Constitution of Pakistan, 1973
The Constitution of the Islamic Republic of Pakistan, the supreme law of Pakistan, undertakes in “Article 3” to ensure the elimination of all forms of exploitation and the protection of law as the inalienable right of every citizen. “Article 11” of the Constitution prohibits all forms of slavery, forced labour, human trafficking, employment of children under 14 years of age and work of children in hazardous conditions. “Article 25” states that all citizens are entitled to equal protection under the law and empowers states to make special provisions for the protection of women and children. “Article 35” provides that the state shall protect the family and children. “Article 37(e)” provides that the state shall make provision for securing just and humane conditions of work, ensuring that children and women are not employed in vocations unsuited to their age or sex, and for maternity benefits for women in employment.
Pakistan Penal Code, 1860
The Pakistan Penal Code, 1860 (PPC) is the main criminal code of Pakistan. There are several provisions in the PPC that are relevant to OCSEA. “Sections 292A, 293 and 294” of the PPC deal with the sale, distribution and public exhibition of obscene books circulated in any manner, exposure to seduction of children, sale of obscene objects to young person, and obscene acts and songs. “Section 292B” and “Section 292c”, which previously defined child pornography and prescribed penalties for child pornography, were repealed by the Criminal Law Amendment Act 2023 and addressed in the PECA 2016.
“Section 292A” of the PPC deals with exposure to seduction. Whoever, by any means, seduces a child with intent to involve him in any sexual act or exposes him to any obscene and sexually explicit material, document, film, video or computer generated image or attempts to commit the aforesaid act, shall be punished with imprisonment for a term which shall not be less than one year and which may extend to seven years or with fine which shall not be less than one hundred thousand rupees and which may extend to five hundred thousand rupees or with both.
“Section 293” of PPC prohibits the sale, distribution, exhibition, or circulation of obscene objects to young person under the age of twenty and is punishable by imprisonment for a term not exceeding six months or by a fine, or by both.
Cruelty to a child is dealt with under “Section 328A” of the PPC. Cruelty is defined as willful assault on a child, ill-treatment, neglect or abandonment of a child or any act which results or is likely to result in physical or psychological injury to a child. Whoever commits the offence intentionally shall be punished with imprisonment for a term which shall not be less than one year and not more than three years or with fine which shall not be less than twenty-five thousand rupees and not more than fifty thousand rupees or with both.
“Section 377A” of the PPC deals with sexual abuse of children which states that whoever employs, uses, coerces, persuades, induces, entices or compels any person to grope, fondle, caress, engage in exhibitionistic acts, voyeurism or other obscene or sexually explicit acts or the simulation of such acts either independently or in conjunction with other acts, with or without consent, if the person is less than eighteen years of age, commits the offence of sexual abuse. Sexual abuse has been criminalised in “Section 377B” of the PPC 1860, which states that the person who commits the offence of sexual abuse shall be punishable with imprisonment for a term which shall not be less than fourteen years and may extend up to twenty years and with fine which shall not be less than one million rupees.
Prostitution is illegal in Pakistan and has been criminalised. “Section 371A” and “Section 371B” of the PPC criminalise the sale or purchase of a person for the purpose of prostitution, punishable by imprisonment for up to 25 years and a fine. “Section 366A” of the PPC criminalises the procuration of minor girls under the age of 18 for illicit sexual intercourse, punishable by imprisonment of up to 10 years and a fine.
The Prevention of Electronic Crimes Act (PECA), 2016
PECA 2016 contains specific procedural measures that apply to all cybercrime investigations, crimes committed using computer systems and all criminal investigations where digital evidence is required. The PECA 2016 also applies to cases related to the OCSEA. The law is enforced throughout Pakistan.
The Criminal Laws (Amendment) Act, 2023, passed in July 2023, made important changes to the PECA 2016 and enhanced the scope of the law, including tougher penalties, improved protection for children, streamlining investigation procedures by allowing police to take cognizance of offences under the PECA, the composition of a joint investigation team and providing protection to victim and witness. It also amended the Qanoon-e-Shahadat73 regarding the admissibility of witness statements taken by the court through modern devices or techniques, including video calls, viber, skype, WhatsApp, facebook, etc.
The amendments to the PECA 2016 contain important additions to the definitions. of harmful content, non-sexual child abuse and sexually explicit conduct. Firstly, the age of a “child” has been defined as a person under the age of eighteen. Secondly, the term “child sexual abuse content” is now defined to include depictions of a child engaged in real or simulated sexually explicit conduct or the depiction of a child’s body parts for primarily sexual purposes. Additionally, the definition of “sexually explicit conduct” has been broadened to include a range of real or simulated activities, including various forms of sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse and lascivious exhibition of certain body parts.
PECA 2016: OCSEA Offences and Penalties
“Section 20” of the PECA 2016 deals with offences against the dignity of a person in the context of information shared through information systems. If someone intentionally spreads false information about a person through any digital platform, knowing it can harm that person’s reputation or privacy, they can face punishment. The punishment could be imprisonment for up to three years, a fine of up to one million rupees, or both.
“Section 21” of the PECA 2016 relates to modesty of a minor and a natural person. It prescribes imprisonment up to seven years and fine up to five million rupees in case a person is involved in online child abuse.
“Section 22” of the PECA 2016 deals with child pornography and makes it a serious offence to intentionally produce, offer, distribute, or possess material that depicts minors engaged in sexually explicit conduct. Those found guilty may face imprisonment from fourteen to twenty years and a fine not less than one million rupees.
“Section 22A” of the PECA 2016 deals with online grooming, solicitation, and cyber enticement. This section addresses intentionally creating a relationship of trust with a minor through digital means with the intent to commit sexual abuse or share explicit content. The punishment includes imprisonment ranging from five to ten years and a fine from five hundred thousand to ten million rupees.
“Section 22B” of the PECA 2016 deals with commercial sexual exploitation of children which pertains to involvement in using digital means for the sexual exploitation of minors. The penalty is imprisonment for a minimum of fourteen years up to twenty years and a fine not less than one million rupees.
“Section 22C” of the PECA 2016 deals with the use of information system for kidnapping, abduction, or trafficking of minor. According to this section, anyone who contacts a minor with the intent to kidnap, abduct, or traffic for sexual abuse or exploitation faces imprisonment for a minimum of fourteen years up to twenty years and a fine not less than one million rupees.
“Section 24” of the PECA 2016 deals with cyberstalking which means anyone using digital platforms to harass, intimidate, or coerce someone. The penalty includes imprisonment for up to three years, a fine up to one million rupees, or both. For offences against minors, the punishment may extend to five years, a fine up to ten million rupees, or both.
“Section 24A” of the PECA 2016 deals with cyberbullying which means anyone harassing or threatening someone through electronic messages on social media platforms. The penalty includes imprisonment for up to five years, not less than one year, a fine of up to five hundred thousand rupees, and not less than one hundred thousand rupees.
“Section 25” of the PECA 2016 deals with issue of spamming which means anyone transmitting harmful or unsolicited information without permission. Offenders may face imprisonment for up to three months, a fine of up to five million rupees, or both. For direct marketing violations, fines range from not exceeding fifty thousand rupees for the first offence to not less than fifty thousand rupees and up to one million rupees for subsequent violations.
“Section 30” of the PECA 2016 outlines the authority and process for investigating offences under the Act. Besides the FIA, the Police are now also authorised to handle these offences. However, the Police must promptly refer the matter to the FIA for technical opinions and investigations as per its rules. Additionally, the Federal or Provincial Government can form joint investigation teams. The investigation must be completed within forty-five working days for cases triable by the court. Once the court takes cognizance of a case, it must proceed with a weekly trial and make a decision within three months.
“Section 30B” of the PECA 2016 provides protection to victims and witnesses involved in cases to ensure the safety and well-being of individuals participating in legal proceedings related to offences covered by the Act.
“Section 30C” of the PECA 2016 specifies that trials for offences against minors be conducted privately (in-camera), ensuring the proceedings are not open to the public and the court may adopt protective measures to shield victims and witnesses. Publishing or broadcasting proceedings are not allowed without the court’s permission.
“Section 30D” of the PECA 2016 is related to the investigation referred to the PTA related to child sexual abuse content. This section outlines that the FIA is responsible for obtaining information about child sexual abuse content referred for blocking and removal by the PTA and other relevant organisations.
“Section 34” of the PECA 2016 provides for general measures of international cooperation, including comprehensive provisions on spontaneous information, grounds for refusal, confidentiality and limitations on use, as well as authorisations to cooperate on specific investigative measures.
“Section 43” of the PECA 2016 specifies that offences under “Sections 10, 21, 22, 22A, 22B, and 22C”, along with abetment of these offences, are non-bailable, non-compoundable, and cognizable by the investigation agency. Non-bailable means that individuals charged with these offences are not eligible for bail by default. Non-compoundable implies that the complainant cannot withdraw the charges. Cognizable means that the investigation agency can make arrests without a warrant.
“Section 43A” of the PECA 2016 deals with complaint against cybercrimes against children where individuals can file complaints against specific cybercrimes targeting children under “Sections 10, 21, 21A, 21B, 21C, 21D, 21E, and 21F”, as well as abetment of these offences to the relevant authorities. This section establishes a specific procedure for reporting and seeking resolution for cybercrimes that victimise children.
“Section 45A” of the PECA 2016 section mandates the government to develop a support mechanism for victims in collaboration with other agencies and civil society organisations.
The PECA, 2016 also includes number of other sections that may be associated with OCSEA cases, including unauthorised access to information systems or data (“Section 3”), unauthorised copying or transmission of data (“Section 4”), electronic fraud (“Section 14”), making, supplying or obtaining devices for use in offences (“Section 15”), defamation (“Section 20”), special protection of women (“Section 21”), spamming (“Section 25”) and spoofing (“Section 26”), offences committed in relation to information systems (“Section 27”), expedite preservation and acquisition of data (“Section 31”), Retention of traffic data (“Section 32”), Powers of an authorised officer (“Section 35”), Dealing with seized data or information system (“Section 36”), unlawful on-line content (“Section 37”), real-time collection and recording of information (“Section 39”).
Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguard) Rules, 2021
The Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules 2021 (“Rules”) have been approved to implement “Section 37” and “Section 51” of the PECA, 2016. “Sections 37 and 51” of the PECA provide that the Pakistan Telecommunication Authority (PTA) may make rules for blocking and regulating online content on social media forums. The section also provides that such content shall be blocked and removed if PTA is of the opinion that it is against the honour and interests of Islam, the defence, security and integrity of Pakistan, public order, decency or morality, or is in connection with contempt of court or the commission or incitement of an offence relating to data protection or cybercrime.
Social media or social networking services are defined in the Rules as a website, application or mobile web application, platform or communication channel and any other such application and service that permits a person to become a registered user, create an account or create a public profile for the primary purpose of, allowing the user to post and share user-generated content through such account or profile, or to enable one or more users to generate content that can be viewed, posted and shared by other users of such platform, but does not include the licensees of PTA unless they specifically provide social media or social networking services. A social media company could face a penalty of up to 500 million rupees if it fails to comply with the direction of the Pakistan Telecommunication Authority (PTA) for blocking online content.
“Section 3” of the Rules is important because it describes the cases where removal of online content is permitted under “Section 37” of the PECA 2016, which may lead to the blocking and removal of online content that offends decency and morality where the online content constitutes an act that is an offence under “Sections 292, 293, 294 and 509” of the Pakistan Penal Code. (“Section 292” and Section “294” deal with selling obscene books and articles, as well as performing obscene songs and acts in public. “Section 509” deals with insulting a woman’s modesty or sexual harassment.) Service providers, social media companies, and major social media companies are required to place mechanisms for immediate blocking of live streaming of online content through Pakistan’s online information system, particularly if they receive a notice from PTA of content relating to terrorism, hate speech, pornography, incitement to violence, and endangering national security.
Service Providers Liability A very important issue is the obligation and liability of service providers. Pakistan’s PECA 2016 does not impose any obligation on service providers, including ISPs, to monitor, block and remove CSAM and is not required to report CSAM to the relevant authorities. However, under “Rule 7(5)” of the Removal Blocking of Unlawful Online Content Rules 2021, service provider shall deploy mechanisms to ensure the immediate blocking of online streaming, including pornographic content, and under “Section Rule 7(4)”, service provider shall provide information with the designated investigative agency. However, this rule appears to contravene “Section 38(5)” of PECA 2016, which deals with the limitation of liability of service providers. It states that no service provider shall be under any obligation to proactively monitor make inquiries about material or content hosted, cached, routed, relayed, conduit, transmitted or made available by any such intermediary or service provider.
Given the significant intersection between the online and offline worlds, it’s important to recognise that various laws may apply to protect victims and hold perpetrators accountable in some cases of OCSEA, including:
The Anti-rape (Investigation and Trial) Act, 2021
The Anti-rape (Investigation and Trial) Act, 2021 was enacted to ensure expeditious redressal of rape and sexual abuse crimes concerning women and children. It establishes special investigation teams and special courts to facilitate efficient procedures, speedy trials, evidence collection, and related matters, emphasizing the need for swift justice in such cases.
Prevention of Trafficking in Persons Act, 2018
The Prevention of Trafficking in Persons Act, (PTPA) 2018 aims to prevent trafficking in persons especially women and children. “Section 3(1)” of the PTPA 2018 specifies that any individual who engages in activities such as recruiting, harbouring, transporting, providing, or obtaining another person for compelled labour or commercial sex acts through the use of force, fraud, or coercion commits this offence. The prescribed punishment for such offences includes imprisonment for a period of up to seven years, a fine of up to one million rupees, or both. Moreover, if the offence of trafficking in persons is perpetrated against a child or a woman, the severity of the penalties increases. In such cases, the perpetrator is subject to imprisonment for a term not exceeding ten years, with a minimum sentence of two years, a fine of up to one million rupees, or both.
Islamabad Capital Territory and Provincial Laws
Islamabad Capital Territory Child Protection Act, 2018
The ICT Child Protection Act, 2018 provides for the protection and care of children in the Islamabad Capital Territory from all forms of physical or mental violence, neglect, maltreatment, exploitation and abuse through the establishment of Child Protection Advisory Board and Child Protection Institutes.Advisory Board.Key functions of the Child Protection Advisory Board include advising the government on policy and legislation, ensuring coordination of implementation of child protection and care mechanisms, and maintaining a management information system for child protection. Child Protection Institutions under the Act has the mandate to receive reports of children in need, maintain case management records, and collect data on child abusers and offenders against children. The Act defines sexual abuse and exploitation as causing or coercing a child to engage in unlawful sexual activity, including the use of children in audio or visual images for child pornography, child protection, trafficking within and between countries for sexual exploitation and sale of children for sexual purposes.
Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010
The Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 provides for the care, protection, maintenance, welfare, training, education, rehabilitation, and reintegration of children at risk in Khyber Pakhtunkhwa. for Section 2e(Vi) defines child pornography, including online child pornography as “taking, permits to be taken, with or without the consent of the child, any photograph, film, video, picture or representation, portrait, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of obscene or sexually explicit conduct.”
“Section 35” deals with frauding or deceiting a child by words, spoken or written, or by signs or otherwise, incites, attempts to incite, deceits or allows a child to engage in any activity which is harmful to the physical, mental, emotional, economic and social well-being of a child, shall be punished with imprisonment for a term which may extend to three years or with fine which may extend to one hundred thousand rupees or with both. “Sections 36” and “Sections 37” deal with violence against a child that causes or intends to cause harm, pain, suffering or humiliation to a child. “Section 40” of the Act defines the offences, while “Section 48” sets out the punishment for child pornography, which is up to seven years imprisonment with a minimum sentence of three years and a fine. “Section 50” deals with the offence of exposing a child to seduction with intent to engage him in a sexual act or exposing him or attempting to expose him to obscene and sexually explicit material, document, film, video or computer-generated performance and is punishable with imprisonment for a term which may extend to seven years or with fine which may extend to ten thousand rupees or with both. Sexual abuse of children is dealt with in “Section 53” and can be punished with up to 14 years.
KP Child Protection and Welfare Act, 2010 “Section (f)” – Child Pornography
“child pornography” means taking, permits to be taken, with or without the consent of the child, any photograph, film, video, picture or representation, portrait, or computer generated image or picture, whether made or produced by electronic, mechanical, or other means, of obscene or sexually explicit conduct, where-
(i) the production of such visual depiction involves the use of a minor engaging in obscene or sexually explicit conduct; or
(ii) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaged in obscene or sexually explicit conduct; or
(iii) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in obscene or sexually explicit conduct, preparation, possession or distribution of any data stored on a computer disk or any other modern gadget.
Balochistan Child Protection Act, 2016
The Balochistan Child Protection Act, 2016 provides for the protection of vulnerable children from all forms of abuse, including sexual abuse, through the establishment of a Child Protection Commission and Child Protection Units in the districts responsible for the management of child protection cases. “Section 2(1)(w)” of the Act defines “sexual abuse and sexual exploitation” as:- (i) the inducement or coercion of a child to engage in any unlawful or psychologically harmful sexual activity; (ii) the use of children in commercial sexual exploitation; (iii) the use of children in audio or visual images of child sexual abuse; and (iv) child prostitution, sexual slavery, sexual exploitation in travel and tourism, trafficking (within and between countries) and sale of children for sexual purposes and forced marriage. Additionally, “Section 2(1) (t)” provides a detailed definition of mental violence against children. Subsection (vii) of the same section covers any psychological harassment of children by adults transmitted or carried out through the use of information technology, internet or cyber devices such as mobile phones. By extending the concept of harassment to include new technologies and use of children in audio or visual images of child sexual abuse, the government of Balochistan has acknowledged the existence of online child abuse and the long-term consequences in lives of children and allowed protective measures to be taken for child victims of such abuse as adequate and on the basis of their best interest.
Sindh Child Protection Authority Act, 2011
The Sindh Child Protection Authority Act, 2011 provides for the establishment of an Authority known as the Sindh Child Protection Authority for children in need of special protection measures. It is to monitor and coordinate child protection related issues at provincial and district levels and assist the Department of Social Welfare, Government of Sindh in establishing a case management and referral system to protect children from all forms of abuse, violence and exploitation. The Authority has established Child Protection Units and appointed Child Protection Officers to realise the objectives of this Act. A child in need of special measures is a child who (i) is a victim of violence, abuse and exploitation, (ii) is subjected to physical and psychological violence, sexual abuse or commercial sexual exploitation, (iii) is forced into the worst forms of child labour, exploitative labour, or beggary, etc. Hence children who are victim of online abuse may benefit from protection services under this law.
Sindh Children Act, 1955
The Sindh Children Act, 1955, provides in “Section 56” that inducing and promoting seduction (including inducing immoral behaviour) or prostitution of girls below the age of 18 years shall be punishable with two years. “Section 57” deals with seduction or outrage of modesty. A person who engages in immoral conduct and seduces a girl under 18 years of age is liable to imprisonment for a term not exceeding two years and/or to a fine.
Punjab Destitute and Neglected Children Act, 2004
The Punjab Destitute and Neglected Children Act 2004 (PDNCA, 2004) provides for the rescue, protective custody, care, and rehabilitation of destitute and neglected children in the province of Punjab. “Section 3(k)” defines a destitute and neglected child, and “Section 3(k)(v)” includes a child who is or may be abused or exploited for immoral or illegal purposes or unconscionable gain. To protect destitute and neglected children, the Act provides for the establishment of a Child Protection and Welfare Bureau, Child Protection Units, Child Protection Institutions and Child Protection Courts.
Punjab Protection of Women Against Violence Act, 2016
Similar to PDNCA 2004, this Act provides for the establishment of an effective system for the protection, relief and rehabilitation of women from violence in Punjab province, applicable to girls and women. “Section 2 (1r)” defines violence as “any offence committed against the human body of the aggrieved person, including abetment of an offence, domestic violence, sexual violence, psychological abuse, economic abuse, stalking or cybercrime”. Implementation measures include a universal free helpline for aggrieved persons, the establishment of women’s protection centres and shelters and a district committee for the protection of women, etc. Although the word cybercrime appears in the definition, it does not define exactly what cybercrime means, leaving the interpretation to law enforcement agencies.
Laws against domestic violence
The provincial governments of Sindh (2013), Balochistan (2014) and KP (2021) have also enacted laws against domestic violence to institutionalise measures to prevent and protect women, children and other vulnerable persons from domestic violence. While these laws refer to sexual abuse and emotional and verbal abuse, they do not directly address or provide any protection against online sexual exploitation and abuse.
Due to the rapid development of information and communication technology, offenders today have more avenues and sophisticated tools to identify, target, groom and exploit children. Pakistan has done well in 2023 by amending the PECA 2016. The law now includes offences against OCSEA more comprehensively, but implementation and enforcement needs to be strengthened.
Although the Pakistani government has imposed a ban and blocked websites containing pornographic material, the content is easily accessible on new websites or through virtual private networks. Also, there is no legal provision that exempts a child from any criminal responsibility for sharing CSAM, especially if forced to do so in an abusive situation. Consequently, children could be prevented from and/or or discouraged from reporting for fear of prosecution. Perpetrators could also theoretically exploit this loophole to blackmail children and take advantage of them for their own benefit.
The Punjab Protection of Women Against Violence Act, 2016, is neither childcentred nor child-sensitive. It is recommended to rely on child protection laws that cater to children only. Furthermore, the protections currently provided in provincial and federal child protection laws are too often based on the institutionalisation of victims, which is not in the best interests of the child. There is a need to strengthen efforts to reform alternative care in each province in line with international standards. Additionally, there is an urgent need to notify the outstanding child protection policies in all provinces of the country to guide and structure the state’s response to OCSEA.