Deconstructing regulation

The negative influence of social media on public life and government led to the enactment of the Prevention of Electronic Crimes Act (Peca) in 2016. This too was severely criticised at the time for being too harsh.

The Peca law failed to contain or mitigate the continued generation of fake news and harmful propaganda from within Pakistan and overseas. The recent amendment to the law is aimed at stemming this relentless onslaught by those determined to polarise and nurture hatred and chaos within Pakistan, especially among our youth.

The recent Peca amendment only elaborates and fine-tunes the Peca Act 2016 to address ground realities. It is not ideal and may need further amendments, which can be enacted by parliament. Under the current amendment, a new Social Media Protection and Regulatory Authority (SMPRA), (which replaces the Pakistan Telecommunication Authority). and a new National Cybercrime Investigation Agency (NCCIA) are also to be established.

The amendment does not relate to the trials of offences – only to the creation of the SMPRA and the NCCIA. It also spells out the new offence of ‘fake or false information’ under Section 26A, which was not elaborated upon previously. Grave misconceptions about the amendment have been created in the media, relating to the trials of offences. Chapter V of the Peca Act, 2016 already deals with trials which clearly stipulates that “trials of offences including the trial under newly created Section 26A (fake or false news) shall be conducted in normal magisterial or sessions courts with right of appeal guaranteed up to the Supreme Court.”

The SMPRA itself has no coercive powers. The concern is about the creation of a tribunal. Ironically, the tribunal has been created to safeguard the rights of the media.

It is pertinent to point out that any aggrieved person or the authority itself can invoke the jurisdiction of the tribunal. In case of non-compliance by any media platform of a SMPRA directive, the SMPRA may also turn to the same tribunal. Any aggrieved media platform would have right of appeal in the Supreme Court against any adverse orders passed by this tribunal. The tribunal will have no role to play in the trial of criminal offences.

The Peca Act, 2016 does not supersede the normal regime of criminal courts established by the provinces for the trials of offences. Such courts have already been designated in consultation with the respective chief justices of high courts under Section 44 of the Act. Appeals against the orders of sessions courts are clearly stipulated in Section 47, which states that these shall be filed in the high court whereas appeals against the orders of magistrates in district courts shall be filed in sessions courts. Appeals against adverse judgements are already allowed to be escalated and heard by the regular benches of the Supreme Court under Article 185 of the constitution.

Another misconception is regarding the functions and powers of the SMPRA. Under Section 2B of the Peca Amendment 2025, the SMPRA has been given powers to remove online material, which is unlawful and offensive. However, these powers can only be exercised by a written order (not verbal). Previously this same power exercised by the SMPRA’s precursor, the PTA, was unbridled and instructions were often just verbally given.

The SMPRA has been constrained to issue instructions only by written orders that can be challenged by petitioning the tribunal, and thereafter the petitioner (if ruled against adversely by the tribunal) retains the right of appeal up to the Supreme Court. The establishment of a tribunal is also deemed essential as disputed factual questions cannot be tried by provincial high courts.

Another section defines/elaborates upon the meaning of unlawful or offensive online content. The power to remove unlawful online content was already provided under Section 37 of the Peca Act, 2016. The present amendment only elaborates on it. The SMPRA too shall have the power to issue directions for the removal or blocking of content.

The Peca Amendment 2025, only elaborates upon Section 37 in a new Section (2R). In my opinion, this was not even required. It is important to note that the “removable” unlawful/offensive content has been defined but has not been made a legal offence.

The PPP during deliberations on the amendment law vehemently pressed for safeguards against misuse of the law. The PPP can also take credit for the creation of a high-powered Social Media Complaint Council (SMCC), which will hear complaints against the misuse of the law.

Originally, the PML-N government had proposed a punishment of seven years for fake/false information. It was at the insistence of the PPP that this was reduced to three years. The fine too has been reduced from Rs5 million to Rs2 million. The PPP also insisted that a fake news complaint could only be made by an aggrieved person, and not by any government authority.

The PPP also pressed for the provision of Section 2(4) which stipulates that in case of non-implementation or violation of its directions, the SMPRA shall approach the tribunal for orders instead of taking action itself.

Regarding the appointment of officers and employees in SMPRA or the NCCIA, the PPP has insisted that all such appointments be made in consonance with paragraph (g) of Article 38 of the constitution which states that “shares of provinces in all appointments at the federal level shall be secured.”

The main concern and anxiety of media persons stems from the non-compoundable, cognizable and non-bailable nature of the offence of posting or spreading false/fake news. This plus the creation of a separate investigation agency, the National Cyber Crime Investigation Agency (NCCIA) is the main bone of contention.

In Pakistan, the criminal justice system is managed by the provinces. Prosecution and investigative functions should be handed over to provinces, as citizens mostly fear political victimisation by the federal government. It was at the insistence of the PPP that new safeguards were created in the Peca law.

Everyone acknowledges that the media is the Fourth Estate. Therefore, like all other pillars of society, it needs to be regulated in accordance with the constitution.

The writer has served as advocate general of Sindh. He tweets/posts @zamirghumro