Lanka in ferment over online bill, critics fear 'chilling effect on freedom of expression'

Sri Lankan government’s plans to introduce a controversial 'Online Safety Bill' has run into strong opposition amid fears that it can have a chilling effect on freedom of expression in a country still battling a crippling financial crisis.

The bill was presented by the ministry of public security, which controls the police. It is modeled on the lines of Singapore’s Protection from Online Falsehoods and Manipulation Act (POFMA).

The government claims it is being introduced to regulate online activities within and outside Sri Lanka to protect children and adults from being abused through the Internet.

The draft has also introduced a broad range of offences and procedures to prevent them. These include measures to detect, prevent and safeguard against the misuses of 'online accounts and bots'.

Under the provisions of the bill, a powerful five-member Online Safety Commission (OSC) will be set up to achieve the objectives in the proposed legislation. The authority to appoint or remove members of OSC, including its chairman, will be vested with the president.

Sweeping powers

The draft gives the OSC sweeping powers, including the power to investigate complaints relating to 'prohibited statements', issue notices to individuals disseminating 'false statements', direct Internet service providers and intermediaries to remove such statements, and to issue codes of practice by way of rules to service providers and others in Sri Lanka.

Critics say the bill gives the OSC power to block websites and instruct Internet Service Providers to restrict access to specific online locations. There were also concerns that many clauses on offences were too broad and vaguely defined.

Also, punishments, including fines and prison sentences up to five years for some offences, were deemed excessive. The bill stipulates that the jail term or fine may be doubled in the event of a second or subsequent conviction.

There have been widespread concerns both locally and internationally after the bill was gazetted. Calls grew for the government to reconsider it.

A spokesperson for the UN High Commissioner for Human Rights said the bill “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 contain vaguely-defined terms and definitions of offences which leave significant room for arbitrary and subjective interpretation, and could potentially criminalise nearly all forms of legitimate expression, creating an environment that has a chilling effect on freedom of expression,” the spokesperson added.

Petitions filed

An unprecedented 45 fundamental rights petitions were filed with the Supreme Court challenging the constitutionality of the draft bill. The petitioners included Opposition MPs and activists, civil society activists, trade unionists, journalists and the head of Sri Lanka’s Catholic Church.

As the hearings began, the government presented a long list of amendments it said will be incorporated when the bill comes up for debate in parliament. After concluding its hearing into the petitions, the Supreme Court sent its determination to parliament on November 7, where it found that as many as 31 clauses were inconsistent with the Constitution and would require a two-third parliamentary 'special majority' to pass in its current form.

That means that these clauses would require the support of 150 of the 225 MPs – numbers the government doesn’t have. However, if these clauses are amended subject to the determination of the court, they would only need a simple majority – 113 MPs.

Aside from the amendments submitted by the government, the Supreme Court recommended several of its own amendments.

Among key amendments are that the appointments of OSC members have to be subjected to approval by the Constitutional Council, a 10-member body chaired by the parliament Speaker and which has both government and Opposition MPs as well as civil society representatives. The council is responsible for maintaining the country’s independent commissions and monitoring them.

Accordingly, the president can only recommend nominees to the OSC. The council will have the authority to endorse or reject the nominations. Any removal of OSC members too can be done subject to the council’s approval, as per the amendments to be introduced.

The amendments

Some powers of the OSC have been subjected to judicial oversight through the proposed amendments. The court found words in some clauses vague and ambiguous. These may render the clauses open to wide interpretation, which could lead to abuse of power. The court further deemed that the punishments for repeat offenders were excessive.

A senior official at the ministry of public security told The Federal on the condition of anonymity that all the amendments suggested will be forwarded to the cabinet for approval. Then, the bill will be gazetted again and presented to parliament.

Those who moved the court, however, say they are opposed to even an amended bill and insist they will continue to push for the entire legislation to be scrapped.

Existing laws are sufficient to act against many of the offences listed in the bill, said Tharindu Jayawardhana, president of the Young Journalists Association and a petitioner. “If the aim is to introduce new laws to protect women and children, then they should have a far more extensive dialogue with the public about the nature and scope of those laws,” he said.

Jayawardhana added that while the amendments may have pruned some of the unchecked powers of the OSC, the dangers posed to freedom of expression remained. He said he expected the government to try and push an amended version through parliament at the first opportunity.

Growing criticism

The government is hiding behind technicalities by proposing dozens of amendments, said Eranga Gunasekara of the Socialist Youth Union (SYU), the youth wing of the Marxist JVP political party. “We do not consider even an amended bill in a positive light. This legislation is meant to stifle freedom of expression.”

No one is saying anything good about the government on social media and the criticism has evidently stung those in power, felt Mujibur Rahuman, a former MP of the main Opposition Samagi Jana Balawegaya (SJB). He wondered why the bill was not presented by the ministry of media.

“The fact that it was presented by the public security ministry shows the government’s attitude is driven by a desire to crack down on dissent online,” said the vocal politician.