Sri Lanka: Online Safety Bill -The Act, Critique & the SC Determination

1. The Sri Lanka Government gazetted the Online Safety Bill on 03 October 2003 which had been approved by the Cabinet. The Minister of Public Security gazetted it. The cabinet received the clearance of the Attorney General for the Bill on 04 September 2023.
2. According to the cabinet decision, the following actions have been interpreted as offences as indicated in Part III of the Bill: Communication of false statements of facts in Sri Lanka;  Making false statements amounting to contempt;  Wantonly giving provocation by a false statement to cause riot;  Disturbing a religious assembly by a false statement;  Communicating a false statement with deliberate intent to wound religious feelings;  Deliberate and malicious communication of false statement to outrage religious feelings; Cheating;  Cheating by personation;  Intentional insult by false statement with intent to provoke a breach of peace;  Circulating false report with intent to cause mutiny or an offence against the state etc.; Communicating statements of fact to cause harassment;  Child abuse;  Making or altering bots to commit an offence.

3.  The Bar Association of Sri Lanka (BASL) calls upon the Government to immediately withdraw the Anti-Terrorism Bill and the Online Safety Bill, published in the Gazettes issued on the 15th and 18th of September respectively, and not to proceed with the said Bills. (24.09.23)

4. The Office of the High Commissioner for Human Rights(OHCHR) stated that Online Safety will severely regulate and restrict online communication, including by the general public and will give authorities unfettered discretion to label and restrict expressions they disagree with as “false statements”. Many sections of the Bill contain vaguely defined terms and definitions of offences which leave significant room for arbitrary and subjective interpretation and could potentially criminalize nearly all forms of legitimate expression, creating an environment that has a chilling effect on freedom of expression. It urged the Government to undertake further meaningful consultation with civil society and UN independent experts and to make substantial revisions to the draft laws in order to bring them into full compliance with Sri Lanka’s international human rights obligations. (13 October 2023) However, the Government of Sri Lanka (GoSL) did not heed that advice.

5. In a detailed letter addressed to the President of Sri Lanka, three UN experts expressed that the proposed Online Safety Bill will give immense powers to both newly established Commission, and could be in violation of the basic principles of freedom of expression, peaceful assembly and association and the right to privacy. We encourage the withdrawal, public consultation and substantial review of key aspects of both the proposed Online Safety Act outlined in this letter to ensure that the adopted legislation complies with your Excellency’s Government’s international human rights obligations.” The letter further urged that “with general elections scheduled in 2024 and 2025, we urge your Excellency’s Government to respect media freedom, independence and pluralism, in line with the provisions of article 19 of the ICCPR.”

6. The Human Rights Commission of Sri Lanka (HRCSL) made preliminary observations and recommendations on the Online Safety Bill with a view to ensuring the Bill’s compatibility with the fundamental rights chapter of the Sri Lankan Constitution. The key recommendations are as follows:

• • The Bill should avoid criminalising statements deemed merely to be ‘distressing’ to persons, as feelings of ‘distress’ can vary in degree and can be highly subjective.
  • The proposed Online Safety Commission should be appointed through an appointment mechanism that guarantees its political independence. This Commission should not be vested with quasi-judicial powers, nor with powers to designate online locations as ‘declared online locations’.
  • The provisions in the Bill that set out procedures for adverse decisions to be made against persons should be consistently revised to ensure that such persons be afforded an opportunity to be heard in keeping with the rules of natural justice.
  • The various offences in the Bill that relate to ‘prohibited statements’, which incite others to commit offences, already found in the Penal Code Ordinance, No. 2 of 1883, need to be removed due to such new offences in the Bill being superfluous. Or substantially revised in terms of their precision, and the rationality, reasonableness, and proportionality of the penalties imposed.
  • Clear criteria for the classification of ‘inauthentic online accounts’ should be included in the Bill in a manner that preserves the freedom of online users to remain anonymous, and to engage in parody or satire.
  • Experts appointed to assist police investigations should not be vested with police powers, as they may be private actors who are not publicly accountable. (Press Notice No: HRC/P/i/E/02/10/23)

7. The International Commission of Jurists (ICJ) expressed their concern that the newly proposed Online Safety legislation if adopted in its present form, would serve to crush free expression and further contract an already shrinking civic space in Sri Lanka. The statement said that “the Bill should not be evaluated in a vacuum, but instead must be read in conjunction with existing and proposed legislation that threaten human rights. Such laws include the extremely misused ICCPR Act of 2005, the Prevention of Terrorism Act (PTA), the Bureau of Rehabilitation Act, and the proposed Anti-Terrorism law which seeks to replace the PTA. This body of legislation, taken together, fosters a chilling effect on the exercise of fundamental freedoms restricting civil society while unduly expanding the reach of the security state.”

Among the selected flaws in the Online Safety Bill ICJ highlighted were:

• • The bill provides for the establishment of a five-member ‘Online Safety Commission’ that is to be appointed on the sole discretion of the President. This bill would give the president unfettered discretion where both appointment and removal is concerned.
  • The Commission would also be vested with a wide range of powers, some of which encroach into the functions of the judiciary. It essentially acts as sole arbiter of matter of fact and is entitled to issue notices or directives against any person, internet service provider (ISP) or internet intermediaries who/which is alleged to have communicated a prohibited or false statement. The bill does not specify the process through which the Commission would arrive at this decision.
  • The bill does not provide for judicial review of the Commission’s decisions or procedures. Instead, clause 49 seeks to protect the Commission, its staff, or any expert appointed under clause 37 from being brought to court for any act or omission done in good faith.
  • A particularly problematic aspect of the bill is the provision of vague and overbroad definitions of offences.
  • The prohibitions listed in this draft legislation go beyond the restrictions allowed for under the  ICCPR and the Sri Lankan Constitution, as clause 12 states that “any person who poses a threat to national security, public health or public order or promotes feelings of ill-will and hostility between  different classes of people, by communicating a false statement, commits an offence.”
  • Clause 25 of the bill, which refers to ‘failure to comply with the directives of the Commission’ would make it an offence to fail to comply with such directive within a period of 24 hours and makes the person liable to imprisonment for a term not exceeding five years or to a fine not exceeding one million rupees.
  • Repeated mention of ‘religion’ in these provisions is a cause for concern as they come in a context where there is ongoing strife relating to contested religious sites between majority and minority religious communities, thus creating a risk of the selected application to silence expression by persons from minority religious communities.

8. After the Bill was tabled in Parliament, 51 petitions were filed in the Supreme Court challenging the constitutionality of the Bill. Deliberations of the petitions filed challenging the Online Safety Bill, were held at the Supreme Court on 18 and 19^th of October 2023.  The Bar Association, media institutions, and advocacy groups were among the petitioners.
9. The lawyers appearing for the petitioners argued that the Bill provides very little online safety but is drafted to stop people from expressing ideas and views on the internet and social media; The Bill allows a five-member Commission to take down within 24 hours any post that they consider to be a false statement and warned that allowing five people who are not even part of the judiciary to decide on what is true or false is a perilous precedent that is aimed at drastically controlling millions of online users from sharing their ideas and views; the refusal to take down a post could result in a jail term imposed by a Magistrate not only on the individual but also on the service provider; If the Bill goes through, Sri Lanka could lose Google, Facebook, Twitter, Instagram, WhatsApp and even essential services such as Google search, Google Maps and G-mail; The Bill has disregarded that many of the services used by millions of Sri Lankans are provided by international companies based outside of Sri Lanka who would rather stop the service and leave Sri Lanka rather than be subjected to the risks of this kind of high-handed governmental actions; The Bill presented by the Minister of Public Security will be the death knell not only for freedom of expression but also for all businesses that operate on or use online services.
10. Viraj Dayarathne, Additional Solicitor General presented a large number of amendments at the commencement of the hearing which he said would be introduced at the Committee Stage.
11. 11. Many objected to this position saying that this is an attempt to bypass the Supreme Court from making a determination. If the Bill is going to be drastically changed at the Committee Stage, the proper course of action is to withdraw this Bill and present a fresh Bill with the changes so that the people would have a chance to challenge the Bill. Some said that the proposed amendments do not reduce the dangers that this Bill poses.
12. After examining the petitions by a three-member bench of Supreme Court judges, , the decision was communicated to the Speaker. The decision was announced by the Deputy Speaker in Parliament on 07-11-2023. Read the full determination here.
13.  Supreme Court recommended amending 31 of the 56 articles to pass the Bill by a simple majority. The Parliament may not deviate from the Supreme Court’s decision when amending those articles at the committee stage. But Parliament may amend other articles at the committee stage within the limits of Article 78(3) of the Constitution.
14. According to the decision, sections 3, 5, 7, 9, 11, 12, 13,14, 15,16,17,18,19, 20, 21, 22, 23, 24, 25, 26,27,28,29, 30,31, 32, 36, 37, 42, 45, 53 and 56 can be approved as mentioned in the Bill, if passed by a special majority of two third including the absent Members of the Parliament, according to the provisions mentioned in Article 84(2) of the Constitution.
15. Scenarios regarding the way forward of the Bill: I. Passing the Bill as it is by a special two-thirds majority. 2. Incorporating the Supreme Court’s recommendations at the committee stage and passing the bill by a simple majority. 3. Amending the bill by incorporating amendments suggested by media activists and civil organizations at the committee stage. 4 Withdrawal of the Bill without going to a second reading. ( Jagath Liyanaarachchi)
16. From the list of Clauses that are inconsistent with the Constitution, the Court does not specifically comment on Clauses 7, 9, 12, 19, 25, 28, 29, 30, 31, 32, 36, 45 and 56. In such cases, it should be presumed that the Court has determined that the AG’s proposed amendments would need to be adopted at the Committee Stage of Parliament for the Clauses to be cured of any inconsistency with the Constitution. It should also be noted that there are instances where the AG has proposed the total deletion of the Clause, and the Court has endorsed the AG’s view while holding that the Clause is inconsistent with the Constitution. E.g. the AG has recommended that the offences found in Clauses 16 (wounding religious feelings) and 20 (provoking a breach of peace) should be deleted altogether. Since the Court endorses this view, these Clauses cannot be amended. They have to be deleted. ( Dr. Gehan Gunatilleke )
17. Options for Covil Society: 1. Request the bill to be withdrawn and re-drafted after extensive discussion. 2. Urging MPs to abstain from voting in favour of the bill 3. Intervening in making rules if the bill is passed 4. Importance of Drafting a new Bill. (Jagath Liyanaarachchi)
18. A survey conducted by Verité Research, in October 2023 showed that only 34% of the respondents were aware of the government’s introduction of a bill to regulate behaviour on social media. Out of them 56% of had expressed concerns that it would curtail the freedom of using social media while 25% thought it would not have a significant impact, and 19% believed it would help reduce the misuse of social media.

Compiled by Sunanda Deshapriya