“If all of mankind, minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person”

–John Stuart Mill

The Constitution of Pakistan guarantees the fundamental rights to freedom of speech and expression under Article 19, while also allowing for “reasonable restrictions” by law. However, these rights are now being threatened by recent amendments to the Prevention of Electronic Crimes Act (PECA), 2016 through the Prevention of Electronic Crimes (Amendment) Act, 2025. The amendments introduce several changes that potentially infringe upon the freedom of expression, speech, the right to a fair trial, and privacy. The Honourable Supreme Court of Pakistan has previously clarified the meaning of “reasonable restrictions” in the Pakistan Broadcasters Association v. Pakistan Electronic Media Regulatory Authority case, stating that such restrictions should be just, fair, and well-considered. However, the recent amendments introduce restrictions that seem both overly broad and vague.

In total, the Amendment Act 2025 introduces thirty-six (36) amendments across fourteen (14) sections of PECA 2016. Among these amendments, one of the most controversial and widely discussed aspects is the criminalisation of information under the vague and undefined terms “false” and “fake”. This raises significant concerns about the potential for stifling free speech and expression, which is guaranteed under Articles 19 and 19-A of the Constitution. The lack of clear definitions for terms like “fake” and “false” makes the amendment both vague and overbroad. According to Section 26A of the amended law, any information that a person “knows or has reason to believe to be false or fake and likely to cause or create a sense of fear, panic, disorder, or unrest” is subject to punishment. If found guilty, a person could face up to three years in prison, a fine of up to Rs 2 million, or both. The penalty for spreading or transmitting false or fake information is severe—up to three years of imprisonment—yet the term “fake” remains ambiguous and lacks a precise legal definition. The lack of clarity in the definition of “fake” is inherently vague, as it is a broad and subjective term that may be interpreted differently by various authorities or individuals, leading to arbitrary enforcement. Even Black’s Law Dictionary defines “fake” as “something that is not what it purports to be; to make or construct falsely.” Without a clear definition, the provision is unconstitutional due to vagueness. Legal principles dictate that a law is unconstitutionally vague if ordinary people cannot understand its meaning, creating uncertainty in its application.

Moreover, the offence under the newly inserted Section 26A has been made cognisable, non-bailable, and non-compoundable. The fundamental legal maxim Nullum crimen sine lege (no crime without law) emphasises that criminal laws must be clear and precise to ensure fairness. In this case, the Amendment Act is ex facie discriminatory as it is based on vague terminology, making it susceptible to arbitrary enforcement and discriminatory in practice. The object and effect test illustrates the interdependence of fundamental rights. While the object of a law may be to protect a particular fundamental right, its effect may lead to the infringement of another. The effect of laws on fundamental rights cannot be ignored. In the case of the current series of amendments to a special enactment, the goal is to combat the publication of fake and false material, thereby safeguarding the right to privacy and dignity. However, these amendments simultaneously violate other fundamental rights, including the right to life, free speech, access to information, and due process of law. Additionally, the vague and overly broad nature of these amendments fails to adequately protect any fundamental rights. Instead, they are being misused by the authorities, further exacerbating the problem. Under the new amendment, an aggrieved party may appeal to the Honourable Supreme Court if dissatisfied with the decision of the tribunal. However, the absence of an appellate mechanism in a higher forum leaves individuals in a state of helplessness, rendering the provision a violation of due process. This situation is a clear example of a blatant disregard for the principles of natural justice, where an individual is denied an opportunity to defend themselves. As the saying goes, “Rome has spoken; and the cause is lost.”

The entire amendment is overly broad, vague, and lacks controlling guidelines. It does not even provide an opportunity for the party propagating any information to defend its accuracy, and the government has essentially become a judge in its own cause—another violation of natural justice principles. The object and purpose behind these amendments seem to involve concealing the truth, manipulating information, and placing an undue burden on the public and public treasury by establishing a new authority to be known as the “Social Media Protection and Regulatory Authority”. The vagueness and overbreadth of the provisions further highlight the failure to protect the fundamental principle of safeguarding an individual’s freedom of speech and expression. Naturally, academic institutions, the media, and the judiciary may themselves be susceptible to corruption, bias, or error. However, subordinating them to a governmental “Ministry of Truth” is likely to make matters worse. In a democratic system, multiple sources contribute to the determination of truth, including the media, independent institutions, and public discourse. In contrast, in a totalitarian regime, the government acts as the sole authority on defining and controlling the narrative of truth. The government is already the most powerful institution in developed societies, and it often has the greatest interest in distorting or concealing inconvenient facts. Allowing the government to supervise or oversee the search for truth by introducing such amendments is akin to appointing the fox to guard the chicken coop.

Shahrukh Mehboob
The writer is a lawyer and can be reached at shahrukhmehboob4@gmail.com