Legal analysis

Pakistan: Telecommunications (Re-organization) Act

In January 2012, ARTICLE 19 has analysed the provisions of the Pakistan Telecommunications (Re-organisation) Act, 1996 (the Act) to assess their compatibility with international standards relating to the rights to freedom of expression and information and privacy. ARTICLE 19 finds the Act has many provisions which are incompatible with Pakistan’s obligations under international law and violate citizens’ rights of freedom of expression, access to information and protection of privacy.

As a general matter, the Act gives broad, largely unrestricted powers to the Government of Pakistan to issue policy statements and regulations in the name of protecting national security. These provisions provide few limitations on the ability of the government to issue directives and orders in violation of freedom of expression and privacy rights.

In addition, the Act criminalises vague and broad offenses, banning the dissemination of “false” or fabricated” information, as well as indecent materials and causing “mischief.”

Furthermore, the Act allows for the shutdown of communications both individually with a vague warning, and in broader cases, based on a decree by the government of potentially the entire telecommunications networks. 

Finally, there are significant problems with the broad powers of surveillance given under the Act. It allows for the interception of communications with little or no regulation or oversight. It also places restrictions on the use of encryption by users to prevent unlawful interception of their communications. These create a significant chilling effect on telecommunications users’ ability to seek and receive information.

These concerns are not theoretical. Over the past several years, the Act has been used by the Government to suppress freedom of speech in the country. It has been cited by the Government as the legal basis for numerous violations of freedom of expression, including the indiscriminate and unlawful blocking of web pages, filtering of communications systems based on keywords, the stopping of internet services using encryption and the ordering of mass surveillance of communications systems.  Its revision and reform is therefore more urgent than ever.

Key recommendations:

• Section 34(d) of the Act - creating criminal penalties for dissemination of information which can be considered false, indecent or obscene - should be eliminated.

• Section 34(h) of the Act on mischief should be eliminated.

• Section 54(2) of the Act - authorising the shutdown of communications in an emergency - should be removed.

• Section 54(3) of the Act - authorizing the interception of communications - should be removed and replaced with a detailed provision in the criminal procedural code setting out the limited circumstances in which interception can be approved by an independent judge.

• Broad range of provisions restricting freedom of expression and freedom of association to protect national security and public order should be amended to comply with international standards.

• Provisions which restrict the use of encryption by users, and regulations and decrees which restrict its provision by providers, should be eliminated. 

 

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