Privacy, under the Constitution of Pakistan, is an inalienable and fundamental right. Pakistan is developing a specific law on protection of personal data of individuals. The Ministry of Information Technology and Telecommunication (the “Ministry”) has developed a draft Personal Data Protection Bill, 2021 (the “draft Bill”). The draft Bill has passed the consultation stage and, after procedural formalities, will be tabled before the legislature for passing into law.
The draft Bill largely follows the General Data Protection Regulation (GDPR) of the European Union.
Sectoral specific laws and regulations exist to safeguard personal information. The Banking Companies Ordinance, 1962 (the “Banking Ordinance”) governs the banking sector in Pakistan. The Banking Ordinance provides for the secrecy of information of the customers of the banks. The State Bank of Pakistan (SBP), being the central bank of Pakistan, monitors and implements the secrecy obligations of the banks under the Banking Ordinance.
The Payment Systems and Electronic Fund Transfers Act, 2007 (the “Electronic Funds Transfer Act”) regulates electronic fund transfers and protection of the consumer, including the consumer’s secrecy and privacy. The SBP has issued regulations in this regard.
The Credit Bureaus Act, 2015, and the regulations made thereunder, govern the unauthorised access or disclosure of credit information.
The Pakistan Telecommunication Authority (PTA) under the PTA (Re-organization) Act, 1996 is empowered to make regulations concerning the telecoms sector, including protection of telecoms consumers. The PTA has issued various regulations, including those related to consumer protection, which ensure the privacy of telecoms consumers.
The Prevention of Electronic Crimes Act, 2016 (PECA) governs unauthorised acts with respect to information systems and provides for related offences. The PECA recognises unauthorised disclosure of personal information (by relevant service providers) of any person as an offence.
The Right of Access to Information Act, 2017 governs the general public’s right to have access to information. Under the Act, any person may make an application for access to information held by a public body. However, any information which would involve invasion of privacy of an identifiable individual is exempt from disclosure under the Right of Access to Information Act.
The Pakistan Information Commission (under the Right of Access to Information Act), while deciding an appeal (No 1080-5-2021 dated 15 September 2021 related to provision of certain information about a housing scheme), has directed the respondent in the appeal to provide the appellant all the requested information after removing the information touching upon the privacy of other members – ie, their addresses, phone numbers, identity cards and bank account numbers or the detail of their family members.
The Ministry of Commerce has formed the e-Commerce Policy of Pakistan (2019), wherein data protection is determined to be one of the several policy initiatives.
The above-referred laws and related rules/regulations provide for offences, enforcement and penalties related to data protection and privacy.
The draft Bill provides for the establishment of a Commission, namely the National Commission for Personal Data Protection of Pakistan. The Commission shall be responsible for protecting the interest of individuals, to enforce protection of personal data, prevent any misuse of personal data, promote awareness of data protection and to address complaints. For the purposes of complaints, the Commission shall be deemed to be a civil court, having the same powers as are vested in a civil court under the Code of Civil Procedure, 1908.
The Commission is empowered to call for information from the data controller or from the data processor, as may be reasonably required for effective discharge of its functions. The Commission, under the draft Bill, is empowered to formulate a compliance framework regarding data audits.
As far as banking is concerned, the SBP is regulator and has the powers to call for any information related to the business of banks. The SBP has issued regulations and guidance that are to be followed by the banks; non-compliance entails penal action by the SBP.
The PTA is the regulator for the telecoms sector. It monitors and enforces the rules and regulations; non-compliance entails imposition of penalties under the PTA (Re-organization) Act, 1996.
The Federal Investigation Agency (the FIA) is the investigating agency under the PECA. The FIA and its authorised officers are empowered to investigate an offence under the PECA in accordance with the Code of Criminal Procedure, 1908.
The Commission, under the draft Bill, has the function to receive and decide complaints with regard to infringement of personal data, including violation of any provision of the draft Bill. The Commission is deemed to be a civil court for the purposes of deciding a complaint and shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908.
An individual or a relevant person may present a complaint to the Commission against a data controller or a data processer in the following matters:
The complaint may be filed on plain paper (or on a simplified format prescribed by the Commission). The Commission will prescribe a fee for filing and processing the complaint, and shall facilitate online receipt of complaints.
The Commission is to dispose of the complaint within 30 days of its receipt, or with reasons to be recorded in writing within such extended time as reasonably determined by the Commission.
The Commission is to afford reasonable time and opportunity to be heard to the data controller or data processer against whom a complaint is made. The Commission may also contact the complainant to seek any further information or their comments on the response of the data controller or data processer or any other concerned agency. The Commission may issue directions to stop breach of rights of a data subject without first seeking comments from the data controller or data processor.
In case of failure by the data controller or data processer to respond to the Commission or to execute its orders, the Commission may initiate enforcement proceedings.
Appeal against an order passed by any officer of the Commission lies before the Commission within 30 days of the receipt of the order. The Commission is to decide the appeal within 30 days.
Appeal against the order passed by the Commission lies before the High Court or to any tribunal established by the federal government in the manner prescribed by the High Court. The High Court or the tribunal is to decide the appeal within 90 days.
The draft Bill largely follows the basic principles of the GDPR. Key concepts such as “data subject”, “data controller” and “data processer” have essentially similar meanings as in the GDPR. Further, the rights of the data subjects follow the same scheme. Obligations of the data controller and data processers are also mostly the same as in the GDPR.
In regard to transfer of personal data outside Pakistan, there can be seen some differences as compared to the GDPR. The draft Bill only provides for cross-border transfer of personal data on account of:
Further, critical personal data is not allowed to be transferred outside Pakistan. The GDPR, on the other hand, allows cross-border transfer of personal data on the basis of:
The Commission, under the draft Bill, is required to devise a mechanism for keeping some components of sensitive personal data within Pakistan (ie, data localisation).
Another significant difference to GDPR, is the highest quantum of fine, which is 1% of the annual gross revenue in Pakistan or PKR30 million, whichever is higher. The GDPR has a maximum fine of 4% of worldwide turnover or EUR20 million, whichever is higher.
The draft Bill is a federal law applicable all over Pakistan; there are no provincial laws on this matter.
Bolo Bhi is a civil society organisation geared towards advocacy, policy and research in the areas of digital rights and civic responsibility. Bolo Bhi creates awareness of the issues related to privacy, digital safety and data protection. Bolo Bhi conducts workshops and conferences concerning privacy and data protection.
The Digital Rights Foundation is a research-oriented, not-for-profit organisation focusing on information and communication technology to support human rights, democratic processes and digital governance. The Digital Rights Foundation seeks to increase awareness of privacy issues and defend the right to privacy by research.
Both the above organisations have submitted their comments on the draft Bill to the Ministry.
The draft Bill would override other laws. However, in case any other law provides for more stringent provisions regarding the subject matter then the more stringent provisions will prevail.
The draft Bill does not follow a sectoral approach and is equally applicable to all commercial, non-commercial, economic and industrial sectors.
The draft Bill has a “right-based” approach whereby extensive rights are conferred on the data subjects and, conversely, obligations are imposed on the data controllers and data processers. In essence, the draft Bill aims to protect the privacy rights of individuals.
In April 2021, a Constitutional Petition was filed before the Sindh High Court (High Court in the province of Sindh) seeking issuance of a direction to the federal government to promulgate necessary laws for the protection of the mobile phone data of citizens. The Ministry submitted before the Court that the draft bill of personal data protection was ready and under a consultation process. The petitioner had approached the Court on the grounds of media reports highlighting that personal data of mobile phone users had been breached. The petition has not been finally decided yet, but the petition is likely to further expedite the law-making process on the subject.
In July 2021, the government of Pakistan framed its National Cyber Security Policy 2021. A Cyber Governance Policy Committee (CGPC) has been constituted for strategic oversight over national cybersecurity issues. One of the functions of the CGPC is to formulate the Cyber Security Act.
In October 2021 the PTA issued Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules, 2021. These rules provide powers to the PTA for removal of online content, filing of complaints and implementing oversight mechanisms in relation to online content. The PTA may remove or block online content if this is in the interest of:
It is expected that the draft Bill will be promulgated as a law. The Ministry may also commence the development of Cyber Security Act as per the National Cyber Security Policy 2021.
The draft Bill is applicable to:
The draft Bill does not contain any specific provision with regard to appointment of a data protection officer. However, the draft Bill empowers the Commission to formulate a compliance framework regarding the responsibilities of a data protection officer. Once the Commission is established, it is likely that it will devise a mechanism for the appointment and responsibilities of the data protection officer.
General principles or criteria necessary to authorise to collect, use and process personal data are:
The following are exceptions to the requirement of consent by the data subject:
The data controller is required to give a written notice to the data subject informing them of the following:
This written notice is to be given as soon as reasonably possible, namely:
The draft Bill does not contain the concepts of “privacy by design” or “privacy by default”. The Commission, based upon national interest, is to prescribe best international standards to protect personal data from any loss, misuse, modification, unauthorised or accidental access or disclosure, alteration or destruction. The data controller and data processer are to follow the standards so prescribed by the Commission. The standards to be prescribed by the Commission may account for the concept of “privacy by design” or “privacy by default”.
The draft Bill requires that the data controller is to take adequate steps to ensure that personal data is accurate, complete, not misleading and is kept up to date with regard to the purpose for which it is collected and further processed.
The data controller is to keep and maintain record of each application, notice, request or any other information relating to personal data that has been or is being processed by the data controller. The Commission is to determine the manner and form in which such record is to be maintained.
The draft Bill does not contain any specific provision with regard to conducting privacy, fairness or legitimate impact analysis. Likewise, there is no specified requirement regarding adoption of internal or external privacy policies. The draft Bill empowers the Commission to formulate a compliance framework regarding data protection impact assessment and privacy. Once the Commission is established, it is likely it will devise mechanisms for data protection impact assessment and adoption of privacy policies.
The draft Bill confers the following rights to the data subjects:
“Anonymised” or “pseudonymised” data which is incapable of identifying an individual is not personal data, as per the definition given in the draft Bill. Accordingly, the draft Bill would not be applicable to anonymised or pseudonymised data.
The draft Bill provides that a data subject has the right not to be subjected to a decision solely based on automated processing, including profiling. As a consequence, it follows that profiling, online monitoring or tracking based upon big data analysis, artificial intelligence or by use of algorithms are not permitted.
The draft Bill provides for imposition of monetary penalties. However, there is no concept of compensation to an aggrieved person arising out of the breach of personal data.
Sensitive personal data, under the draft Bill, means data relating to access control, financial information (bank account, credit/debit card) computerised national identity card, passport, biometric data, physical, behavioural, psychological and mental health conditions, medical records, ethnicity, religious beliefs, political affiliation, physical identifiable location, travelling details, pictorial or graphical still and motion forms, IP address and online identifier.
Sensitive personal data may only be processed under the following situations:
Physical identifiable location, IP address and online identifier are included within the definition of “sensitive personal data”. Therefore, browsing data, viewing data, cookies, beacons and location data (pertaining to IP address and physical identifiable location) are subject to the same rules, as “sensitive personal data”.
Communications data, voice telephony and text messaging, content of electronic communications, children’s or students' data and employment data are not covered under the definition of “sensitive personal data” and, therefore, general principles (or criteria) – as explained at 2.1 Omnibus Laws and General Requirements – are applicable to this class of data.
The draft Bill does not contain any provision with respect to behavioural and targeted advertising.
The conduct of social media or social network service is governed under the Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules, 2021, as discussed at 1.7 Key Developments.
The financial sector (banks, etc) is governed by the SBP. The following regulations are required for security of customers’ information:
The Credit Bureaus Act regulates the obligations of credit bureaus as to fidelity, confidentiality and secrecy.
The Electronic Funds Transfer Act also requires that a financial institution shall not divulge any information relating to an electronic fund transfer or the account of its customers, except as required by law.
PTA has issued various regulations encompassing consumer protection, including in regard to consumers’ personal information. The following regulations are relevant:
The following are recognised as offences under the PECA:
Protection from Spam, Unsolicited, Fraudulent and Obnoxious Communication Regulations, 2009 requires all operators (holding a licence from the PTA) to establish a standard operating procedure (duly approved by the PTA) to control spamming.
Similarly, all operators are required to develop a standard operating procedure for controlling unsolicited calls. The operators are also required to establish a consolidated “Do Not Call Register” in connection with controlling unsolicited calls. The operators are further required to ensure registration of telemarketers.
The draft Bill does not contain any provision with respect to behavioural and targeted advertising.
Pakistan has no specific law concerning workplace privacy. The draft Bill provides that sensitive personal data may be processed by a data controller for the purposes of exercising or performing any right or obligation which is conferred or imposed by law on the data controller in connection with employment.
The Public Interest Disclosures Act, 2017 governs the mechanism for public interest disclosures and protection of persons making such disclosures (related to the prevention of corruption in public sector organisations). Anonymous or pseudonymous disclosures are not entertained under this Act. The identity of the complainant is to be protected unless required otherwise. The Act provides protection to the complainant against any victimisation on the ground that they made a disclosure. A complainant is considered victimised if they are:
This Act also provides for due protection of the complainant, witness or any other person rendering assistance for an inquiry.
The Securities and Exchange Commission of Pakistan (SECP) has issued Listed Companies (Code of Corporate Governance) Regulations, 2019 (the “Code”). The Code requires that listed companies’ board of directors maintain a whistle-blowing policy, by establishing a mechanism to receive and handle complaints in a fair and transparent manner while providing protection to the complainant against victimisation. The Code requires that the chief executive officer of a listed company place “reports on/synopsis of issues and information pursued under the whistle-blowing policy, clearly disclosing how such matters were dealt with and finally resolved or cancelled”, before the board of directors or before the committee of the board of directors.
Matters pertaining to the role of labour organisations, e-discovery issues, use of digital loss prevention technologies and scanning/blocking websites at a workplace are not dealt under the draft Bill or under any other law.
The Commission, under the draft Bill, is empowered to formulate a compliance framework regarding a grievance redressal mechanism. The Commission would have powers of search and seizure while dealing with complaints. The detailed procedural aspects will be devised upon establishment of the Commission. However, considering the established legal norms in Pakistan, the detailed procedure is likely to ensure the following core principles:
The draft Bill provides for the following financial penalties:
In view of the fact that there is no law on the protection of personal data, there are no enforcement cases to be mentioned here.
A private litigation, for alleged privacy or data protection violations, would be subjected to basic legal norms as mentioned above (ie, opportunity of being heard, fair trial and due process).
Class actions are only allowed under certain specific laws – for instance, by creditors in case of a winding-up petition under the Companies Act, 2017. Trade and consumer associations may also bring class actions in the matters of competition, consumer protection and anti-dumping investigations.
The Investigation for Fair Trial Act, 2013 (the “Fair Trial Act”) provides for the matters related to surveillance and interception in relation to investigation of offences specified in the Schedule I to the Fair Trial Act. The offences pertain to the following laws:
The official of the applicant (the department seeking permission for surveillance or interception) is first to seek permission of the federal Minister of the Interior through its head of department.
After receiving permission from the Minister of the Interior, the authorised officer of the applicant department makes an application to the judge of the High Court for issuance of a warrant for surveillance or interception. Only if the judge passes order for the issuance of a warrant may the applicant proceed to surveillance or interception.
In regard to protection of privacy, the Fair Trial Act has the following provisions:
Any person carrying out surveillance or interception, except in accordance with the Fair Trial Act, is to be punished with imprisonment up to three years (in addition to any other punishment under any other law).
Laws and standards for access to data for intelligence, anti-terrorism or other national security purposes are as discussed at 3.1 Laws and Standards for Access to Data for Serious Crimes.
The draft Bill does not recognise a foreign government access request as a legitimate basis to transfer personal data outside Pakistan.
Pakistan does not participate in a Clarifying Lawful Overseas Use of Data (CLOUD) Act agreement with the USA.
The draft Bill is facing criticism in relation to the following matters:
Transfer of personal data outside Pakistan, under the draft Bill, is only permissible in the following cases:
It should be noted that critical personal data is not allowed to be transferred outside Pakistan.
The Commission, under the draft Bill, is required to devise a mechanism for keeping some components of sensitive personal data within Pakistan (ie, data localisation).
With respect to international data transfer, the draft Bill only provides the mechanism as discussed in 4.1 Restrictions on International Data Issues.
Under the draft Bill, one of the permissible modes of cross-border transfer of personal data is a “mechanism to be devised by the Commission”. On establishment of the Commission, the said mechanism may contain any approval requirements for all or any class of personal data.
The draft Bill provides that the Commission is to devise a mechanism for keeping some components of sensitive personal data in Pakistan. Conversely, critical personal data is only to be processed in a server or data centre located in Pakistan. The projected data localisation mechanism will be known once framed by the Commission after its establishment; as a corollary, it follows that sensitive personal data may be transferred outside Pakistan with the requirement to keep some component in Pakistan.
There are no statutory requirements to share any software code, algorithms or similar technical details with the government.
The only limitations and considerations regarding international transfer of personal data are those discussed at 4.1 Restrictions on International Data Issues. The draft Bill does not contain any provision in relation to foreign government data requests, foreign litigation proceedings or internal investigations.
There are no blocking statutes, related to data privacy or otherwise.
The government's Digital Pakistan Policy sets the goals and directions for IoT, fintech, artificial intelligence and robotics, cloud computing and big data. However, there is no law or regulation at present.
The SECP has issued draft Cloud Adoption Guidelines for Incorporated Companies/Business Entities (BEs). The draft Guidelines treat “personally identifiable information” (PII) as sensitive official data. As per the draft Guidelines, the PII is any data that could potentially be used to identify a particular person. The draft Guidelines require that, in case of PII, only the most secure cloud service providers should be relied upon; the Guidelines further require that BEs need to encrypt PII and ensure that the key and encrypted PII is not stored on same cloud.
The draft Bill provides a data subject right not to be subject to a decision based solely on automated processing, including profiling.
Biometric data and physical identifiable location (ie, geolocation) are included within the definition of “sensitive personal data”, and hence provisions of the draft Bill are applicable on biometric and physical identifiable location, as explained at 2.2 Sectoral and Special Issues.
Matters related to disinformation, deepfakes, online harms, dark pattern or online manipulation are dealt with under the Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules, 2021, as discussed at 1.7 Key Developments.
The Civil Unmanned Aircraft System Act, 2021 has been tabled before the National Assembly of Pakistan, but has not yet been passed. This Act intends to establish the Civil Unmanned Aircraft System Authority. Once established, this Authority will be responsible for the regulation and control of civil unmanned aircraft system (ie, drones).
Currently, there is no practice concerning digital governance or fair data practice. Once the draft Bill becomes law, such practices may emerge as the precise legalities of this subject matter evolve.
Currently, there is no law in Pakistan regarding protection of personal data, so there are no issues regarding enforceability, penalties or related litigation.
There is no uniform or statutory process concerning due diligence in corporate transactions. The entities perform due diligence based upon their individual risk appetite and underlying circumstances, with regard to the nature and complexity of a particular transaction.
Currently, there is no requirement for making public disclosure regarding an organisation’s cybersecurity risk profile or experience.
Pakistan has launched the Public Key Infrastructure (PKI) for the National Root Certification Authority. PKI governs the issuance of digital certificates to protect data, provide unique digital identities for users, devices and applications and secure end-to-end communications. The PKI will tend to establish trust and security in electronic transactions which will augment e-commerce in the country.
In July 2021, the government of Pakistan framed its National Cyber Security Policy. To achieve the objectives of this Policy, an implementation framework shall be developed by a designated organisation of the federal government.
The implementation framework will set out the government’s vision to manage and implement cybersecurity practices at a national level. The framework will consist of the following areas:
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