Hearing of TikTok Ban Case

PTA’s lawyer was unable to give a plausible explanation for banning TikTok

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“The case challenging the ban on TikTok was heard in the Islamabad High Court today. The case was heard at length – for approximately 45 minutes.

The judge asked PTA’s lawyer why PTA imposed a ban on TikTok . TikTok’s lawyer said that the Sindh High Court and Peshawar High Court had passed orders based on which TikTok was banned by PTA.

Relevant Read: IHC serves notices on Tik-Tok ban case

The judge asked PTA’s lawyer to read out relevant parts of the Sindh High Court and Peshawar High Court orders. PTA’s lawyer read out the interim orders passed by both courts in which TikTok was blocked. After hearing the Peshawar High Court order in particular, the judge held his face in his hands (apparently in utter disbelief that a court would pass such an order).

The judge then noted that the order being read out was an interim order. He asked to see the next Peshawar High Court order. After being provided with a copy, the judge said that the Peshawar High Court had lifted the ban. He also then saw that the Sindh High Court had also lifted the ban. PTA had blocked TikTok well after both courts had lifted their bans. The judge was quite displeased that PTA’s lawyer was trying to misinterpret the court orders and mislead the court by giving the impression that the current ban on TikTok was due to court orders.

It was also noted that both the Sindh High Court and Peshawar High Court orders required PTA to develop mechanisms to curb unlawful content. He questioned PTA’s lawyer whether the only mechanism that PTA could come up with was to block an entire app. The judge lectured PTA’s lawyer about how the antiquated approach to block entire apps is wholly inappropriate for the 21st century. He explained that when a woman was raped while traveling on the motorway last year, the government did not shut down the entire motorway, they caught the culprits and initiated legal proceedings against those specific individuals.

Why only tiktok

The judge said that if government’s only solution was to block entire apps, then it should not stop only at TikTok. He noted that YouTube and other similar apps – and the internet as a whole – also have objectionable content. He explained that TikTok, YouTube and the internet are a source of income for many Pakistanis. They are also used for entertainment, education and information. The judge asked PTA’s lawyers why action has only been taken against one app.

The judge expressed his disbelief that PTA would ban an entire app only because of certain content. He questioned whether PTA had ever conducted an impact assessment of banning TikTok . He explained that where a crime in a neighborhood is committed, neither the city, nor the neighborhood, is closed completely and law enforcement agencies focus on catching the culprits without disrupting the lives of innocent, law abiding citizens.

At this point, PTA’s lawyer explained that when the Sindh High Court and Peshawar High Court cases were ongoing, TikTok was highly cooperative but as soon as those cases were concluded, TikTok stopped cooperating. He added that PTA tried to communicate with TikTok from 13 – 20 July and kept requesting a meeting, but TikTok chose not to respond. PTA’s lawyer said that he agrees with the judge that this is the 21st century – and in the 21st century, there are emails and companies should respond immediately to PTA’s emails.

PTA’s counsel explained that with all other platforms, users must search for content to be able to see objectionable materials, while on the other hand, TikTok shows objectionable materials to all users. The judge, who by this point was quite visibly angry, remarked that this is not a cogent justification to impose the ban. He said that no app shows objectionable materials itself, and such materials are only visible if an individual searches for specific content.

IHC unhappy with PTA’s explaination

The judge said he finds these arguments wholly unacceptable. He explained that PTA needs to mature and keep up with the times, and that a company not responding to PTA’s emails does not give sufficient basis to block an entire app. He reiterated that so many Pakistani citizens are using and benefiting from TikTok and other such apps and are using them for positive purposes.

The judge then asked what specific law TikTok was blocked under. PTA’s lawyer said the app was blocked under Section 37 PECA (not referencing the Rules perhaps because the same judge has already ruled that the Rules are prima facie unconstitutional and is hearing several separate petitions challenging the Rules). The judge asked PTA’s lawyer to read out Section 37 PECA, which he did.

The judge remarked that if PTA wants to implement Section 37 PECA in this way, it should ban all entertainment apps available online. PTA’s lawyer explained that they had an understanding with TikTok and TikTok was not complying with that understanding. The judge reiterated that PTA’s conduct was unacceptable.

The judge noted that Section 37(3) PECA requires PTA to act in accordance with directives issued by the Federal Government. He questioned whether any specific policy directive had been issued by the Federal Government to block TikTok or to allow PTA to block entire apps.

PTA’s lawyer, unable to reference any specific direction issued by the Federal Government, said that TikTok had been banned in other jurisdictions, including India. The judge remarked that the ban in India was not because its regulators engaged in moral policing, but because of political issues between India and China. He sarcastically questioned whether the Federal Government had also issued a policy directive to ban Chinse apps.

At this point, the judge said he has heard enough and will proceed to dictate his order. At this time, the petitioner’s lawyer intervened and requested permission to make a brief intervention. She read out PTA’s affidavit filed in the Sindh High Court in which PTA itself supported TikTok and its compliance and in which PTA said it could not block an entire app because of some unlawful content. PTA is adopting different positions in different courts, reflecting that it is acting in bad faith. She requested the court to overturn the ban on TikTok.

The judge, expressing his surprise that PTA had submitted this affidavit in another court only weeks earlier, remarked that before making any decision with respect to overturning the ban on TikTok, he needs to understand whether Section 37 PECA was complied with and whether the Federal Government has issued a policy directive that allows the blocking of entire apps.

Brief Order

He proceeded to dictate a brief order, in which he outlined that:

•          PTA’s lawyer was unable to give a plausible explanation for banning TikTok

•          PTA tried to rely on Sindh High Court and Peshawar High Court orders blocking TikTok, but such orders are no longer in effect

•          PTA’s lawyer was unable to satisfy the court that PTA conducted an impact assessment on the advantages or disadvantages of blocking TikTok

•          Undesirable materials are available on every social media app

•          When asked whether Federal Government directions were issued supporting the ban, PTA’s answer was in the negative

•          Such measures are not justified in progressive society, especially in the current age of technology advancement.

•          PTA is directed to seek the Federal Government’s policy directive regarding blocking of apps and to satisfy the court on the next date of hearing that the ban on TikTok is legal.

•          The Ministry of Information Technology is directed to submit a report outlining the advantages and disadvantages of TikTok and to satisfy the court on the next date of hearing that the disadvantages of TikTok outweigh its advantages.

The judge then remarked that it will be important to review the Federal Government Policy Directive that is duly issued under Section 8 of the Pakistan Telecommunication (Re-Organization) Act, 1996 to understand whether there is any specific policy on the basis of which PTA has taken its action.

The matter will be heard again in 2 weeks – most likely on 23 August 2021.”

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