AW: [governance] Pakistan Facebook Detailed Order

Fri Jun 4 06:04:43 EDT 2010

Hi

good discussion.

1. UN Resolutions are NOT binding instruments and do not constitute "international law".  They express the political position of the majority of UN member states (you need simple majority in the UN General Assembly to get it adopted) and it can be used - as Bill has outlined - to support politically your position. But this has no legal meaning for other UN member sates.

2. Interestingly, the very often forgotten Articles of Incorproation of ICANN make a clear reference to internaitonal law and internaitonal conventions as you can see here: 

"4. The Corporation shall operate for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law and, to the extent appropriate and consistent with these Articles and its Bylaws, through open and transparent processes that enable competition and open entry in Internet-related markets. To this effect, the Corporation shall cooperate as appropriate with relevant international organizations."

More comments are welcome

Wolfgang

________________________________

Von: William Drake [mailto:william.drake at graduateinstitute.ch]
Gesendet: Fr 04.06.2010 10:21
An: governance at lists.cpsr.org; Hong Xue
Cc: Fouad Bajwa
Betreff: Re: [governance] Pakistan Facebook Detailed Order

Hi Hong 

On Jun 4, 2010, at 4:47 AM, Hong Xue wrote:

	Many thanks for posting this. It exposes us a new dimension of international law and enforcement in the context of Internet governance. 

	A Court in a sovereign state referred to the United Nations Resolution on, "Combating Defamation of Religious", No..62/154 as the source of international law and ordered the "Permanent Ambassador of Islamic Republic of Pakistan to the United Nations to present a resolution in the General Assembly of United Nations." 

The government that sponsored the non-binding resolution citing it as a source of international law is not too surprising.  But more countries voted against or abstained than supported it; whether they or any international court would have the same interpretation is open to question.  Which is not to say that it can't be used politically, especially to justify national-level actions.

	It deserves a careful thinking what the role of pubic international law plays in the Internet Governance.

Agree.  Also the emergence of world-wide censorship driven by non-state as well as state actors.  Interesting times...

Best

Bill

	On Fri, Jun 4, 2010 at 6:38 AM, Fouad Bajwa <fouadbajwa at gmail.com> wrote:

		Facebook ban was lifted in Pakistan on the 1st of June 2010. The following court orders and proceedings are being shared for information purposes only. A special thank you note to Barrister Zahid Jamil for sharing this elsewhere. Zahid also clarified that the text below has not been proofed or checked by him nor has it been checked by anyone else for typos and hence should not be relied upon as official/authoritative text of the order and is a best effort on someone's part to quickly type out a copy of the order. He made this available under this understanding and under a complete disclaimer from any liability as to its use by anyone.  

		Form No: HCJD/C-121 

		ORDER SHEET

		IN THE LAHORE HIGH COURT, LAHORE

		JUDICIAL DEPARTMENT

		Writ Petition No.10392 of 2010

		Islamic Lawyers Movement

		Petitioner

		Versus

		Federation of Pakistan and three others

		 Respondents

S. No. of

Order/

Proceeding

Date of order/

Proceeding

Order with signature of Judge, and that of parties or counsel, where necessary

		03)                        31.05.2010             M/s. Zulfiqar Ahmed and Muhammad

		                                                            Azhar Siddique, Advocates for the 

		                                                            Petitioner.

		                                                            Mr. Naveed Inayat Malik, Deputy

		                                                            Attorney-General for the Respondents 

		                                                            with Mudassar Hussain, Director,

		                                                            Telecom Wireless.

		             As per the directions of this Court vide order dated 19.05.2010 the Ministry of Foreign affairs on its directions contacted the Embassy of Pakistan in the United States of America.  The Embassy of Pakistan in United States of America, at "3517 International Court, NW. WASHINGTON, D.C. 2008, Tel: (202) 243-6500," represented the following to the United States Department of State.

		"No. Pol-4/2/10                                                                                21 May 2010

		            The Embassy of the Islamic Republic of Pakistan presents its compliments to the Unites State Department State and has the honor to lodge a protest over the holding of a blasphemes contests, "EVERYBODY DRAW MUHAMMAD DAY" by the website "Facebook" and its affiliates.  The announcement of this contest has immensely hurt and discomforted the people and the Government of Pakistan.  It was also deliberately and recklessly enraged millions of Muslims in Pakistan and globally, who attach an immense sanctity to the very holy and sacred status of Prophet Muhammad (Peace Be Upon Him).

		            It is the understanding of the Government of Pakistan that as per the laws of commerce and Business, the website 'Facebook' is governed by the legal jurisdiction of the United States of America.  Accordingly, the Government of Pakistan strongly urges the Government of the United States of America to take effective measure to prevent, stop or block this blasphemous contest immediately.  

		            The Embassy of the Islamic Republic of Pakistan avails itself of this opportunity to renew to the United States Department of State the assurances of its highest consideration.

		The US Department of State

		Bureau of South and Central Asian Affairs,

		(Mr. Brent R. Hartley,

		Director, Pakistan-Bangladesh Desk),

		2201, C. Street, NW,

		Washington, DC 20520.

		Fax: 202-647-3001.

		2.         The Ministry of Foreign Affairs of Islamic Republic of Pakistan received the above stated protest via a fax message No.Pol.4/2/10 dated 21st May 2010 from the Embassy of Islamic Republic of Pakistan which mentioned the Ministry of Foreign Affairs fax message "No.AS(Americas)-1/2010 dated 20th May 2010" stating that an official protest was lodged with the United States Government Department of State.

		3.         The Ministry of Foreign Affairs of Islamic Republic of Pakistan submitted its reply to the Deputy Attorney-General of Pakistan Mr. Naveed Inayat Malik as under:-

		MOST IMMEDIATE

		25 May 2010

		"No.DG (Americas)-1/2010

		SUBJECT:      W.P. NO.10392/10-TITLED ISLAMIC

		                        LAWYERS MOVEMENT, VS. FOP ETC.

		                        IN THE LAHORE HIGH COURT, LAHORE.

		            Please refer to this Ministry's letter of even number dated 21 May 2010 on the above subject.

		            As directed by the Honourable Lahore High Court order, our Embassy in Washington was instructed to lodge an official protest with the U.S. Department of State, which was done on 21 May 2010.  A copy of the protest note is submitted for information of the Honourable Court.

		            While expressing the feelings of immense discomfort and hurt felt by the Government and the people of Pakistan about the contest, the U.S. Government was strongly urged to take effective measures to prevent, stop or block this blasphemous contest immediately.

		            President Obama's Special Representative for Pakistan and Afghanistan Mr. Richard Holbrooke, in his meeting with our Ambassador, conveyed that the U.S. Department of State recognized the sensitivities about the issue and also admitted that many of the images that appeared on the Facebook were "{deeply offensive" and that the U.S. Government was deeply concerned about any deliberate attempt to offend Muslims or members of any other religious groups.  

		Yours sincerely,

		(Sohail Khan)

		Director General (Americas)

		Encl: As above.

		Mr. Naveed Inayat Malik,

		Deputy Attorney General of Pakistan

		High Court Building

		Lahore."

		4.         While respondents No.3 and 4 have also submitted written reply which is reproduced as under:

		That his Hon'ble High Court through the letter dated 18th May, 2010 of the Deputy Attorney-General for Pakistan Mr. Naveed Inayat Malik forwarded the copy of the captioned petition of Islamic Lawyer Movement regarding the issue of, "Every Body Draw Muhammad Day" on the website namely "Facebook" and thereby requiring the answering Respondents No.3 and 4 to submit report and parawise comments in the instant matter.

		2.         "That pursuant to the directions of this Hon'ble High Court communicated to the answering respondents No.3 nd 4 by the Ministry of Information Technology (MoIT) vide letter No.5-1/2005-DFU, dated 18th May, 2010 and requiring the answering Respondents to block the mentioned website on Universal Resource Locator (URL) level immediately and to inform the MoIT accordingly.  Soon upon the receipt of said directions the answering Respondents, i.e. PTA in respectful compliance of this Hon'ble High Court's directions dated 18th May 2010, issued directions vide letter No.2-Misc/2010/Enf/PTA dated 18th May, 2010 to all Internet Service Providers (ISPs) to immediately block the mentioned Website at URL level and continuously monitor the same to ensure compliant with the instructions of the Authority (Copies of said MoIT and PTA's letters are annexed as Annexure "A" & "B").

		3.         That on the next day MoIT vide letter No.5-1/2005-DFU dated 19th May, 2010 required the answering respondents to block mentioned website on Internet Protocol (IP) level immediately.  Pursuant to this direction of MoIT, the answering respondents again issued directions vide letter No.2-Misc/2010/Enf/PTA dated 19th May, 2010 to all ISPs to immediately block the mentioned Website at IP level and continuously monitor the same to ensure compliance with the instructions of the Authority (copies of said MoIT and PTA's letters are annexed as Annexure "C" & "D").  It is worth mentioning here that the answering Respondents, with the aim and objective of sound/secure enforcement and compliance of this Hon'ble Court's directions in the instant matter of grave concern of all the citizen of Pakistan established a dedicated "Crises Cell" exclusively working/monitoring on 24 hrs basis to observe the directions in true letter and spirit.  It is also worthy pointing out here that the answering Respondents, while mindful of this Hon'ble Court's directions in the instant manner and during the course of monitoring of the mentioned Website, found that the mentioned website was accessible from the Mobile Black Berry Service (MBBS) as the main control of this service is outside the country.  Accordingly, MBBS was blocked by answering Respondents on 20th May, 2010 at 12:30 a.m. with a view to block access to the mentioned Website in Pakistan.  However, MBBS was later restored only for the e-mail access and not for the Internet Surfing.  In addition, the answering Respondents during the course of strict monitoring found that majority of objectionable contents was reported on "YouTube" Website, leaving the answering Respondents with no other option but to block the viewing of "YouTube" Website also in Pakistasn.  This fact was intimated to MoIT by the answering Respondents vide letter No.10/12/Dir(ICT)PTA/10 dated 20th May, 2010, as the subject of "Content Regulation" does not fall within the domain of answering Respondents (Copy of said PTA's letter annexed as Annexure "E").

		4.         That the answering Respondents, in respectful compliance of this Hon'ble High Court's directions and the MoIT's directives to, have blocked up until now a total of 10,548 web-links (approximately) either hosting the objectionable contents or providing access to the same mentioned blasphemous contents.  As mentioned earlier, till date two websites namely http://www.facebook.com <http://www.facebook.com/>  and http://www.youtube.com <http://www.youtube.com/>  have been completely blocked in Pakistan.  The complete blocking of "YouTube" was done because of the number of objectionable links be increased to such an extent that PTA had no option but to block the whole website.

		5.         It also worth considering here that the answering respondents on their own have no authority to cause blocking of any website(s) rather it has to follow the decision/directions of Inter-ministerial Committee for Evaluation of Offensive Websites, formed by the Prime Minister of Pakistan in the year 2006.  The meetings of the committee are held in MoIT on regular basis, wherein it reviews the cases and complaints received with regard to offensive website and grant approval for blocking of the same.  As a consequence, the answering Respondents cause blocking of such websites as and when communicated through MoIT.

		6.         The following report is hereby submitted in respectful compliance of the aforementioned orders/directions of this Hon'ble High Court. 

		5.         That due to the immediate and efficient response of the concerned Departments of the Government of Islamic Republic of Pakistan the blasphemous contents published on the portal "Facebook" was blocked and the access to the portal "Facebook" was blocked for its subscribers and non-subscribers in the territory of Islamic Republic of Pakistan with immediate effect.  After perusing the above said steps taken by the Foreign Ministry for lodging an official and sovereign protest to the United States of America's Department of State as well as reply submitted by Government of Pakistan, Ministry of Information Technology (IT & Telecom Division) this Court feels that some effective measure in respect of publication of blasphemous contest have been taken.  Thus, the order regarding blockage of website URL, http://www.facebook.com <http://www.facebook.com/>  is recalled.

		6.         Although the efficient and effective measures of the Government of Islamic Republic of Pakistan, considering the sensitivity of the core issue, are worthy of praise and appreciation, this Court objectively reserves considerable apprehensions regarding a lack of effective mechanisms which could ensure avoidance of any such like events occurring in future, leading to unrest and chaos in the society.

		7.         There are many and numerous countries with majority Muslim populations who have many sustainable and effective mechanisms in place which block or deny, to the general public, access to such blasphemous contents.  The example of such countries could include the countries of majority of Muslim population in Middle East and Asia.

		8.         This Court directs PTA, MoIT and all other related and concerned authorities, dealing with regulation and monitoring of telecommunication and internet access to the general public, to come up with effective monitoring control and implementation guidelines regarding access towards such blasphemous contents over the internet.  As a matter of reference these guidelines could be borrowed from the telecommunication and internet regulatory authorities of the above mentioned countries.

		9.         It should be made clear to PTA and MoIT authorities that a contextual summary of effective monitoring, control and implementation guidelines regarding access to such blasphemous and objectionable contents available over the internet should be submitted to this Court  in a the detailed, comprehensive and written format by the next date of hearing. 

		10.       There are now available International Regulations regarding the publication of blasphemous contents.  The United Nations Resolution on, "Combating Defamation of Religious", No..62/154, reproduced as per the official data available regarding this Resolution on the United Nations portal was came into force on 181.12.2007.  This Resolution came into its final structure vide a Resolution, "A/C 3/62/L.35, reproduced as per the official data regarding this Resolution on United Nations portal was presented and voted at on 20th November 2007 with 95 votes in favour, 52 against and 30 absentees.  Thus, passing the resolution and making it part of the International Law regime.  The Government of Islamic Republic of Pakistan and other countries of Muslim majority voted in favour of this resolution.

		11.       The genesis of this resolution, "Combating of Defamation of Religious", which deals with laws governing the effective control of Anti-Religious materials publication in the individual countries, had its origins in the 1999 Organization of Islamic Countries (OIC) Conference where Pakistan drafted and presented the resolution, "Combating Defamation of Islam", which was passed by the delegates present at the conference.  The title of this resolution was subsequently changed to, "Combating Defamation of Religions" to broaden the scope and implications.  Since 1999, this resolution "Combating Defamation of Religions" was presented at the United Nations Human Rights Commission.  In 2005 a parallel resolution was presented at the General Assembly of the United Nations as well.  The resolution "Combating Defamation of Religions" came into in its present state when the Government of Islamic Republic of Pakistan and other countries of Muslim majority population who wanted and to inform and enlighten the world regarding the deeply sentimental and sensitive perspectives of there majority population regarding publications of Anti-Religious and blasphemous contents.  These countries comprising of majority Muslim population resolved and worked together to formulate an international regime administering the publication of Anti-Religious and blasphemous contents, which would to govern the future conduct of States and individuals regarding the publication of Anti-Religious and blasphemous contents.  Although this above mentioned resolution is non-binding in nature, still the critics of this resolution hypothesize its far reaching consequences to be a deliberate attempt to regulate not just the lives of individuals but also the context, thus, breaching an individual's universally accepted rights of freedom of expression and speech.

		12.       That it would be pertinent to mention that the cannons of Islam do not prohibit or limit any individual's right to freedom of expression and speech rather it cumulates the phrase "Your liberty ends where the nose of other person starts", meaning thereby that any right to freedom of expression and speech of one person would not prejudice the right of self respect and dignity of the other person.

		13.       The core issue involved in this matter is the publication and advertisement of blasphemous material which was viewed as a deliberate or reckless attempt to malign the very holy and sanctimonious stature of Prophet of Islam, Hazrat Muhammad (Peace Be Upon Him), on "Facebook".  This had deeply hurt and emotionally injured individual and collective sentiments of hundreds of millions of Muslims not just living in the geographical territory of Islamic Republic of Pakistan. Keeping in view this deeply sensitive e and emotional attachment the majority population of Islamic Republic of Pakistan experiences towards the Prophet of Islam, Hazrat Muhammad (Peace Be Upon Him), any regulations made for the protection of there deeply sensitive and emotional sentiments should not be viewed as in conflict with and individual's universally accepted rights of freedom, expressions and speech.

		14.       Keeping in view the protection of deeply sensitive and emotional values of the majority population of Pakistan, and for the purpose of keeping harmony and peace in the society this Court directs the Ministry of Foreign Affairs, Islamic Republic of Pakistan to direct its Permanent Ambassador to the United Nations at its Headquarter in New York to present a resolution in the General Assembly of United Nations, in context with the United Nations Resolution, "Combating Defamation of Religions" conveying the hurt and discomfort suffered by the majority population of Pakistan by the publication and promotion of such blasphemous material on "Facebook".

		15.       This Court directs the Ministry of Foreign Affairs of Government of Pakistan to comply with the above mentioned directions of this Court in letter and spirit by the next date of hearing and to submit a written and official copy of this direction given to the Permanent Ambassador of Islamic Republic of Pakistan to the United Nations regarding the presentation of a resolution to the United Nations General Assembly conveying  the hurt and discomfort suffered by the majority population of Islamic Republic of Pakistan by publication and promotion of such blasphemous material on "Facebook".

		16.       In case of non-compliance of these above mentioned directions of this Court by the Ministry of Foreign Affairs of Islamic Republic of Pakistan in relation to specific directions to the Permanent Ambassador of Islamic Republic of Pakistan to the United Nations to present a resolution in the General Assembly of United Nations, conveying the hurt and discomfort suffered by the majority population of Islamic Republic of Pakistan by publication and promotion of such blasphemous material on "Facebook" the Minister of Foreign Affairs of Islamic Republic of Pakistan has to appear in this Court in person to explain why he has not complied with the directions of this Court in exact letter and spirit.

		17.       The Office is directed to send a copy of this order to the Ministry of Foreign Affairs of Islamic Republic of Pakistan through fax, today.

		18.               To come up on 15.06.2010.

		                                                                                                         Sd/-

		                                         (Ijaz Ahmad Chaudhry)

		                                                       Judge 

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	-- 
	Dr. Hong Xue
	Professor of Law
	Director of Institute for the Internet Policy & Law (IIPL)
	Beijing Normal University
	http://www.cdnua.org/
	19 Xin Jie Kou Wai Street
	Beijing 100875 China

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***********************************************************
William J. Drake
Senior Associate
Centre for International Governance
Graduate Institute of International and
 Development Studies
Geneva, Switzerland
william.drake at graduateinstitute.ch
www.graduateinstitute.ch/cig/drake.html
www.linkedin.com/in/williamjdrake
***********************************************************

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