Mirza Nasar Ahmad, Additional Attorney General, assisted by Ms. Rukhsana, Assistant Director, Cybercrime FIA request some more time to answer the Court's quarry of having capability to identify the original source of uploading an audio or video on social media.
In case FIA does not have capability of identifying such person or source, learned AAG shall apprise the Court whether it is available internationally. If yes, why has the Federal Government not updated its capacity.
2. The infringement of the fundamental right of privacy by recording and uploading the audios and videos, is a multilayer proposition. The basic questions are:-
(i) Whether any agency, Federal or Provincial, can be allowed to intrude and trespass the privacy for recording audio or videos?
(ii) Even if, on the pretext of State security, an agency intrudes into privacy, whether the material so collected, can be used for any Civil or Criminal action under the law.
(iii) Freedom of speech, being not an unqualified fundamental right, can be allowed to be exercised, when it infringes the unqualified fundamental rights of dignity and reputation.
Breach of privacy must be a felony (crime of higher degree) and making such material public should be intolerable by the state by invoking criminal laws as well as by society, by resorting to civil laws for damages. Though our laws dealing with Electronic and Print Media are required to be reconciled and improved, nevertheless Section 19 of the PECA Act, 2016 ("Act of 2016") addresses the subject for a criminal action, which is reproduced:- "19. Unauthorized interception.- Whoever with dishonest intention commits unauthorized interception by technical means of-- a. Any transmission that is not intended to be and is not open to the public, from or within an information system; or b. Electromagnetic emissions from an information system that are carrying data, shall be punished with imprisonment of either description for a term which may extend to two years or with fine which may extend to five hundred thousand rupees or with both."
It is hereby clarified that phrase "with dishonest intention" should not stop the regulator from taking action, because in absence of source and legal purpose of using such material, dishonest intention is legally presumed and burden to proof otherwise shall be on person committing such act. The regulator has to take prompt action under these provisions and then ask for discharge of the burden of proof.
3. In administration of justice, though electronic material is admissible as evidence, but its standards are higher than the ordinarily documentary and oral evidence. For ordinarily documentary evidence, the Court has to satisfy itself by examining the scribe and the person in possession of the document, otherwise such documentary evidence is not admissible.
Any audio or video in absence of its source or ownership cannot by any stretch of interpretation be a taken as piece of evidence for proceedings against an accused. The person against whom, such audio and video is leaked, is a victim not accused.
4. In this Court's opinion, the person who violates privacy of a citizen, if not proceeded against by any agency, the officer in charge of the agency should be taken to have connived with the offence and for such laps disciplinary proceedings should be initiated, followed by criminal proceedings, if so permissible under the law.
Though this Court has already passed a restraining order on 26.01.2023, however, it is reiterated and elaborated that airing of audios, videos and printing of such material in regulated Electronic and Print Media, is hereby restrained.
PTA shall ensure criminal action if such material is uploaded on social media from the territory of Pakistan. For any material uploaded or from abroad, appropriate measures for getting such material removed shall be initiated by reporting it to the handlers and regulators of respective websites or forums like YouTube, twitter, Facebook, etc. the measures so taken shall be made public besides making it an official record.
Enforcement of Fundament rights and protection of the Constitution is primary duty of constitutional courts. The violation shall be a contempt of this Court's order. If quick action is not taken by the respective regulators, the officer responsible shall personally be answerable before this Court and on proved negligence or inaction shall be liable to be proceeded under contempt laws along with direction for disciplinary proceedings under the service laws.
5. Constitutional question raised in order dated 12.05.2023 has not yet been answered by the respondents and Federal Government. As different provisions of the Constitution are required to be interpreted along with relevant laws, therefore, notice under Order XXVII-A of CPC is hereby issued to Federal Government.
6. Re-list for 09.06.2023 for further proceedings.