Photograph courtesy of pwc
In an era where the digital landscape has become an integral part of our lives, ensuring online safety has never been more crucial. As the online realm grapples with issues like cyberbullying, misinformation and the misuse of online platforms, the government has introduced an Online Safety Bill. Central to the implementation of the bill is the establishment of the Online Safety Commission. This article examines the proposed bill to assess whether the online safety commission will enhance online safety or usher in a new era of heightened online surveillance and suppression.
Politics in commission appointments
The bill proposes a five member commission with qualifications spanning fields such as information technology, law, governance, social services, journalism, science and technology and management (section 4(3)). These members will be appointed by the president and will serve for a period of three years. The president holds the power to dismiss any member from their position after providing reasons for the decision (section 7(2)).
In the constitution the president is not only the head of state but also the head of the executive and the government and the commander-in-chief of the armed forces. Under the immunities granted to the president, no legal proceedings may be initiated or continued with regard to official or private matters against the president while in office. The constitution does not contain an absolute prohibition against the incumbent president from engaging in party politics. For example, among the eight executive presidents since 1978, only two, Gotabaya Rajapaksa and Maithripala Sirisena, were not the leaders of their respective parties at the time of election. Except for Gotabaya Rajapaksa, the other seven held the position of party leader while serving as president. The considerable power wielded by these presidents, along with their direct involvement in party politics, raises reasonable concerns about appointing non-partisan members to the commission as well as questions about the credibility of the commission in fulfilling its duties and functions without bias.
Unprecedented authority in the hands of a commission
Sri Lanka has cultivated a legal culture through Supreme Court judgments interpreting freedom of speech and expression broadly under Article 14 of the constitution, encompassing “the right to criticise the government and involve in participatory discussions” (Fernando v SLBC 1996). In the landmark judgment of Amaratunga v. Sirimal and others (1993), the Supreme Court determined that speech and expression extend to forms other than oral or verbal communication and that criticism of the government is permissible under the constitution. In this case, the court reiterated that the expression of views, even if they are unpopular, obnoxious, distasteful or wrong, falls within the ambit of freedom of speech and expression, provided that there is no advocacy of or incitement to violence.
This context underscores the tremendous duty placed on the proposed commission, charged with the dual mandate of ensuring online safety while preserving human rights. In this context the bill, in Section 11, assigns four kinds of powers to the commission:
- Investigate complaints about prohibited statements;
- Issue notices to individuals disseminating false statements and, if not obeyed, direct internet service providers to remove such statements from online locations;
- Undertake court directed investigations and advise government on online safety.
- Issue codes of practice for service providers and register social media platforms.
Part III of the bill prescribes a range of offenses including the communication of false statement posing threats to national security (Section 12); causing contempt of court (Section 13); inducing malicious writing (Section 14); deliberately insulting religious feelings (Sections 16 and 17); engaging in deception, cheating, or impersonation (Sections 18 and 19); and encouraging people, particularly the armed forces, to disrupt public peace, engage in treason or mutiny (Sections 20 and 21). Additionally, the bill prohibits the publication of private information such as images, audio or video (Section 22), dissemination of obscene material (Section 23), creation of bots capable of committing prescribed offenses (Section 24) and non-compliance with the commission’s directives (section 25).
Against this backdrop, the commission’s power to receive complaints and initiate investigations sparks considerable controversy. This authority encompasses offenses rooted in the communication of false statements, which can be subjectively interpreted and potentially weaponized to silence dissenting voices. The bill defines a false statement as “a statement known or believed by its maker to be incorrect or untrue, made with the intent to deceive or mislead but does not include a caution, an opinion, or imputation made in good faith” (Section 56). This subjective definition introduces the risk of categorizing any dissenting opinions as false statements.
The bill redundantly addresses offenses already covered by existing laws, some of which have suffered from selective enforcement. For instance, Section 3 of the International Covenant on Civil and Political Rights (ICCPR) Act criminalizes the advocacy of hatred based on nationality, race or religion, which incites discrimination, hostility or violence. Regrettably, this Act has not yielded a single conviction against those responsible for inciting anti-minority violence. Notable instances include the spread of anti-minority sentiments, particularly against the Muslim community, in the wake of the 2014 Aluthgama attacks, the 2017 Gintota incidents, and the post-Easter Sunday attacks in 2019. By contrast, the arrests of standup comedian Nathasha Edirisooriya on remarks on Buddhism, author Shakthika Sathkumara for a short story, Abdul Raheem Masaheena for a dress mistaken as a Buddhist symbol and Ramzy Razeek for mentioning ideological jihad on Facebook illustrate the broad application of the same provision against selected individuals.
Bestowing the politically appointed commission with same extensive powers increases the probability of perpetuating the practice of using the law to stifle dissent and target specific individuals, instead of genuinely ensuring online safety.
Absence of an appeal mechanism
Any person affected by a prohibited statement can file a complaint with the commission in oral, written or electronic form (Section 26(1)). The commission should designate information officers who will be in charge of receiving the complaint. If possible, the complainant should also serve the copy of the complaint to the person communicated the prohibited statement and any internet service provider (Section 26(3). If the commission decides that the prohibited statement has been communicated, the notice can be issued to the person to prevent the circulation of such prohibited statement within 24 hours. If the person does not comply with the notice, the commission can issue a notice to the internet service provider or the intermediary to (a) disabled access to the prohibited statement or (b) to remove the prohibited statement from such online location.
While individuals who receive notices have the opportunity to defend themselves in court if the commission files a lawsuit based on its investigation, the commission holds the sole authority to decide whether to initiate legal proceedings. Unfortunately, the bill lacks provisions that permit individuals who receive notices to appeal against such notices. This omission raises concerns about potentially infringing on the fundamental right to be heard at the fair trial under Article 13(3) of the constitution.
The proposed commission’s potential to fill with political appointments, unchecked authority and lack of appeal cast doubt on its effectiveness in achieving the bill’s objectives. Therefore, if the government genuinely intends to enhance online safety, it is of utmost importance to consider alternative measures. These could include providing a conducive environment for internet service providers to establish their own codes of conduct, promoting independent fact checking entities and implementing a mechanism, overseen by established courts, for the swift removal of child pornography and other sensitive content. By adopting such approaches, Sri Lanka will be able to better safeguard online spaces while preserving essential principles of freedom of expression and due process.