolas, who is the inaugural Executive Director of the new UCLA Institute for Technology Law and Policy. Michael is also an Affiliated Fellow with the Information Society Project at Yale Law School, where prior to joining us at UCLA, he led the Wikimedia Yale Law School Initiative on intermediaries and information.
Michael’s scholarship revolves around the application of human rights standards to the online world. At pursuit, which is informed by over a decade of experience in civil society, where he’s worked on law reform projects related to freedom of expression, transparency and digital rights, mostly in the context of emerging democracies. We’re delighted to have Michael at UCLA, [00:04:00] and we’re so pleased that Farieha was able to join us, And Michael I’ll now turn things over to you.
Michael Karanicolas: HI, thanks so much for that introduction and it’s great to be here. We’re enormously fortunate to have Farieha here joining us. Farieha, just by way of introduction to sort of open this up, I wonder if I can ask you to talk a little bit about the impact that the internet has had in Pakistan, particularly the impact that it’s had on the political discourse and how expression in the country has changed as a result of internet access.
Farieha Aziz: Thanks Mike. So we’ve seen the internet in Pakistan changed drastically, at least I’d say over the last decade. In terms of how many people are using the internet, I do remember back when website blocking became a problem about 11 years ago. And the attitude towards the internet and within policy-making circles and even within the media, or otherwise, was that this is just an elitist platform for entertainment.
And we’ve seen that change drastically. Especially today, where for political discourse, and also mainstream political parties are heavily reliant on social media because we’re going through a period of heavy censorship within the mainstream. Television is muzzled, print is muzzled to quite a degree. The current day scenario is that the largest mainstream political party, which was in government previously prior to 2018, and ironically the government, which introduced the Prevention of Electronic Crimes Act, the cybercrime law, which is now the weapon of choice for the current regime as well in the state beyond the government to crack down and muzzle dissent by way of criminal investigations and through regulatory power.
The prime minister who belonged to the previous party was charged with cyber terrorism under the cybercrime law. And, you know, we’ve seen mainstream political parties not get their speeches covered on television and so they’re turning to zoom and they’re turning to online virtual conferences, et cetera.
A lot of mainstream journalists and anchors who had prime time are no longer there so now they’ve turned to YouTube. And so YouTube shows so you see coverage of what’s happening in the Supreme court. What’s happening in Parliament, what’s happening politically which we don’t know about. This is where the discourse is now taking place.
Michael Karanicolas: I’ve heard it said in a few different contexts that opposition parties, civil society, journalists had a bit of first-mover advantage on the internet. Where, in a lot of parts of the world, governments, particularly more autocratic governments, they to a varying degree understood the economic potential of the internet for development and for commerce and so encouraged it for that reason. And were a little slow to wake up to the potential of the internet to actually empower different voices to speak and potentially opposition movements to take root. And so there was an early kind of flowering of opposition online and of speech online, followed in most countries, by sort of a crackdown and an attempt to assert greater control over the online discourse. Does that reflect the experience in Pakistan as well?
Farieha Aziz: It does. And so ironically, the party now in power is a party that was in opposition when the cyber-crime law was being debated. And today, his government has been using this and we’ve seen how it’s been used to silence dissidents, et cetera. Whether you say something about the government, whether you say something about other institutions like the military
So we’ve seen this cycle over decades, right? Where when you’re in opposition your politics are different and when you’re in government, the politics are different. But the constituents in most affected obviously are the human rights defenders and the journalists who irrespective of who is in government, had faced the silencing, because essentially in a democratic setup, you’re not there to hold refer to government or put unflattering news.
And we’ve seen the way that criminal cases have been lodged. Frivolous complaint, third-party complainants saying – oh the government has been defamed, right? Or an institution has been defamed on the basis of one tweet.
And then you’re pulled into the criminal justice system. So earlier our concern used to be website blocking primarily, and that it’s done in an arbitrary and discretionary manner. That persists as a problem, but right now the fact that people can get arrested or have been arrested or have to no go through the entire process. The process is used as punishment. That has sort of become a primary concern with the law.
Michael Karanicolas: Yeah, there’s a saying that I’ve heard in the context of prosecutions here, which is that “you can beat the rap, but you can’t beat the ride.” And so that I think speaks very well to this idea of processes as punishment. Can we take a step back for a second though, because you’ve mentioned a few different legal tools that the government has at their disposal? You’ve mentioned website blocking, you’ve mentioned the Prevention of Electronic Crimes Act. Maybe starting with website blocking, can you take us through a little bit about how specifically those mechanisms have been employed, what the legal tool looks like, and how it’s used to either crackdown on voices that spread a message that is not what the current government wants to hear, or in order to sort of curate and manage the discourse in a direction that the government wants to maintain it?
Farieha Aziz: So website blocking goes as far back as 2006, let’s say with BlogSpot’s outage. And at that time, blogs were all the rage. It was always non-transparent and so you never knew who did it.
So The Pakistan Telecommunications Authority, the PTA, has been given these powers by the cyber-crime law. Prior to that, PTA was still exercising this function, but no law authorized them. There was an assumption: because there existed a electronic media authority, and they deal with telecom and the internet, therefore content management is also something that they should be doing.
And so that’s a challenge that we brought to the high court in 2014, saying – well they’re going around blocking websites, there’s no transparency, nobody gets any notice. How we used to find out about a website being blocked is: they posted on Twitter or social media, people would try using VPNs and when they found out that they could access it via VPN or somebody outside of Pakistan could access it but not here, then we’d figure okay it’s been blocked. There was never any official confirmation. Then this followed in terms of political blocking. The pretext was always, so two things, content online and pornography content online.
And so then obviously during 2014, et cetera, we saw a lot of terrorist attacks, et cetera so then it was – there’s a lot of hate speech, terrorist content, and so we also need to crop that. And so those sort of became the narrative tools to drive and gain legitimacy with these powers, even though by law there was nothing.
When our challenge was before the high court in 2015, the government comes up with the cybercrime law. And what they decide to do is empower the Telecommunications Authority through the law. Now, how they’ve been empowered, it has been subject of debate and challenges as well, because what essentially happened is that our freedom of expression article from the constitution, which is article 19 was copy-pasted as is.
So article 19, the way it exists is also problematic. But it’s been outsourced to a Telecom Authority, essentially what a parliamentary judicial functions, but then to decide what falls within the exceptions to speech. And there are a lot of exceptions. And so the manner in which the PTA has been exercising this authority is still overbroad and it’s still discretionary. No notice, no opportunity of hearing, and then they go enact rules under the section, which exceeds the parent law as well. And so they amass powers to issue fines, to dictate to social media platforms, and give ultimatums that they should have their guidelines and rules in tandem with certain factual, religious, moral, ethical things that are completely vague and subjective.
And if they don’t, then they’ll block platforms. And we’ve seen in recent years that this has happened so we’ve seen PUBG and TikTok, and lots of other applications and websites have been blocked. But this is something that persists and despite high court challenges, you get one website restored, and then there’s another direction for another one.
Michael Karanicolas: So there’s three elements to the abusive nature of the process that you’ve mentioned there that I want to flag. Each of which in itself is a severe problem from a human rights perspective. So on the one hand you mentioned the lack of transparency and the lack of public understanding of the rules as they’re understood by the government, both in terms of the way that they’re crafted because they’re crafted in a vague and open-ended way and in terms of their application, right?
So you don’t know who’s making the decision, you don’t how the decision is being made. Which is problematic in so far as it creates a gray zone around the line between permissible and impermissible speech. But you’ve also mentioned this lack of public oversight. So a specific lack of public input into the process and a specific lack of due process itself.
And the idea that this process is discretionary and that it’s in the hands of bureaucrats that are not really meaningfully answerable to the public as well. So I think all three of those are enormously problematic, common elements to repressive systems of content regulation at the state level. The other thing that I wanted to sort of dig a little bit deeper into, in terms of how these laws impact folks, is the way that I understand it, from what you’ve said, you can essentially divide the abusive content restrictions into two different categories.
On the one hand, you have content restrictions on the basis of morality, whether it’s targeting speech because it is claimed to be blasphemous or is counter to a particular conservative interpretation of particular religious morals or what have you. And then the second category would be this sort of opposition political speech, which is targeted.
And again, it’s not, maybe it’s not necessarily a bright line because I know that opposition folks and journalists can be accused of blasphemy and accused of moral offenses. The justification on that side, seems to be a little bit different as well in so far as you hear a lot of references to hate speech, to defamation of the state or defamation of public figures to national security because disclosure of ways in which the military might be wasting money could be turned back and said, this information is harmful to our national security. Does that framework track to the reality of the experience?
Farieha Aziz: It does. For sure. So the website blocking part of it definitely more cultural and then it’s about blasphemy or political speech or hate speech. So everything really. But the criminal investigations encased laws primarily have to do with political speech, with dissent. And that becomes far more egregious because okay website blocking is problematic because there can be business concerns and other freedom of expression and right to information concerns.
Here, what happens is the lack of transparency that we witness and the lack of due process that we’ve witnessed with the telecom regulator with website blocking is what we’re seeing with the Federal Investigation Agency. Now, this is an investigation agency that’s sending out summons to journalists and to dissidents and to citizens.
And they’re also finding criminal cases on the basis of which that they’re arresting people, and sometimes the basis can be a tweet. Despite how vaguely worded PECA is, the law is, even then there are certain categories. So for instance, hate speech has to be either on sectarian or religious grounds for instance, there’s three categories.
Now, obviously, political speech does not, if you’re talking about a military officer or the prime minister or somebody in government, that does not fall within the hate speech category or the cyber terrorism category or even what we referred to as a criminal defamation section in this law, which is again broad, which says harm to reputation.
But the harm to reputation of the individual, it has to be an aggrieved party filing the complaint. What we’re seeing as a pattern is third party complainants, an aggrieved citizen who says – I’ve watched this on television, I’ve seen or I read this on Twitter or social media and I’ve felt enraged because an officer or government institution, an intelligence agency has been defamed. And so here comes the complaint sometimes that turns into a person information report on the basis of which additional sections of the law are added and so then begins this process to arrest. Or there’s a summon because the summons that have been received by various journalists are undated. They don’t include a copy of the complaint when people have written and responded and gone through their lawyer asking for a copy of the complaint, a second summon has been issued, and then a third.
They want your presence at their office and once you’re at their office, then it’s a very intimidating environment. Sometimes even though the law says that you cannot take devices without a warrant, they try and take your devices. The devices have been taken, they’ve been accessed at offices. So while all of this has happened, what we’ve seen is that there’s a political backlash, but there’s also a gender dimension because as a result of call-outs, posts, #MeToo, sexual harassment, sexual violence. The same pattern has persisted. The investigation agency has summoned these women or people supporting these women when men who’ve been named they’ve filed complaints. And so there’s a discrepancy between how their complaints are processed versus women who file complaints with the agency for harassment.
And if we look at how malicious prosecutions are, this fits the pattern. There are malicious prosecutions where political speech is concerned and even courts. So what happens is you get sucked into the process. If you received a summon or if there’s an FIR against you, that means now you have to go get bail. Now you’re an accused under the law.
The accused has to turn up at every single hearing. Sometimes, you know, it’s pre-arrest bail that you are drafted. All the while, you’re anxious whether it’ll be confirmed or not, if they’ll file a cancellation application, whether it goes to trial or not, those things are delayed. Do you find a question? Some people are able to get these squashed, others are not.
And so its expense: financial, emotional, psychological, there’s time away from your job. People have been sacked because, you know, this is coming from influential political quarters. You don’t want to be associated with somebody because they become a liability, so they’ve turned into a liability, their economic prospects, their career prospects, socially they’re alienated. So there’s a whole pattern of abuse and this has happened specifically with several journalists over the last few years, with political dissidents from grassroots movements and this is still persisting.
Michael Karanicolas: Yeah, I’m glad that you raised the gender dimension as well in terms of how this is impacted and how this has been brought to bear against complainants about sexual assault or sexual harassment. Likewise, journalists who might report on these stories.
I think that it is also an important aspect not to be missed. In so far as it’s easy to view these kinds of laws as being put in place to defend the government. I think that the way that you frame it, it is really useful to remember that it’s less about defending the government more about defending institutional power structures. And that ultimately there are people that have the power and the connections and the resources to turn the system against you, against a person who they perceive as their opponent, as their enemy.
And as long as there are people that are in that position, then these abusive aspects of the system become far more dangerous. We can talk about specific problems with the provisions of the law, that the definition of criminal defamation, the fact that there’s a criminal defamation itself, or the fact that there aren’t proper defenses to the way the defamation law is framed, the structure of the morality laws, the fact that a blasphemy law exists.
All of these things are sort of in and of themselves problematic, that even if you corrected those problems with the law, that fact that the process itself is structurally able to be targeted the way that it does, is itself enough to significantly chill freedom of expression and to place a great burden on anyone whose narrative or whose voice is counter to what those power structures would want voiced and would want the discourse to contain.
Farieha Aziz: It absolutely has. We’ve also seen people retract, apologize because how much can you invest in this process over one tweet? And I’ve seen how journalists and others have been pulled through months, sometimes near and more than years before courts before it actually goes away. And there’s a perception that it only goes away when they’re done with you.
If they’d managed to, let’s say silence, you or they’ve caused the damage and made you an example for others. And that’s essentially what’s happening, harassment through this. So whether it’s a journalist and a dissident talking about politics, whether it’s a woman talking about sexual harassment or violence or even journalists who’ve covered this, like you said, even they’ve been summoned for their journalistic work.
Even people will use the word, “alleged” along with, let’s say a sexual harasser. Which does not by any definition fall within the unheard of. Even they’ve been summoned and, you know, criminal cases have been registered. You’ve rightfully said that this is about institutional power, whenever power lies and if power lies with the large corporates, with influential people with money, with those in government, with those part of the state machinery, across the spectrum.
And so we’ve also seen cases where know the city I live in, which is in the southern part of the country. There was an oil spill, some time ago. And so this company called Planet X and they do environmental work, they linked it to a particular petroleum company. The petroleum company filed a defamation complaint against them.
The federal investigation agency went and raided their offices, took their devices. That company doesn’t exist anymore after the level of escalation that they saw. So a lot of people have had a chilling effect. We’ve also seen retractions and apologies because this has also been used as a leveraging tool to change the narrative.
Because what’s also happening is on the side. So where these cases are taking place, there is a narrative on social media, and this is social media culture now, five years ago it might’ve been different, eight years ago it might have been different. So now the same people who have the power and influence to file these cases also have a PR ring that is then extracting outcomes and using it for such a narrative development, whether it’s a state or whether it’s powerful individuals saying – oh, see, they were lying to begin with. They’re not credible people, et cetera.
And so that’s something that’s happening and we’re seeing targeted campaigns towards journalists, towards women, towards the weaponization of blasphemy allegations and that’s the new frontier. Over the last few years against dissidents, while political speech gets called out blasphemy becomes an immediate target on their back. This year we’ve seen a convergence and this year we’ve seen the blasphemy allegations, false allegations being weaponized against the women marchers, and the women’s movement after this year’s march. Once you start falsely accusing people of committing blasphemy when you know it’s really for their politics because why are the women’s marchers being targeted? Because they’re also raising political issues like missing persons and enforced disappearances.
Michael Karanicolas: Yeah. The evolution in mechanisms of control is really interesting to think about where early on, the threat was to throw you in jail. And of course, when you throw someone in jail, there are all kinds of potential consequences about it. It makes a lot of headlines. You might get called to task by certain international bodies. It turns the person into a martyr. So now the step beyond that in terms of throwing people in jail is to punish you with the process.
And so we don’t have to arrest you, but we’ll drag you through the courts for years and years and years, just to hammer it into people’s heads that it’s much easier not to go against these people in power. And then the step beyond that is to weaponize social media networks, create legions of bot accounts, online harassment. And the step beyond that is to, again, just make life difficult for people that are spreading a message, which is inconvenient or disliked, that the people that push in that direction are going to have trouble in their lives and it’s easier just to go along with the way things are.
Farieha Aziz: Certainly, and that message has been received because a lot of people I’ve been speaking to who are facing cases are saying, why bother? Why did you say that? Just retract it and make it go away because nobody believes that you should fight to fight, given what it is.
And they don’t see this as a fight to be fought. And also what you mentioned about the process, because on the face of it, we have constitutional courts. We have due process. We have the constitution. But none of the procedural safeguards are available, and that’s the dilemma and crisis where it’s so easy to flout procedure. It’s so easy to drag somebody and then also say, well, you know, it was really judicial outcome. What can we do? Now it’s up to the courts to decide, right?
And that then in terms of the public narrative around it, it’s unfortunate because we’ve had, over a period of time, this issue of enforced disappearances and missing persons.
And in 2017, we saw four to five bloggers just went missing. And a lot of people tend to respond with, you know, if somebody’s committed a crime or if you have a problem with them then charge them under the law or take them to court. Except when you say that it’s not an equal footing in terms of these cases and the resources to fight them and how you’ve taken to court as well.
So this is something I also now caution against because this is not a level playing field. And the tools at the disposal of the state and other mobile group parties and pulling people through courts, is another ordeal to the extent where a lot of people who’ve been implicated in these cases, wonder – is it, and it’s horrible to put it this way, is it better to maybe disappear for a day and then come back rather than be dragged through for a year, et cetera? And this local journalists and some journalists have said, is it just better to be punched a few times, but then not have to go through this entire thing? Because what we’re witnessing right now is a whole range of people going missing, physical attacks, jail arrests, criminal prosecutions, other kinds of stress and intimidation. Not to create a hierarchy of what is most abusive, all of it is abusive and it takes a toll on the person going through it, and also the person’s family and friends and work-life and everything is affected.
Michael Karanicolas: Yeah, that’s sort of, one of the other things about locking somebody up is when you lock somebody up, typically you have to give them a release date.
So if a journalist is convicted of defamation and is jailed for a year, well, you know that person’s not going to be around for the next year to criticize you, but in a year that person’s going to be out and is presumably going to go back to work. It is going to be an inconvenience again, whereas these processes from autocrats or from a repressive governments perspective, the fact that it is so endless, allows them to be weaponized that in some ways is worse than traditional repression.
Farieha Aziz: And that’s the other thing. About convictions, and this is also a discussion that we’ve been having. So it’s not even necessarily about convictions. Usually, people the measure for a law and how bad a law is, how repressive it is, is about -okay so how many convictions under it let’s see are journalists and dissidents, right? They’re not even pursuing cases to take it without conviction, because you’d have to put an effort into prosecution. They don’t care about that. It’s really the pre-trial stage where you see the maximum amount of coercion. Where you have the least amount of remedies and procedural safeguards, even though three should be far more.
Because the attitude of even courts I’ve seen it before for some cases is, for instance, article 10A was brought up, which is our due process law, and the lower court, a magistrate seem to be of the opinion that these rights would kick in once the trial commenced. But what about pretrial? If the investigation is not fair, the entire process is not fair, how will you move towards a fair trial? What about opportunity for hearing when they file an application for search and seizure permissions or arrest permissions? The accusers aren’t notified. You have no idea of the escalation, unless you’re keeping tabs on yourself. You know the basic procedure remedies and safeguards are not available to you.
The law says you require a warrant but they act without warrants. You’ve challenged these things in court, and the maximum relief you get is – a summon is going to be suspended or the case will go away, but there’s been no accountability that’s followed. There’s been no deterrence that if you’ve done this in one, the investigation agency, or even for that matter, the regulator, it’s not going to repeat the same action.
So we’ve got cases upon cases going to courts. These same actions are repeated. There are high court orders saying you must provide notice, and must do this, you must do that. And still, no copies of the complaint are sent. So the impunity with which they are acting, and it also shows the failure breakdown of rule of law in general, that parliament has not extended the oversight it should have and our courts have not.
And this is also something that we’re having a discussion about is that the constitution can not be something that the high courts or the Supreme Court deals with. It starts right with the manuscript sessions court of the law, of course, because that is where you need your procedural safeguards the most.
Michael Karanicolas: So the nexus with the meat and potatoes, criminal procedure issues or the procedural questions are an important thing to note. I want to sort of pull us back a little bit to the specific surrounds of how these regulations manifest and specific way that online speeches is regulated. And maybe with specific reference back to the nexus between abusive laws that get passed in Pakistan and get passed elsewhere, and the regulatory debates that take place among more progressive democracies. One of the things that you’ve mentioned is that the process underlying the law is so important, and what that can mean is that an identical law that gets passed in the United States and in Canada and in Pakistan can be perfectly fine in the Canadian and the American context, because there are those independent structures holding. But when applied word for word in the same way in Pakistan, it can have very different consequences because of the lack of independence of the judicial or prosecution authorities or what have you. Can I ask you specifically about the way regulatory debates among other democracies can ripple over to the legislative process in Pakistan? I think NetzDG in Germany is a natural starting point. I imagine one could say the same thing about this section 230 debates here in the U.S. as well.
Farieha Aziz: Absolutely and so while the long okay on paper, the fact is that in practice, due to all of these concerns in terms of institutional capture, et cetera, it plays out very very differently. And what you also have to look for, and this is something I’ve been seeing since the time this law was being debated, is look at the rule of law regime and look at the other protections that exist in these countries that you referenced, that the government and successive governments overtime have reference, various laws, right? Whether it’s UK Anti-terrorism laws, for instance, or the Online Harms Model.
My questions have always been so do people also disappear or are they denied due process, opportunity of hearings, et cetera? Is it that opaque, non-transparent? All of these things matter. So for instance, regulatory powers and debates where PTA’s powers have been justified. Usually, there are blanket statements saying well regulation exists everywhere in the world, well sure when we’re talking about the U.S. for instance, but so does the first amendment. Article 19 doesn’t compare at all. One because of the way it’s framed, two in terms of jurisprudentially. What we have by way of case law and how strong that is, and look at the first amendment and how it’s been interpreted and applied, and also the kind of ownership and investment there is into defending this right in society at large, but also state structured. And often we’re told, well don’t talk about the U.S. Because it’s not comparative. Then you look at Europe for instance, right, or other countries, and you’ve mentioned NetzDG now we say, okay, fine you’re looking at this but what you’re missing out is the privacy protections. The EU as a model for privacy protection, the governance, and the UK’s Investigation Powers Act was struck down by the UK court. And those are also sort of the examples that we cited where our courts had done something similar or that we have these kinds of protections. So the way that it plays out, even with the rules, one, you give overbroad powers to the telecommunications authority.
Then, you bring in rules with even more repressive things, and then PTA came out with a paper referencing different countries that regulation takes place here and then the other. When we said, what is the process? Are they independent? Does Online Harms operate under the influence of the government or is it completely independent?
And what does that independence mean? And over here in PTA’s context it was argued one in terms of expertise. Essentially you have civil engineers who make it as members of the telecom authority, how are they capable of interpreting and applying Article 19 provisions other than the fact that we find it completely illegal and unconstitutional? The parliament has sort of outsourced judicial and parliamentary functions, but even from a common-sense perspective, how are they competent to do that?
And then in the manner that they exercise judgments. And again, in terms of independence, if in your constituting acts, the ministry can give you direction. How are you independent of the government, even if you say on paper, you’re a statutory authority that is independent. Then look at the regime around you. If you’re going to pick up phone calls from influential quarters, send out notices to people that is not independent. You know, all of these factors that influence the regulatory regime.
And so one is this populist, sort of moral, cultural, religious side, where a number of complainants are going to file a complaint. So even one influential person in the media who has one whose case and takes on government authorities when certain blasphemous content has not been removed and that’s something that he will take up. Or then they will block other kinds the websites and political at the behest of influential quarters.
We see these problems and we ask them where else does that happen? You’re talking about regulation, but then there are no certain takedowns of systems as well, right? So give us some variable examples and tell us, on paper and in practice, when you talk to us about a NetzDG or even section 230. An intermediary liability and this has been sort of a big conversation of the last several years since YouTube was blocked for three years in Pakistan.
Where the narrative has been we have to bring these companies and have to convince them to localize, set up local offices, bring their servers, that way, the sense was: we’ll be able to exert a greater content control. We’ll be able to access information that we want readily, which we don’t get right now. So this misconceived sort of notion, but it’s always been driven by control.
How can we assert maximum control over content? And that hasn’t happened. And so they say okay let’s give them the liability protection in a limited manner. They brought it in the form of section 38 in the cybercrime law but then took it back through the rules, like negating it saying, well, we’re going to impose fines if you don’t listen to us.
And so this also mindset has persisted. Often you see, even at the parliamentary level you will have these off-the-cuff remarks, even at the Supreme Court level, ban it they don’t listen, ban the platform if they don’t listen. Just rhetoric, which is damaging when in a day and age where you’re talking about e-commerce and digital Pakistan, and a Supreme Court judge in a completely unrelated bail hearing can make remarks saying, well, why don’t you ban YouTube because there’s all this content available about us and the telecom authorities aren’t doing anything? So in a nutshell, this adds to regulatory uncertainty in Pakistan.
Michael Karanicolas: Yeah. And I think it is worth emphasizing the difficult situation that the platforms are in and operating in these markets. And I have argued that this challenge and this problem is of their own making because they charged into these markets without doing a human rights impact assessments at the outset. They just wanted the market share.
They wanted to be the first ones in there to grab up as many users as possible and they didn’t do the proper process early on to brainstorm about what they were going to do when faced with these kinds of challenges. But the threats of blocking, the threats of these big fines, the threats, even to the life and limb of the employees of these platforms.
That’s not rhetoric. There are a lot of governments around the world that are deadly serious about this stuff and it does put the platforms in a very difficult situation when they’re asked to be complicit in abusive policies. I want to step back briefly because you mentioned Pakistan Telecommunications Authority.
I hope I’m getting the acronym, correct. But you mentioned them specifically referring to parallel legislation in the UK, in Western democracies, in their sort of reporting on regulatory structures and the government I think doing the same thing. Where there’s a specific move to point to a particular law like NetzDG, or like the UK Online Harms Bill and say, look, this is absolutely not repressive that we’re doing this.
Look at all these wonderful democracies over there, they’re passing the exact same laws and that, you know, to a certain degree these processes in progressive democracies are providing a lot of cover. And I think that this is something that’s true, not just in Pakistan, but this is true among a lot of emerging democracies or fragile democracies where legislative processes that are taking place within the EU or within Canada or the U.S. and maybe solely focused on their domestic impact are also ignoring the international impacts of what they’re doing in providing cover for repressive rules to be written elsewhere.
Farieha Aziz: Absolutely. And so when the executive order was passed in the entire section 230 debate, that’s something that we were watching very closely because it tied in with how can we hold platforms liable?
And that’s something that they wanted to do. So here you see cover and the way that it’s spun and fed to us is – oh look the world’s largest democracy is also having these debates and the government is also coming up with these proposals. So we derive a lot of our penal code based on British law, et cetera. So those kind of parallels we tend to pick up a lot, but then Brazil is something.
And so that’s not a model necessarily what harm is doing, but the fake news catchphrase, that rhetoric has been popularized actually here. And so this is also something that during the previous administration and what’s happening elsewhere in the world has had that impact over here because over the last few years, ministers and governments have been seeing there’s a lot of fake news and essentially that they were doing the same thing where anybody critical of the government was a fake news peddler, right?
And there was no distinction between disinformation and misinformation and legitimate harm to let’s say citizens and what could be some of the approaches to addressing the issue? It was always -well look, this is happening around the world and everybody’s talking about legislating and curbing this menace, et cetera. And look what happened in India with hate speech and WhatsApp, et cetera, and all of that. And even when we talk about India, obviously a lot has happened or the last few years, when we started out debating this law, what was fairly recent was the Supreme Court striking down 66A.
So you also have to look at what governments are doing and then how citizens are responding to that and the challenges being filed before courts and what courts are holding. You can’t just feed us what a regulatory action the government is doing at that time is doing because more often than not, and this is not about which government, whether you’re the global north or global south or wherever in the world.
Typically states and governments tend to be self-serving it’s about preserving a certain kind of power or exerting something and we’ve seen this myth of that larger democracies crumble. The only good thing and this is what we say is the safeguards, the institutions that you’ve invested in over periods of years, and how they can hold fort.
Michael Karanicolas: Yeah, I’m glad that you brought up that. And also I think that we’re in strong agreement to fake news for the entirety of my life has been used as a cover term by autocratic governments to refer to reporting that they don’t like. So the whole explosion of this term in the aftermath of 2016 was I think hugely damaging in terms of its global impact.
And likewise, when you hear debates around section 230, or in the US Senate, particular politicians sort of ranting and raving about how these platforms are out of control and needs to be brought to keel. A lot of the time that rhetoric here in the US gets dismissed because they say, well, they’re just bloviating and they’re playing to their base because you know, the first amendment really limits what they could actually do on the content side.
But people in Pakistan, people around the world hear that. And it’s a message that really resonates among governments that don’t have those kinds of constraints. And that’s not to say that you shouldn’t take a careful and close look at what the platforms do and be critical of them. Both Farieha and I are not in any way are a strong critics of the platforms ourselves, but it’s important for that criticism to be narrow and targeted and towards actual things, because the rhetoric actually can be damaging the way that it impacts legislative processes around the world.
I do want to ask as well, this has maybe not been the most optimistic conversation that we’ve had in terms of challenges that we face. What are some avenues for people who’ve been using to push back against these kinds of restrictions?
Farieha Aziz: I think the good thing at least has been we’ve seen a lot more challenges being filed proactively. Summons being challenged, PTA actions being challenged. Just today, there’s a convention of the Supreme Court Bar Association, press organizations of groups, and they’ve also referenced the Prevention of Electronic Crimes Act as a draconian law and something that is muzzling media freedom. And it was something on the independence of the judiciary and media. So I’m glad that finally, five years later after this law, it’s sort of on the map. This is draconian, it’s repressive. And so while we’re talking about democracy and media freedom and judicial independence, because right there on the map now, as we’re on a broader civil society agenda.
Michael Karanicolas: AV, do you want to ask a question?
Audience Member: Thank you very much for your decisive analysis, it’s a really fantastic series. I wondered if you could clarify the example mentioned about the oil spill. I was wondering, it seemed that the organization was the one that had the office raided and the devices confiscated. And I wonder what had happened to the individuals involved subsequently? And it made me also worry about your safety, what steps you take, because you’re such a powerful advocate, Ms. Aziz, in your work.
But my main question was really in Pakistan, how these debates about censorship affect visual culture? To what extent do these kinds of repression affect the dissemination of images, art, memes, and I wondered if you could just discuss how this kind of analysis applies to images of that kind? Thank you.
Farieha Aziz: Thank you for your questions and let me begin with the petroleum company case. The level of escalation and coercion after the raid, the taking of devices, from what I know and heard, the company just wrapped up. Those individuals are not here anymore. And that was the level of influence and what happened as a result of the pressure of this case, but also beyond the pressure of the case, like outside what transpired.
In terms of safety, that’s always a concern obviously. This is something that’s a refrain amongst journalists and dissidents, is you don’t know where red lines are. They constantly keep shifting. At least personally what we had decided, and there’s also been a systemic sort of crackdown against CSOs and NGOs. Labeling has been there for several years now, foreign-funded Western agencies, this that and the other. But we’ve been cases of terrorist financing, trumped-up cases, being registered against dissidents or organizations, or just, they’re not getting a regulatory screening, they don’t pass that. So they can’t keep their organizations functional or they’ve been asked to close down. So we’ve seen all of that as well as far as the organization’s concerned, we also thought that a lot of things they would do in a personal private capacity as well. At the moment, it runs a bit non-funded and we wanted to transition into a citizen-led non-funded movement of sorts. We’re still there on paper, but these are some of the mitigation steps. I mean, there are people who can’t do this. There are people who need to keep on their employees and offices and pay them and et cetera.
And it’s becoming a very difficult space with other people are getting attacked. And so it’s really about, I think for us, the strength now is that there’s conversation around it and there’s resistance emerging. Where you see civil society groups and press groups and bar associations. So the legal community is sort of coming together because it’s now a crisis for everybody.
And that I think you saw support from that, that if something happens then there’s some people to turn to, which, you know, we’ve seen in the case of journalists as a Journalist Defense Committee, that’s been set up by the Pakistan Bar Council. And so immediately when there are cases they file representations, at least that worry is not there.
In terms of your last question about cultural impact or visual impact. So satire is also not taken or appreciated or there’s a lot of offense towards it. One of the first websites actually, which was blocked in Pakistan was a satirical political website. Obviously in terms of cartoons and defaming and morphed images that was a concern which existed prior to the law. And we used to use examples saying, I remember I used to use this example from Turkey a lot where this doctor apparently has shared a meme of Erdoğan as Shrek, and he was being prosecuted for it. I said, tomorrow, if this happens here this is most likely somebody’s going to file a case.
We haven’t seen that landscape change so much per se in terms of the visuals of it, because as a country and as a people, we like our humor. Our humor’s quite dark given things that happen around us as one of our survival mechanisms. So we’re big on memes and political humor and WhatsApp forwards and images and et cetera all of that is there. But obviously, there’s a kind of backlash, not so much legal just yet, but certainly, that’s something that still keeps going.
Michael Karanicolas: Yeah, I think it was the Pakistan cyber-crime law that had a specific provision that made it illegal to digitally alter people’s photos. This was back in 2014 and I remember even then seeing that I think, I think it actually is still in the law, but seeing that and thinking like that’s not going to mesh well with internet culture, but yeah, it’s illuminating to the disconnect between the vision of the internet that is often pushed forward or represented in this legislation and how people experience it. There can often be a very wide gulf between the two and the criminalization of normal or innocuous online behaviors is a potent tool by governments who are going to exert control over their critics. So I think we will leave it there.
Thank you so much for Farieha, for being with us. I mean, I think it was a very illuminating conversation. Thank you. And goodbye.
Natalie Monsanto: Thanks to our co-sponsors in this series, UCLA Law’s new Institute for Technology, Law & Policy. They’re @UCLAtech on Twitter. Go check them out. You can also find Farieha Aziz on Twitter at @FariehaAziz as well as her org Bolo Bhi. To follow us on social media, look for @promiseinstucla. And please, if this episode was valuable to you, support our work. Visit law.ucla.edu/supportpromise to make a donation at any level and help future conversations like these come to be. Subscribe to the show to be sure you catch the rest of the series as it’s released. And until next time, take care.