In an era where the digital landscape is a fundamental part of our daily lives, the need for legislation that ensures online safety has become more essential than ever before. Accordingly, Sri Lanka has proposed its new Online Safety Bill, and it was recently published in the Gazette of 15 September (issued on 18 September) by order of Minister of Public Security Tiran Alles.
A brief overview
The Bill intends “to establish an Online Safety Commission (OSC); to make provisions to prohibit the online-based communication of certain statements of fact in Sri Lanka; to prevent the use of online accounts and inauthentic online accounts for prohibited purposes; to make provisions to identify and declare online locations used for prohibited purposes in Sri Lanka; and to suppress the financing and other support of the communication of false statements of fact”.
However, though these purposes appear to be very human rights-friendly and aim to create a safer and more accountable online environment for everyone, this new Bill, as with any other significant piece of legislation, is not without serious shortcomings.
Defining key terms
Some of the key terminologies that are used in the Bill – which require explicit definitions to eliminate vagueness and broadness of meaning – have not been provided with precise definitions. As a result, reading the Bill leaves one with a hazy and broad understanding of what constitutes online safety. This ambiguity has the potential to be utilised to drastically restrict the content of online communications, including that of the general public. The same reasoning applies to other terms such as “prohibited statements”, “inauthentic behaviour” and so on.
Furthermore, the phrases which are used under the objectives of the Bill, such as “distressing statements” and “false statements” pose serious definitional issues. Even for the former, no interpretation is offered under the Interpretation section of the Bill. Even though the latter is supplied with an interpretation, it is highly subjective because it contains the words “known or believed by its maker to be incorrect”. As a result, determining whether a statement is a false statement is problematic.
Establishment of an OSC
The Bill calls for the creation of an OSC, a perpetual succession corporation that can sue and be sued. The Commission has the authority to decide whether statements made through any online method, including social media, are considered false or prohibited, a decision that can potentially be made arbitrarily. Additionally, it has the power to order Internet access service providers to prevent access to, remove, or disable such utterances. It can also undertake investigations with the assistance of the Police, enter the premises for an inspection, and prosecute, forbid, or impose fines.
Therefore, it is plain that these powers are extensive and excessively broad, and their abuse, as in the case of the Executive Presidency, is extremely obvious. Furthermore, it is considerably simpler for the Commission to exercise its authority in the manner it sees fit, as phrases such as “prohibited statements” and “false statements” are not defined. These are very practical as well as theoretical issues that need to be addressed prior to the approval of the Bill.
The lack of a defined method by which people can challenge the notices issued by the Commission is another noteworthy problem. When a person lodges a complaint to the Commission about being offended by the communication of a prohibited statement, the Commission should look into the complaint and may then issue a notice requiring the person to take action to prevent the circulation of the said statement. The notice must be met by the subject within 24 hours. But there is no way for the affected person to challenge such notice, which is a serious flaw and gives no indication of how checks and balances will be made on the Commission’s authority.
The other issue that can be raised in relation to the Commission is the Presidential appointments as an expansion of Executive powers. The Commission consists of five members, and the power to appoint all the members – including the Chairperson – is vested in the hands of the President. It raises important questions about the potential erosion of democracy. On the other hand, a Commission that is entirely beholden to the President may also find it challenging to maintain impartiality and make decisions that are in the best interest of the public, which can possibly lead to undue influence and bias in its decision-making processes.
Furthermore, when the President is solely responsible for appointments, there is a risk of these appointments becoming highly politicised. Presidents may appoint individuals who share their political ideology or are loyal to their Governments, rather than selecting candidates based on their qualifications and merit. This can lead to a situation where the Online Commission becomes a tool for advancing a particular political agenda, rather than serving as a neutral regulatory body. When the situation is such, utilising the provisions of the Bill against targeted parties by the State is very obvious. Therefore, there are serious perils associated with the proposed Presidential appointments.
Striking a balance
Regardless of how relevant and timely the Bill is, several of its provisions raise issues about how to strike a balance between the protection of fundamental rights and the assurance of online safety. Striking such a balance is a must, as safeguarding one right does not give the right to violate other rights that have already been granted – particularly the freedom of speech, which is regarded as the bedrock of democratic societies, allowing individuals to voice their opinions, critique Government actions, and engage in meaningful debates.
However, as previously said, the Commission has the authority to evaluate whether a statement is false or threatening, alarming, or distressing, and this determination is frequently subjective. What one individual finds alarming or distressing, another may not. As a result, the interpretation of such statements can vary widely, resulting in inconsistent enforcement and the potential for bias in decision-making. In other words, such powers can freely be misused to suppress dissent or criticism, with serious consequences for free speech. As a result, striking the correct balance between online safety and freedom of speech is critical. It requires careful consideration, open debate, and a commitment to guarantee that any restrictions on free speech are proportionate and justifiable.
Who is affected by the Bill is also one of the key problems that require attention. Any person found accountable under the provisions of the Bill is the appropriate response. It sets unjustifiably high fines and prison terms of one, two, three, or five years for offences that are overbroad and vague. Such a term of imprisonment or fine, or both such imprisonment and fine, may be doubled in the event of a second or subsequent conviction. The Bill further states that the “failure to comply with the directives of the Commission” is an offence punishable by imprisonment for a term not exceeding five years or a fine not exceeding Rs. 1 million, if not carried out within 24 hours.
However, any Government whose intention is not noble but to weaponise the provisions of the Bill against targeted parties who are not loyal to their regime, now has everything in terms of creating a digital landscape in which critiques of the Government are no longer allowed. This is also one of the serious issues that must be addressed, because having ill-defined offences with disproportionate and unjustifiable punishments is extremely dangerous.
A glimpse into modern-day society reveals how online communications such as social media and other online platforms play an essential role in shaping current political views. It is potent enough to either sway public opinion in favour of a new political leader or to even depose a current political leader. Therefore, any Government that is incapable of controlling them in the manner that they desire will suffer greatly. Consequently, it is no surprise that any Government, once in power, would find such powerful online platforms to be extremely unhealthy and frightening. Any Government would therefore wish to have control over them in order to repress them, and once this proposed Bill is passed, it will be simple to carry out.
However, this does not imply that there should not be legislation that regulates electronic communication. It should be acknowledged that some measure of control needs to be implemented in order to stop the spread of lies, false allegations, and other violent remarks. The ruling Government must also launch such an endeavour. However, it is also the obligation of the same – which has been utterly neglected – to ensure that it is not an arbitrary one.
One may also argue that if Governments behave in the best interests of the people, the proposed Bill can be enacted without any of the above mentioned dangers. For example, one might say that such dangers can be averted if the President governs according to democratic principles, loyalty is not considered when members are appointed to the Commission, such members do not interpret unclear language in favour of the Government, and so on. In a country like Sri Lanka, however, such a scenario is nothing more than a hypothetical notion, as history has shown.
(The writer is a law graduate)
Courtesy of The Morning