Blocking social media platforms: IHC directs official to submit report on govt policy

ISLAMABAD: The Islamabad High Court (IHC) has directed the secretary Ministry of Information and Technology to submit a report highlighting the policy of the federal government regarding blocking or banning popular social media platforms as a few of its users resort to its misuse.

A single bench of Chief Justice Athar Minallah issued the directions in a writ petition filed by Muhammad Ashfaq Jutt, vice-president of Pakistan Kickboxing Federation through advocate Usama Khawar.

The petitioner filed the petition under Article-199 of the Constitution, making secretary Cabinet Division, secretary Ministry of Information Technology and Telecommunication, and the PTA chairman as respondents.

The petitioner contended that the ban on TikTok was ultra vires the Prevention of Electronic Crimes Act, 2016, the Pakistan Telecommunication (Re-organization) Act, 1996, the fundamental rights as enshrined in the Constitution of Pakistan, and the doctrine of Legitimate Expectation under the Law.

The IHC in its order observed that the Pakistan Telecommunication Authority (PTA) lawyer was unable to give any plausible explanation for an absolute ban on the TikTok app.

The PTA lawyer referred to orders passed by the Peshawar High Court and the Sindh High Court. However, he failed to show the order, which directed the authority to impose an absolute ban on the App access.

During the hearing, the petitioner’s counsel drew the attention of the court to an affidavit, which was filed by the Authority before the Sindh High Court. He read the relevant portion which says; “There are 16.5 million users of TikTok application in Pakistan and due to any objectionable and illegal act by few users of posting objectionable videos on TikTok the majority (about 99%) users could not be deprived from their right to use TikTok application.”

The chief justice noted that the app is allegedly misused by one percent out of 16.5 million users in Pakistan and the Authority itself had urged before the SHC and the PHC that imposing a ban was not justified. He added that the ban imposed by the Authority does not appear to be in consonance with the principle of proportionality.

He also noted that technology is a neutral platform. The TikTok app, according to the stance taken by the Authority before the SHC, is a platform lawfully used by 99% of users in Pakistan to express their talents and creativity. He stated that it has also become a source of earning for many users of the app, mostly belonging to marginalised classes of the society. It is apparent from the stance of the Authority taken before the SHC and the PHC that the benefits of the app outweigh its disadvantages.

He added that needless to mention that the need to regulate the app would not justify its blocking. The technological advancement is phenomenal and so are its challenges. Blocking or imposing absolute ban is not a viable solution. Every technology has a negative side and focus on one percent of its misuse is neither reasonable nor desirable.

“Banning or blocking social media platforms merely because few of its users resort to its misuse does not appear to be reasonable. The Authority has blocked/banned the TikTok app because in its opinion one percent of its users, out of 16.5 million, resort to immoral use of the platform,” said the IHC CJ.

He added that the Authority on its own has judged the content of one percent of the users as immoral or indecent. It is also questionable whether the Authority has applied proper standards for judging obscenity or immorality of content.

The bench was of the opinion that it is not the function of this court to interfere in matters relating to technology or issues, which are in the nature of moral policing. However, it, prima facie, appears that depriving ninety nine percent of users of the TikTok app from expressing their talent and creative abilities is disproportionate to its abuse by a few.

Justice Athar maintained that it is definitely not a solution to meet the challenges emerging due to the phenomenal advancement of technology. The learned counsel could not show any order passed by the SHC nor the PHC directing the Authority to block or ban the TikTok app.

Therefore, the court granted the Authority an opportunity to review its decision in consultation with the Federal Government and the Secretary, Ministry of Information and Technology is expected to advise the Authority regarding the policy of the Federal Government.

It also directed the secretary IT to submit a report on or before the next date of hearing, inter alia, highlighting the policy of the Federal Government regarding blocking or banning of popular social media platforms merely because a few abuse it. After issuing the directions, the bench deferred the hearing until August 23.

Copyright Business Recorder, 2021