What the Court and FIA Ought to do in Cyber Crime Cases
There has always been severe criticism pertaining to the law on cyber crimes known as the Prevention of Electronic Crimes Act, 2016 (PECA), even before being enacted by Parliament. The Bill went through several changes before being finally passed. Despite the changes in the Bill, concerns remain regarding the possible misuse of the law.
As anticipated, the utility of PECA has mostly fallen on the negative side which can be gauged from the fact that the Federal Investigation Agency (FIA) has started inquiries for actions which by no stretch of the imagination can be termed as offences under PECA.
Although Article 25 of the Constitution of Pakistan provides for equal treatment of all citizens before the law, it also encourages the state to make special laws for marginalized groups, especially women. Unfortunately, with the enactment of PECA which should have been enforced for the benefit of everyone including women, the same women as victims of online trolling and harassment end up being the ones affected the most through counter actions of the FIA. Women who do complain and share agonizing experiences of online blackmailing, harassment and abuse in the hopes that the accused will be brought to task, end up being held accountable themselves as victims and survivors and instead of any action taken by the FIA, the victims’ complaints get doubted as concocted and defamatory statements and the complainants end up being implicated in baseless inquiries and investigations, which is enough to discourage any victim of harassment from coming forward.
The misuse of the law by FIA needs to be monitored and restrained by the concerned quarters including the Ministry of Interior Affairs and Human Rights, otherwise the public utility of PECA would become redundant.
In this regard, a standard operating procedure needs to be devised to initially scrutinize complaints lodged with the FIA by the victims, followed by a recommendation as to the appropriate action to take in accordance with the offence, but if the complaint is not actionable then it must be dismissed straight away rather than being used as grounds to take action against the victim herself.
In case a counter complaint for defamation gets lodged by the alleged harasser against the victim, the FIA must first check whether the complaint of the victim is such that it prima facie appears to be defamatory and warrants any action. If the complaint by the victim seems to be defamatory indeed, then the FIA should not hound the victim and should let the alleged harasser pursue a judicial remedy before a court of law and not act as a judge, jury and executioner. The court is supposed to decide whether an inscription is defamatory and take cognizance accordingly. The FIA’s job under PECA is merely to investigate an offence.
Apart from PECA, the misuse of Section 499 and 500 of the Pakistan Penal Code (PPC) and Defamation Ordinance 2002 has also been on the rise which has resulted in the silencing of victims of online harassment. The victim of harassment raises an issue anticipating action against the culprit but rather than receiving any substantial support, the victim is immediately served with a defamation notice, a defamation lawsuit, an FIR under Section 499 and 500 PPC, or a summons from the FIA.
The following factors are important for relevant stakeholders to consider:
- Unless it has been declared by a competent court of law that a complaint lodged by a victim of harassment is defamatory, the FIA must be restrained from taking any adverse action against the harassment victim on the assumption that the complaint of the victim is defamatory or summon the victim to prove if it is not defamatory.
- Till the time that the complaint is proved to be defamatory or false, the judiciary should also exercise restraint in proceeding against the victim of harassment. Before proceeding with the main case, the person claiming defamation must be asked to satisfy the court with the maintainability of a defamation lawsuit and once the suit is held to be maintainable, only then should the notice of the suit be issued to the other party. The courts should also ascertain whether the complaint of harassment (which has not yet been proved) has been lodged with the intent to tarnish the reputation of the person named in the complaint or if it has been lodged in good faith despite the complainant failing to substantiate the allegations with evidence.
- The honorable Supreme Court of Pakistan in its judgment reported as 2018 SCMR 791 has iterated the following principle which should be applied and followed:
“12. No doubt section 499, P.P.C. allows a person to bring a separate case against a person who intentionally makes a defamatory statement to harm one’s reputation. However, where a person is sued for defamation on account of giving a statement to the police on the basis of which a criminal investigation commences or is given during the course of a criminal investigation, the claim for defamation would certainly undermine the rule of immunity which is devised as a public policy consideration for proper administration of justice and thus the claim of defamation has to be struck down as being abuse of the process of the court. The rule of immunity is attracted irrespective of the fact whether criminal action succeeds or not. However, at the end of the trial if the acquitted person demonstrates that the criminal action was tainted with malice i.e. the law was set in motion maliciously without a reasonable cause i.e. whatever the complainant has stated in the criminal proceedings was based on fabrication of evidence or a statement was attributed to someone which was not said or written by him then he can be sued for malicious prosecution, scope of which falls within the confines of section 250 of the Code of the Criminal Procedure but nothing more as this section only deals with frivolous or vexatious accusations made in the course of proceedings and not with an allegation of defamation. Section 250 of the Code of Criminal Procedure thus can only be invoked when a case has been proved to be false on evidence. The case of Taylor v. Director of the Serious Fraud Office  2 AC 177 establishes the principle that a remedy in malicious prosecution is available if a person has been found to have maliciously initiated a criminal proceeding in the following words:
‘Public interest requires that a remedy for malicious prosecution should remain available against those who would be entitled to the benefit of the absolute privilege but who have acted maliciously and without reasonable and probable cause during the investigation process. But that is a quite separate matter as it is the malicious abuse of process, not the making of the statement, which provides the cause of action. . It by no means follows that because a malicious complainant can be sued for malicious prosecution or prosecuted for perjury such a person should also be open, at an earlier stage, to a claim in defamation.’”
- The honourable Federal Shariat Court in a judgment reported as 2013 P.Cr.L.J 1737 and the honourable Sindh High Court in a judgment reported as PLD 2001 Karachi 115 have laid down the principle that mens rea or criminal intent is an essential ingredient for constituting the offence of defamation. Therefore, the courts as well as the FIA need to follow this principle before proceeding against the victim who has raised voice to seek justice.
- That FIA does have forensic tools and resources to effectively investigate an offence which mainly relies on digital evidence, but the FIA may also be directed to take the Citizen Police Liaison Committee (CPLC) on board to benefit from the technology available with them to examine that digital evidence. This exercise would help the FIA in ascertaining whether a complaint lodged before it by a victim/survivor has merit and whether the evidence is authentic and sufficient to proceed with the investigation, before taking any adverse action against the victim of harassment rather than the accused who is named in the complaint.
- The FIA should also make sure to curb any revengeful acts from being committed under Section 24 of PECA by an accused person named in the complaint so that victims of harassment do not get discouraged to come forward or fear online character assassination by the accused.
In order to implement the PECA in letter and spirit and prevent its misuse, proper measures need to be considered and acted upon, so that victims of harassment do not get persecuted further by the accused persons or hounded by the FIA for daring to raise their voices to seek justice.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.