Pakistan not only faces economic and political challenges but has also to contend with multiple pressing issues highlighting the complexities of country’s socio-political topography and diverse array of obstacles it encounters.
Issues that are becoming increasingly common are dissemination of misleading information to violations of fundamental privacy rights, including unauthorized interception of phone calls or surreptitious video recordings involving politicians, members of the judiciary, bureaucracy, and journalists. They require immediate attention with concerted efforts for their resolution.
Although Article 14(1) of the Constitution of Islamic Republic of Pakistan says: “The dignity of man and, subject to law, the privacy of home, shall be inviolable”. The language though wider in connotation does not delineate the precise scope of privacy protection or elucidate exceptions wherein privacy laws may not be invoked.
Furthermore, there exists a notable absence of clarity in legislation regarding legal powers vested in law enforcement agencies for monitoring in special cases, including the interception of electronic communications that can provide clear guidelines and parameters concerning privacy rights and their limitations.
Unfortunately, despite sharing the draft of the Personal Data Protection Bill early in July 2018 and then in May 2023 by the Ministry of Information Technology and Telecommunication, inordinate delays have been observed in finalizing and presenting it for approval in either house of Parliament. The proposed personal data protection law includes provisions aiming to safeguard an individual’s privacy and ensuring responsible handling of personal data.
Key elements encompass obtaining consent for data processing, providing notices to data subjects, stringent security measures to prevent unauthorized disclosure, and defined data retention requirements. Additionally, the law outlines procedures for addressing data breaches, granting individuals rights, such as access, correction, and withdrawal of consent.
The Bill envisaged establishment of a regulatory body, the Commission, to ensure oversight and enforcement, with powers to issue directives and impose penalties for non-compliance. Furthermore, the law delineates conditions for cross-border data transfers and establishes mechanisms for redressal of grievances. Overall, the law serves to balance the need for data utilization and for protecting individuals’ privacy rights in an increasingly digitized world.
Delay is particularly concerning, given the alarming instances of data breaches.
These infractions highlight a critical need for robust data privacy laws to safeguard sensitive information and hold perpetrators accountable. However, absence of concrete action against culprits emphasizes the urgent necessity for swift legislation to plug this glaring gap.
In spite of shortcomings in the proposed law as mentioned above, it remains imperative for the government to table it for approval and subsequent implementation. This would demonstrate the government’s commitment to addressing issues of personal data protection and acknowledge the importance of establishing legal frameworks to safeguard individuals’ privacy rights.
In our country, numerous incidents have surfaced that go beyond data breaches, unveiling a disturbing trend. For example, the unauthorized release of video tapes and telephonic conversations involving politicians and members of judiciary. Moreover, photographs and videos of individuals under investigation have been circulated on social media platforms, while in custody of law enforcement officials.
Journalists have also been implicated in dissemination of private conversations of politicians during interviews, without obtaining their consent. The situation reached a tipping point with the revelation of a telephonic conversation between the mother-in-law of the former Chief Justice of Pakistan and the wife of a senior counsel. In another case, son of ex-Chief Justice Saqib Nisar was purportedly found soliciting a share of funds in exchange for securing a political party ticket.
Following the above events, a debate triggered whether or not, recording of audio and video calls is a breach of privacy right. In C.M.A. No. 3932 OF 2023 IN CONSTITUTION PETITION No. 14 OF 2023 AND CONSTITUTION PETITION NOS. 14 to 17 OF 2023, the Supreme Court discussed the matter of recusal but the Chief Justice along with other two members of the bench refused to recuse himself from the bench even though their names had surfaced in one audio call.
In all the above, it remains unclear whether the act of recording was carried out by government agencies or by whistleblowers. When considering legal environment in the United States concerning call recordings during conversations, such practices are primarily addressed within criminal statutes and state codes.
Many states categorize call recording as eavesdropping, wiretapping, or a form of intercepted communication. Before initiating recording, individuals may opt to adhere to the principle of one-party or all-party consent, depending on the regulations stipulated by the parties involved in the conversation. However, if a call is recorded by a third-party who is not involved in the conversation but acts as a whistleblower to provide evidence, it may not be considered an illegal interception.
The Occupational Safety and Health Administration (OSHA) and the National Labour Relations Board (NLRB) in the United States do not support employers’ policies prohibiting photography or videography and provide complete protection for whistleblowers who record such media. This principle was affirmed in the case of Franchinivs Argonne National Laboratory, where it was established that employees have the right to protection against retaliation if they can demonstrate that their termination was related to recording made to report workplace safety concerns.
Moreover, the provision stated in 18 U.S. Code § 2511 outlines circumstances under which intercepting wire, oral, or electronic communications by individuals not acting under the colour of law is not deemed unlawful. According to this statute, interception is permissible if the individual is a party to the communication or if consent has been given by one of the parties involved. However, this allowance does not extend to interceptions made with the intention of committing criminal or tortious acts contrary to the laws of the United States or any state, as stipulated by the Constitution.
Similarly, the EU Directive 2002/58/EC of the European Parliament and of the Council, issued on 12 July 2002, aims to safeguard the confidentiality of communications, as outlined in Articles 5, 6 and 8. However, within the same directive, Article 15 delineates limitations on these rights and obligations when deemed necessary, appropriate, and proportionate within a democratic society. These restrictions are designed to protect national security, defense, public security, and the prevention, investigation, detection, and prosecution of criminal offenses or unauthorized use of electronic communication systems.
The Pakistan Telecommunication (Re-Organization) Act, 1996 empowers the federal government, under section 54, to authorize individuals to intercept calls or messages for national security or for crime investigation purposes. Subsequently, Pakistan in 2016 introduced Prevention of Electronic Crimes Act (PECA) but this Act grants broad powers and allows blocking of information in vague terms, while section 38 penalizes disclosure of personal information without consent.
Despite the existence of stringent legislation, there remains a palpable need for proactive enforcement by both the judiciary and law enforcement agencies. While privacy rights are fundamental, it is crucial to discern between private and whistleblower obligations. Recent incidents of clandestine video recordings involving judicial, political, and administrative figures underscore rampant misconduct and corruption. It is, thus, imperative for Parliament to promulgate laws that safeguard citizens’ privacy while holding wrongdoers accountable, for fostering a culture of transparency and accountability in Pakistan.
Copyright Business Recorder, 2024
The writer is a lawyer and author of many books, and Adjunct Faculty at Lahore University of management Sciences (LUMS), member of Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE). She can be reached at [email protected]
The writer is a lawyer and author of many books, and Adjunct Faculty at Lahore University of management Sciences (LUMS) as well as member of Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE). He can be reached at [email protected]
The writer is a US-based corporate lawyer, and specialises in white collar crimes and sanctions compliance. He has written several books on corporate and taxation laws of Pakistan. He can be reached at [email protected]
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