ISLAMABAD: The High Court of Islamabad (IHC) asked the secretary of the Ministry of Information and Technology to submit a report highlighting the federal government’s policy on blocking or banning popular social media platforms while some of its users resort to its misuse.
A single bench of Chief Justice Athar Minallah issued the instructions in a written petition filed by Muhammad Ashfaq Jutt, vice president of the Pakistan Kickboxing Federation through attorney Usama Khawar.
The petitioner filed the petition under Article-199 of the Constitution, making the secretary of the cabinet division, the secretary of the Ministry of Information Technology and Telecommunications and the chairman of the PTA as the respondents.
The petitioner argued that the ban on TikTok was ultra vires the Prevention of Electronic Crimes Act 1996, the Telecommunications (Reorganization) Act 1996 of Pakistan, fundamental rights enshrined in the Constitution of Pakistan and the doctrine of legitimate expectation under the law.
The IHC, in its order, observed that the attorney for the Pakistan Telecommunications Authority (PTA) was unable to provide a plausible explanation for an outright ban on the TikTok app.
Counsel for the PTA referred to the orders made by the High Court of Peshawar and the High Court of Sindh. However, he failed to show the order, which instructed the authority to impose an absolute ban on access to the app.
During the hearing, the applicant’s lawyer drew the court’s attention to an affidavit, which was filed by the Authority in the High Court of Sindh. He read the relevant part which says; “There are 16.5 million users of the TikTok app in Pakistan and due to any wrongdoing and illegal acts committed by a few users to post objectionable videos on TikTok, the majority (around 99%) of the users do could not be deprived of their right to use the TikTok app. “
The chief justice noted that the app would be misused by 1% of the 16.5 million users in Pakistan and the Authority itself had urged before the CHS and PHC that impose a ban not was not justified. He added that the ban imposed by the Authority does not seem to comply with the principle of proportionality.
He also noted that the technology is a platform neutral. The TikTok app, according to the Authority’s position before the CHS, is a platform legally used by 99% of users in Pakistan to express their talents and creativity. He said it has also become a source of income for many of the app’s users, mostly from the marginalized classes in society. It appears from the Authority’s position before the CSS and the PHC that the advantages of the application outweigh its disadvantages.
He added that needless to say that the need to regulate the app would not justify its blocking. The technological advance is phenomenal, as are its challenges. Blocking or imposing an absolute ban is not a viable solution. Every technology has a negative side and focusing on one percent of its misuse is neither reasonable nor desirable.
“Banning or blocking social media platforms simply because few of its users resort to its abuse does not seem reasonable. The Authority has blocked / banned the TikTok application because, in its opinion, 1% of its users, out of 16.5 million, resort to immoral use of the platform, ”said the CJ IHC.
He added that the Authority alone judged the content of one percent of users as immoral or indecent. It is also questionable whether the Authority applied appropriate standards to judge the obscenity or immorality of the content.
The judiciary was of the opinion that it is not for this tribunal to interfere in matters relating to technology or matters which fall within the purview of moral police. However, it seems, at first glance, that depriving ninety-nine percent of TikTok app users from expressing their talent and creative abilities is out of proportion to its abuse by a few.
Justice Athar argued that this was certainly not a solution to address emerging challenges due to the phenomenal advancement in technology. The learned lawyer could not show any order issued by the CHS or the PHC ordering the Authority to block or ban the TikTok application.
Therefore, the court granted the Authority the opportunity to review its decision in consultation with the federal government, and the secretary of the Ministry of Information and Technology is expected to advise the Authority regarding federal government policy.
He also ordered the IT secretary to submit a report no later than the next court date, including highlighting the federal government’s policy on blocking or banning popular social media platforms simply because a few abuse it. After giving the instructions, the judiciary postponed the hearing to August 23.
Copyright Business Recorder, 2021