Saturday, April 27, 2013

YouTube Case : Bytes For All v. Federation of Pakistan. Lahore High Court Lahore. Update

By Yasser Latif Hamdani

Update on Bytes For All v. Federation WP 958/2013 aka “Youtube Case” before Justice Mansoor Ali Shah of the Lahore High Court Lahore.  I shall refer to myself as “counsel” throughout.
26.4.2013 – today – was the 7th date of hearing in the Youtube Case.  The counsel arrived at the Court at 0830. Justice Mr. Shah addressed the counsel and informed him that the hearing was fixed for 1230.  The counsel returned to the Court at 1230. At this time the following Amicus Curiae were also present:

1.       Ms Fareeha Ijaz of Bolo Bhi
2.       Mr. Khurram Zafar
3.       Mr Basit Alvi of
4.       LUMS professor of Electrical Engineering
5.       Mr. Babar Sattar, Advocate Supreme Court and renowned columnist
6.       Mr. Saroop Ijaz, Advocate High Court and renowned columnist.
From the respondents side two people were asked to give their expert opinion. They were not in a strict sense Amicus Curiae as they were representatives of two of the respondents.
1.       Mr. Kamran – member Legal of the Federal Ministry of Information Technology (MOIT)- was asked to explain the MOIT’s POV.
2.       Mr. Waseem Tauqir was the DG Planning and Development at the Pakistan Telecommunication Authority (“PTA”)
Amicus Curiae 2 and 3 were recommended by Fareeha Ijaz and Bolobhi.
The hearing began promptly at 1235.
At the outset Justice Mr. Shah explained the way forward was as follows:
·         First and foremost we must find a way to unblock YouTube as soon as possible, while treading carefully vis a vis the sensibilities that led to the block.
·         Second to devise a regulatory mechanism so that internet censorship does not become an exercise in arbitrary executive action.
Mr Kamran the member legal spoke first:
·         On the issue of Mutual Legal Assistance Treaty (the “MLAT”) between the US and Pakistan, he was of the view that MLAT would be useless as certain laws of Pakistan don’t have reciprocal provisions in the US, in particular the blasphemy laws under the PPC.
·         He informed the Court that Facebook had agreed to the request by MOIT regarding the blocking and removal of certain videos and pages.  (This is of special importance)
·         The way forward he said was through allowing Google to incorporate and open a Pakistan office, which the Google was not doing because Pakistani law did not provide for intermediary liability protection (the “ILP”).  To this the Court suggested that as interim measure, the Court can through order guarantee intermediary liability protection, which could then be legislated upon as well on the recommendation of MOIT.
·         Mr. Kamran said that MOIT recognized that the blocking of YouTube was detrimental to freedom of speech and was also causing a major loss in terms of access to knowledge and information. He spoke of the will to undo the ban but also of the constraints which were stopping such a ban.
·         Mr. Kamran admitted that PTA had no legal authority per se to censor content and that no law existed governing internet /web censorship.
·         Explained the genesis of the Inter Ministerial Committee on website blocking in 2006 when it was formed to deal with “Draw Muhammad Day controversy” and said its mandate is to authorize blockings.
Next to speak was Mr. Waseem Tauqir. His points were:
·         It was not possible to specifically ban URLs of the Innocence of Muslims. This he stated was because while http URLs could be blocked https URLs could not. Therefore the entire YouTube IP was blocked.
·         He explained that https banning would create a number of problems vis a vis commerce.
·         He spoke at length about the viability of the systems in place in
o   China (This he described as the “best”)
o   Saudi Arabia  (This he described as a very capable system)
o   United Arab Emirates 
(It was promptly pointed out that these were primarily repressive regimes whereas Pakistan is a c constitutional democratic state in theory. Justice Mr. Shah agreed with this)
·         He also “forewarned” the court that Twitter – being an HTTPS social site- is going to be the next big challenge.

·         He suggested that one way would be require by law that all websites landing into Pakistan would have to be on HTTP only. That he said would resolve all the problems.

·         He said a joint method of IP + URL blocking is under way.

·         He admitted that YouTube was being accessed all over Pakistan through proxies.

·         He seconded Mr. Kamran that the way out – in so far as YouTube is concerned- was to ensure that Google is allowed to work out an arrangement with the MOIT.

Next to speak was the LUMS Professor.
·         He agreed with the notion that HTTPS could not be banned. However he suggested that there is a blocking device that may be used.
·         He agreed with the idea that allowing Google to come to Pakistan by affording them necessary protections was the only way forward.
Khurram Zafar was the next to speak.
·         He emphasized that the only way any regulation could work would be self regulation i.e. regulating your own choices.

·         He suggested however that a community based system may be evolved whereby certain content could be banned after it is determined to be offensive.

·         He suggested certain Open DNS website as one possible way to ensure this.

Mr. Basir Alvi suggested that the following steps can be taken:
·         Establish a knowledge and take down process whereby the public at large may raise an objection to a website which may then be dispensed with.
·         He said that HTTPS blocking was possible.

Ms. Fareeha Ijaz reiterated her points. Her view is that the intermediary liability protection is the best way forward. She stated that Google may be given notice of the Court’s position and that they would agree to coming to Pakistan.
Mr. Babar Sattar spoke and said the following:
·         Any monitoring framework should not be under PTA’s control but a self regulating authority such as a Section 42 company of the MOIT which should monitor and suggest banning.
·         There should be legislation determining the limits on blockings etc i.e. time period, nature of restriction etc.
·         He also suggested that there should be a clear distinction drawn between illegal content, harmful content and objectionable content. Once this is done, there should be a rights based discourse on that issue.
Mr. Saroop Ijaz made two points:
·         One the absurdity that while petitioners and respondents agreed on the need for YouTube, they were unable to unblock it.
·         Legal status of the inter-ministerial committee (i.e. it is an executive body and therefore its actions are illegal).
The Court has ordered that it be communicated to Google that Court will guarantee intermediary liability protection for it while legislators get around to legislating. Consequently Google Singapore has been sent a notice.
The Court has set two dates of hearing. The first hearing is 3rd May 2013 when Dr. Sania Nishtar will appear before the Court. She is the  Federal Minister for Science and Technology in the caretaker Government.  The second hearing is for Google to make its representations and is 17th May 2013.
The hearing which lasted for about 1 hour and 10 minutes came to an end at 1345. The Judge had to rise because of a full bench hearing in an election matter.
The Counsel’s view:
·         This opens the door for localization of YouTube and eventual reopening of YouTube. 
·         A regulatory framework for how websites will be blocked in the future will arise out of this litigation.

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