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The first round of litigation regarding the game PUBG ended on Friday 24th July 2020 when the Islamabad High Court (Mr Justice Aamer Farooq sitting as a single Judge) handed down the decision in Proxima Beta Pte Ltd v Federation of Pakistan Writ Petition No 1788/2020, and set aside the Pakistan Telecommunication Authority’s decision to ban the said game on 2nd July 2020.

Copious amounts has been written on PUBG ban and on bans of games generally, including by this writer. Much more will be written in the days and weeks to come as since a perusal of the judgement reveals that the decision is a narrow one, on technical and procedural grounds, but one that ultimately avoided the diverse issues of freedom of speech, the monetarization of new forms of work and play, protection of children and standards of public and private decency in the age of hypoconnectivity that this whole matter has raised. It is clear that there will be further litigation before this is finally put to rest; one way or the other.

The petition was brought by Proxima Beta, a Singapore based company which holds the rights to the game in Pakistan. The Company claimed that the decision was made without notice or hearing and furthermore that the provision of law relied upon by PTA as the basis for the suspension, i.e Sec 37 of Prevention of Electronic Crimes Act 2016 was not attracted to this case. They also pointed out that no cogent reasons were given as required for Administrative actions, rather a mere press release announcing the suspension was issued.

PTA’s reply seemed to consist mostly of raising objections on procedural and technical ground, including a lengthy attempt to have the Petition dismissed due to lack of attestation and notarization of the Petitions power of attorney (which grants a person power to file a case for a Company. They also claimed that the suspension was temporary, done since many complaints were made, that a hearing was held on the 9th of July (which included Proxima Beta), PTA also claimed that Section 37 permitted bans on several grounds, and they found the game to be caught by one of them, ie be against the glory of Islam.

The Court dismissed the objection about the Power of Attorney and other procedural minutiae. Coming to merits, the Court found that nothing resembling a reasoned formal order was passed as required by Section 37, instead a press release and minutes of the meeting were released. His Lordship noted with some amazement, that the press release was dated 1st of July 2020, while the minutes of the meeting, where purportedly the decision to ban the game was take were from 2nd of July 2020, in other words the press release was prior to the decision.

Furthermore, the Court found that while it was true that several legal grounds existed for banning information, the press release and the minutes of the meeting showed that none of them “have been taken into consideration of or seem to be the driving force for taking the decision” (paragraph 11 of the order). As the Counsel for PTA freely admitted, the basis for the bans were public complaints and a letter written by the CCPO Lahore.

The Courts remedy to all this has been to set aside the suspension as being without lawful authority. As the hearing has already occurred on July 9th, PTA is required to pass a reasoned order on the matter, keeping in view the mandate and provisions of Section 37 of PECA 2016 or (sic) other applicable provisions of law.

The day before the judgement was handed down, PTA released its decision of the hearing of July 9th. ( _ga=2.209309714.1633352882.1595609102-1730074095.1595609102) It’s a 12 page decision, however, the operative part seems to be paragraph 5 and 6. The authority upheld the suspension on the basis of public health and morality and gave short shrift to arguments put forth that the game permit’s many in Pakistan to earn monetary awards by playing. Rather it appears that they have decided that the game is injurious to the young on the basis of opinions published in papers and letters in various publications, which are with one exception, not shared in any detail and also on the basis of complaints received.

It remains to be seen whether this order will satisfy the mandate laid down by the Islamabad High Court. One suspects that PTA will initially claim it does, when challenged. Yet there are many reasons to believe it might not, both for technical and for substantive reasons. The reasons cited, while certainly legally justifiable, may not apply in this case, claims and assertions of the risk of harm to youngster may does not (at least in the order) seem supported by actual verified examples of harm, with the exception of concerns about the regrettable suicide of one person and speculations as to motive.

The decision might fail for another reason. Substantive law, like PECA 2016 require that rules governing its application be laid down, and in this case, PTA hasn’t framed them, despite an earlier Court order to do so This was noted in the present IHC judgement, with some annoyance. In the absence of rules, the Court might hold the entire July 9th exersize void.

This is all speculation. What is not speculation , is that this matter, both as it relates to PUBG and the flow and regulation of information and entertainment generally, is far from over. Many of the deeper questions of constitutional rights and infringements, of regulatory reach, of dangers and opportunities for young people in our connected, digital age, remain unanswered. This is the first judicial opinion on this. It won’t be the last.

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Affan Khan

Afan Khan is an advocate High Court, practicing in Islamabad for the last 10 years