Repeal PECA
Published in The News International, June 15, 2025 under the titled ‘Why PECA 2025 fails the test.”
In 1962, John F Kennedy said, "a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.”
Kennedy didn’t live in the age of blockbuster social media, where the World Economic Forum has labelled disinformation as a major threat to democratic societies, and the American neoliberal idea of the marketplace of ideas self-correcting seems naive.
Disinformation is a problem without a silver bullet solution. That it must be regulated is hardly up for debate. But as citizens, we must always question whether regulation can meaningfully balance free expression, due process and safety. We must probe whether the law is being framed to protect our rights or whether the spectre of fake news is merely a pretext to protect the most powerful. Balance, after all, is the essence of constitutional democracy.
The Peca (Amendment) Act 2025 is so unbalanced it flings free speech into the stratosphere, designed to protect feelings, not freedoms – especially the feelings of those in power.
Balance is a high bar to expect from a law that was passed within 15 minutes in Parliament, without any meaningful consultation from the people it is most likely to impact. The result is a vague criminal law masquerading as a solution to online disinformation.
Almost the entirety of the 2025 Act is unconstitutional. Consider its two chief prohibitions: (i) creating a criminal offence for ‘fake’ and ‘false’ information (non-bailable); and (ii) prohibiting content that casts ‘aspersions’ against members of the state. These aim to prohibit what Article 19 (free speech) and 19A (free information) of our constitution expressly protect: criticism of state institutions.
Something the Islamabad High Court unequivocally stated in 2022 violates the constitution and creates a ‘chilling effect’ around free expression. A host of other precedents, from the Lahore High Court to the Supreme Court, cement this view. But like certain recent verdicts, the government has chosen to ignore these views entirely. It has created legislation where unpopular views now risk imprisonment, arrest or frozen bank accounts. No press can be free in such an environment.
It also runs counter to the universally acknowledged principle that the threshold for restricting speech against public officials must be extremely high. A principle expressed by the American Supreme Court in New York Times v Sullivan (1964) which requires that the state show ‘actual malice’ before speech against public officials can be restricted.
Our constitution allows for restrictions on speech, but only those that are ‘reasonable’ – and as the Supreme Court has explained: ‘proportionate’ and ‘necessary’ to prevent real harm. None of these safeguards exists in the law as it currently stands. For example, when it comes to speech being deemed ‘anti-state’, the court has held that there must be a ‘clear and present’ danger to the country for a restriction to meet the criteria for ‘reasonableness.’ Casting ‘aspersions’ doesn’t come close to this standard.
To be sure, one could defend the law and say it only applies to ‘fake’ and ‘false’ information. However, these terms lack clear standards and are left intentionally vague. The information doesn’t even need to be a statement of fact, opening the door to expressions of journalistic opinion to be prosecuted. The recent past has shown only too well that the state is willing to label any criticism of the dominant state narrative as ‘fake news’.
These provisions empower the state to decide what counts as the ‘truth’. The body tasked with making that determination under the Act is appointed entirely by the executive – the very organ that these provisions have been brought to protect.
Since 2016, when it was enacted, Peca has been less about protecting people and more about protecting the state. As a recent report by the HRCP concludes: “Since the enactment of Peca 2016, the law…has, instead, been used frequently against dissidents – particularly journalists and political activists – as well as women who have complained publicly of harassment.”
The 2025 amendment entrenches this misuse further. Disinformation serves as a pretext for a law that follows on the heels of the deployment of surveillance technology, firewalls and amendments to the Official Secrets Act that seek to control the narrative.
Online harms should be regulated, but not at the expense of fundamental rights. The only way to get the balance right is to respect ideas of proportionality and open consultation. Let citizens voice their concerns, let journalists weigh in, and perhaps debate a law in parliament for more than 15 minutes.
As Justice Mansoor Ali Shah wrote in an excellent recent decision: “In our view, the principle of proportionality at its most functional level ultimately hinges on a singular, decisive question: whether the interference with private rights is justified by a corresponding and weighty public interest.”
The Peca (Amendment) Act, 2025 fails this test.
