The Prevention of Electronic Crimes Act (2016), popularly known as PECA 2016, may not have been enacted with the best of intentions by the Pakistan Muslim League Nawaz (PMLN) government back in 2016. But PECA 2022, promulgated by the current regime through a presidential ordinance, has morphed it into a weapon that has the potential to be exploited to stifle free speech, silence dissidents and haunt political opponents.

In its original form, the PECA 2016 sought to criminalise the unauthorised access to or interference with information systems, critical infrastructure or data; the unauthorised copying or transmission of data, glorification of an offence, cyber terrorism, hate speech, electronic forgery or fraud and the unauthorised interception of transmission not open to public. Additionally, the PECA 2016 criminalised offences against the dignity of a “natural” person or harm done to the reputation or privacy of such a person, or harm done to the modesty of a person, which may take the form of superimposing a face over sexually explicit image or video, or taking a photograph or video during sexually explicit conduct, child pornography, malicious code (punishable with imprisonment up to two years), cyberstalking, spamming (punishable up to three months) and spoofing (establishing a website or sending information with dishonest intention based on counterfeit sources indented to be believed as authentic).

The presidential ordinance has radically changed the PECA by introducing a few consequential changes in the Act. The first change relates to the definition of the “person” who is the victim of a cybercrime. Worded as “natural person” in the original Act and redefined as “person” in the presidential ordinance, the scope of the term “person” is no longer limited to human beings but also extends to “company, association, institution, or body of persons whether incorporated or not, institution, organisation, authority or any other body established by the government under any law or otherwise.” Secondly, the law makes offences or abetment under Sections 10, 21 and 22 (related to cyber terrorism, offences against the modesty of the person, and child pornography, respectively) non-bailable, non-compoundable and cognizable.

Thirdly, a person found guilty of wrongdoing under the PECA Ordinance 2022 will be sentenced to up to five years imprisonment (rather than three years in the original Act). Additional rigor has been introduced in the PECA Ordinance 2022 by making it mandatory for the trial court to decide the case within six months or face action from the higher judiciary. For all practical intents and purposes, if it is proved that any remark has harmed the modesty [sic] of an institution or company, it will carry up to five years imprisonment. Interestingly, the concept of modesty in Section 21 has not been explicitly defined. It tangentially refers to digital manipulation of images or videos with the intention of sexually harassing a person.

Even though the PECA Ordinance 2022 seeks to exclude “content against Pakistan’s cultural and moral trends” from the public space, immediate ignition to the presidential ordinance was provided by sly innuendos towards a federal minister in a TV show by a journalist. But let there be no mistake, the move to criminalise references to the alleged moral lapse of public officeholders is part of a larger pattern. The effort to muzzle free speech has assumed a predictable pattern under the current regime.

Calling it ultra vires of the constitution, journalists, lawyers and political parties have challenged the PECA Ordinance 2022 in the Islamabad and Lahore High Courts. The honourable courts will decide the matter in due course. On the face of it, the Ordinance is an anachronistic legislation. There has been a growing recognition that criminalising defamation is repugnant to the concept of freedom of expression. Several international bodies, including the United Nations Human Rights Committee, have called on governments worldwide to abolish criminal defamation. The UN Human Rights Committee says that “States parties should consider the decriminalisation of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.” (General Comment 34). The European Court of Human Rights has emphasised that even if criminal laws in defamation cases cannot be ruled out, the space for criminal laws in defamation cases is nevertheless extremely narrow.

As regards the question of public officials and heads of the states vis-à-vis defamation cases, there is a general agreement that the defamation laws must be infused with the spirit of the principle that public officials must be more, not less, tolerant of criticism and scrutiny. The European Court of Human Rights has specifically observed: A state’s interest in protecting the head of state “cannot justify conferring on him or her a privilege or special protection vis-à-vis the right to report and express opinions about him or her. To think otherwise would be to depart from today’s political practice and conception”.

As opposed to the disproportionality of criminalising harm to reputation, there has been a growing consensus that a proportionate response is to file a civil claim for damages. But even bringing a civil claim in cases of alleged defamation must follow due procedure, including allowing the defendant to present a defence. Additionally, the sanction imposed on the defendant must not exceed the harm done, and procedural elements such as legal costs should not present unreasonable barriers to justice.

The present dispensation is ill-advised to harbour the notion that freedom of expression goes against national unity. The prime minister has been toying with the idea of implementing several systems (often conflicting), including the Chinese style of governance, to get rid of corruption and promote national unity. We must recall that the compromise on free speech in controlled societies such as China, Russia and Saudi Arabia has been partially offset by state guaranteeing better social amenities and a decent quality of life. The governments in Pakistan, by comparison, have delivered only minimal standards of living coupled with a pathetic quality of governance as attested by the state’s performance on several indicators such as the rule of law and corruption perception indices. If the people are not even allowed to speak, it will result in a disaster.

The writer is an assistant professor in the Department of Economics at COMSATS University Islamabad,  Lahore Campus