The You-Tube case (a judicial and public policy perspective)

This article was first published in E-Commerce Law Reports, Vol 14, Issue 4 (www.e-comlaw.com/eclr)

ECLR - Volume 14 Issue 4 pg 22-23(1) 

Author: Senior Partner Josh and Mak Barrister Aemen Zulfikar Maluka;

Co-written by Senior Managing Partner Pir Abdul Wahid (Advocate High Court)

 

The Lahore High Court in its latest order passed on 13-05-2014[1]in the matter of BytesforAll v. Federation of Pakistan, (958/2013)[2] has stated, that in view of the Supreme Court Order passed on 17-09-2012 in response to Civil Miscellaneous Application No.3908/2012[3], the current petitioning parties should refer the matter to Supreme Court of Pakistan for a clarification of the 2012 interim order. This has essentially brought an awkward pause, if not an end, to the much talked about ‘YouTube’ case .One view is that the energy with which the extremely productive and informative deliberations and meetings which took place in the form of expert evidence and efforts from the civil society have been wasted. For many, going to Supreme Court now after attending all hearings at the Lahore High Court will mean that everything will have to be repeated, re-argued and re-represented! Others are of the view that the Lahore High Court quietly passed over a controversial ‘policy time-bomb’ to the Supreme Court. Many others feel that the last minute mention of the ‘pending case’ in the Supreme Court was only deliberate, so a definite judgment would not have to be passed on such a controversial matter!

Introduction

The YouTube[4] ban in Pakistan has more to it than just hurt sentiments and religious provocation. In the last many months we have heard the rants of local Pakistani liberals, NGO’s and social activists that somehow being able to watch YouTube is a fundamental human right which we, as Pakistanis are in desperate need of, as per ‘Article 19’ of the Constitution[5].”As this petition was connected with a few other matters[6] of Pakistan Telecommunication Authority (PTA) censorship, it does not seem likely that Article 19 was being placed in the favour of YouTube’s right to broadcast such material to Pakistani viewers. The more this case and the entire events surrounding it are reviewed and the more we have a look at the YouTube matter in isolation, it just seems to have become a very tiring exercise where the judges are twiddling their thumbs with hopes that they will be able to avoid giving any judgment which could make either the civil society’s liberals or the conservative mullah’s criticize them.

 

Background of the YouTube case ;W.P.N. 958/2013 (Bytes for all versus Federation of Pakistan)

The original petition filed in this case pleads to the Lahore High Court to direct the State Respondents to provide under Article 19-A of Constitution

–           A List of all banned/blocked websites alongwith reasons for such bans;

–          The law or regulations which empower the Respondents to carry out such bans;

–         A clear and concise criterion under which individual websites are to be blocked or banned in Pakistan.

Furthermore, the pleadings pertain to requesting the High Court to direct all the respondents to lift all bans immediately as these bans infringe the fundamental rights of citizens of Pakistan. The main petition claims that fundamental rights of citizens of Pakistan have been infringed by the actions of the respondents, the respondents are using arbitrary powers to censor cyberspace by banning without listing any reasons. According to the petitioners, these websites are used by hundreds of thousands professionals, students, artists, and general public, for educational, entertainment and business purposes.

First Date of Hearing 26-04-2013

On 26-04-2013 the court responded by admitting that the petition was in the nature of a type of public interest litigation as it challenged the blocking of YouTube and other websites by MOIT and PTA. The court acknowledged that the YouTube was a rich knowledge resource and is extremely useful website for educational, professional, and informational purposes. In order to fully understand the issues the court had summoned key representatives of MOIT and PTA besides a number of technical, legal and policy experts (amicus curiae) to assist the court.

It was submitted before the court (by Mr. Kamran Ali representing the Law Department of MOIT) that the controversial movie “innocence of Muslims’” was available on YouTube and Facebook. When the MOIT requested both YouTube and Facebook to block such controversial sites. As a consequence of this request while Facebook acceded to the MOIT request, YouTube declined the request based on the absence of a Multi Lateral Agreement Treaty (MLAT), dealing reciprocal obligations between the states. It was also noted that Pakistan, does not have am Intermediary Liability Clause in its local legislation hence even the presence of MLAT would not be entirely useful in resolving the issue on Google’s terms.

He submitted that in the alternative if Google is localized i.e. it extends local services in Pakistan through Google.com.pk; perhaps the Pakistani Government will be in a better position to filter the local Internet from such undesirable material. He submitted on behalf of MOIT that the ministry was keen to resolve this issue by making efforts to have appropriate laws passed in this regard.

In the comments submitted by Mr. Waseem Tauqeer DG (S&D), PTA Islamabad it was noted that if Google is localized it will be easier to block controversial websites and at the same time YouTube and Google will be available for information and educational purposes. He fully supported the statement by MOIT.He further stated that Pakistan lacks the proper technology to deal with the blocking of urls like https. He said that Saudi Arabia and UAE have attempted the use of 3G technological systems for censoring undesirable material, but that too, has failed. The court also took the opinion of Mr Zartash Afzal PHD Associate Professor, Mr. Khurrum Zafar Software Engineer, Mr Basit Farooq representative Brain Telecom LTD. MS. Farieha Executive Director BOL BHI, who as amicus curiae (friends of the court) agreed with the views of MOIT and PTA.It was duly noted furthermore that in reference to the policy and rights dimensions pertaining to censorship of the content on the Internet. Hence content management over the Internet should be regulated through a broad based neutral agency to be constituted by the government. It was finally submitted that there is a difference behind illegal, harmful and objectionable content and highlighted the importance of the access to information in terms of Article 19-A of the Constitution of Islamic Republic of Pakistan, 1973.

Date of Hearing: 16-05-2013

The MOIT Lawyer informed the court that in compliance of order dated 26-04-2013 a copy of the order has been dispatched to Google Asia Pacific Singapore. The response from Google was that it required time to consult its legal team.

Date of Hearing 19-09-2013

The case was refered to chief justice Lahore High Court to be placed before a larger bench and on 13-02-2014 it was in fact taken over and heard by a larger bench of the Lahore High Court.As per the latest judgment, in the view of Lahore High Court (LHC), the answer to the reopening of YouTube lies in the technological ability of Ministry of Information Technology (MOIT) and PTA to block controversial content as and when it appears on YouTube. Therefore on the request of the LHC, the competent departments like MOIT, PTA and other technical persons has observed that a complete blockage to indecent materials is not possible on secure servers. However after a meeting conducted by various bodies and panels of experts in response to the LHC orders[7] three options have been proposed by the Committee of Experts;

  1. To bar all access to YouTube;
  2. To begin rigorous monitoring program of YouTube for the purpose of identifying http URLs containing objectionable videos for blocking. However blocking http access would result in compromising important aspects of YouTube usage such as creation and uploading of local content, therefore this option was considered to only provide a partial solution; or
  3. Display of ‘Interstitial warnings’ on the pages containing the objectionable material.

After hearing all these suggestions and arguments by both sides, just as the LHC (Lahore High Court) was prepared to conclude this case, an abrupt yet interesting event occurred, namely the disclosure that interim relief in a similar case filed as civil miscellaneous Application No.3908/2012 had already been granted vide order dated 17-09-2012, by Supreme Court of Pakistan where as the petition, on behalf of M.Akram Sheikh and Taufiq Asif demanded the court to inquire why the PTA had failed to take any action in this matter whereas almost a week had passed since the publishing of the video in on 12 September, 2012. The discovery by the LHC that no further orders had been given in this regard by the Supreme Court, prompted the judges to direct the petitioners to approach the Supreme Court of Pakistan in order to get a better clarification of that pending order as per the procedural rules.

The perspective of E-commerce

From a business perspective, it seems that YouTube’s tone and tenor towards Pakistan have little to do with a mandate to keep a healthy commercial presence in Pakistan. The YouTube video platform, which is owned by Google, claims that its policies are the same for every country and yet it has chosen to ignore the requests for blocking or removing the videos by the PTA claiming that this is because Pakistan is not a signatory to the Mutual Legal Assistance Treaty (MLAT)[8]. Such an attitude is often pointed out as a part of the international agenda to condition Muslims to accept ‘religious humor’ casually, as a right to free speech. Is it not the freedom of choice for Muslims to choose not to laugh at a vulgar depiction in extremely bad taste of their Holy Prophet made into a movie?

From perspective of e-commerce in particular, what the ban in Pakistan has done to YouTube’s commercial future is far worse than what YouTube’s absence may have done to Pakistanis. This is something which the bosses of YouTube are probably still contemplating as rival engines like Daily motion and even Facebook are getting the advertisement revenues that might have been in YouTube’s pocket by now. That being said, there is also a certain aspiring community of Pakistani fresh talent of potential v-loggers and online business entrepreneurs, who have now lost their chance to become the future superstars of YouTube. Ever since the YouTube blocking, the PTA has become ever more vigilant of the Pakistani cyberspace, ensuring that many proxy by passing servers which were initially available are also now banned[9]. Interestingly upon complaint, the response from Google (Asia Pacific) has been limited to an email explaining their policy of offering interstitial warnings for such situations alongwith a refusal to accept the invitation of MOIT[10] to join the proceedings[11].

On the other hand, after seeing the reaction of YouTube and Google, it does appear that we have become a nation which is simply not taken seriously anymore by the international community as well as the multinational corporations which really run the world today. To the international community it seems that Pakistanis get ‘offended’ quickly especially when it comes to religion and the insult of religious ideals. One may ask however, is it not a fundamental right to have self-respect and to defend your religious values or to be deeply upset when your religious views are mocked and humiliated? Again from a business point of view, it is interesting to realize though that perhaps Pakistan is not a significant source of viewership or advertising revenue to Google or YouTube. For Google perhaps, the Pakistanis are only interested in searching for pornography on Google or videos of local Pakistani girls in compromising situations on YouTube. They do not have the dollars to pay for expensive YouTube advertisements and hardly have time to think of productive uses of YouTube except for uploading pirated movies and tracking the last videos of their favorite Turkish and Indian dramas. It is this knowledge, backed with the ‘analytics’ Google already has in knowledge about our nation that perhaps they feel. We are not worth being taken seriously like the Muslim communities of Saudi Egypt, Indonesia, Malaysia, India, and Singapore. It seems that the bosses of YouTube were careful in making the video, ‘unavailable’ in these jurisdictions very quickly after a single warning of blocking YouTube from these governments. It seems that had YouTube dealt with the same responsibility with a poorer Muslim country like Pakistan who has equally hurt sentiments, the blockage would not simply have been demanded, nor would there have been a need to involve the courts in the first place.

On a concluding note, while censorship is bad for fundamental rights, attitudes, which seek to impose Western ideals of freedom of speech, are ultimately bad for business. Pakistanis, as the genius nation they are, will find a way to access YouTube even if the PTA blocks all proxy websites. However it is YouTube, almost 2 years later, which is now missing out on important business opportunities, which could have been available to it in terms of advertising revenues and traffic.

References

[1] You can access the entire court documents submitted and the orders passed as a consequence of the court proceedings at the following link at our law firm’s website at https://aemenmaluka.wpengine.com/bytes-for-all-v-s-federation-of-pakistan-etc-w-p-no-9582013/

[2] In response to the full blocking of the YouTube website an NGO, “Bytes for All” filed a Writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan praying that the concerned Authority be directed to remove the ban from YouTube as it was in violation of Articles 14, 19 and 19A. This case is now famous as the “YouTube” case. In this case Lahore High Court has conducted numerous hearing and many arguments involving constitutional rights have been put on record and also many suggestions have been given in order to facilitate the general use of the YouTube and also to keep in mind to protect the sentiments of Muslims.

[3] APP (2012) Supreme Court Directs PTA to block all blasphemous websites today, https://www.app.com.pk/video/preview.php?id=54626

[4] YouTube is only one of the latest multinational corporations to be pointed out at as the new target of the wrath of Pakistani Muslims. It has been accused of having allowed the broadcast and publication of a blasphemous movie in 2012 called the, ‘Innocence of Muslims’ involving disrespectful references to the Muslim faith and their Prophet (P.B.U.H) many of which are of a sexual and lewd nature.

[5] Article 19 Constitution of Pakistan 1979; “Every citizen shall have the right to freedom of speech and expression and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, [commission of] or incitement to an offence “

[6] CM No 2022/2013 and CM. No 2016/2013

[7] In the hearing dated 13-02-2014 W.P.N. 958/2013 (Bytes for all versus Federation of Pakistan)

[8] Dawn News (2013) Government Doing Nothing to Resolve YouTube Issue https://www.dawn.com/news/781870/govt-doing-nothing-to-resolve-youtube-issue

[9] For example Proxfree.com

[10] Pakistani Ministry of Information Technology

[11] The letter has been quoted and recorded in the full judgment available here consequence of the court proceedings at the following link at our law firm’s website at https://aemenmaluka.wpengine.com/bytes-for-all-v-s-federation-of-pakistan-etc-w-p-no-9582013/