Thin Line Between Security and Civil Liberties in Sri Lanka: Assessing Legal and Human Rights Concerns Surrounding the Controversial Online Safety Bill

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As Sri Lanka prepares for a crucial parliamentary session on January 23, the Online Safety Bill proposed by Minister of Public Security Tiran Alas takes center stage, sparking fervent discussions and legal challenges.

The bill, unveiled on September 15, 2023, and presented to Parliament on October 3, has encountered significant opposition. Legal hurdles arose with 51 petitions challenging its constitutionality, resulting in a Supreme Court ruling allowing certain sections to proceed with a two-thirds majority, as outlined in Article 84(2) of the Constitution.

The Online Safety Bill aims to establish the Online Safety Commission, tasked with regulating online communication in Sri Lanka. The Commission, comprising five members appointed by the President for a three-year term, requires members with expertise in various fields, including information technology, law, governance, journalism, and science. Empowered to issue directives, the Commission can instruct individuals, service providers, or internet intermediaries involved in disseminating prohibited statements to allow affected parties the opportunity to respond. Additionally, the Commission holds authority to issue notices to internet service providers or intermediaries, mandating the removal or blocking of online locations featuring prohibited statements accessible to end users in Sri Lanka.

International and local organizations argue this poses a significant threat to freedom of expression in online spaces. The legislation grants the authority to define, regulate, and prosecute the production or publication of ‘false statements.’ This Online Safety Commission would have the power to order the removal or restriction of statements and sites, with potential investigations and prosecutions. Journalists and media workers may face imprisonment or substantial fines for violating the act.

The Human Rights Commission of Sri Lanka stressed the need to strengthen law enforcement capacities before legislating online criminal offenses.

The International Commission of Jurists (ICJ) called for evaluating the bill alongside existing laws, expressing concerns about threats to human rights.

The ICJ’s analysis delves into critical flaws within the bill, pointing to the wide-ranging powers vested in the proposed Online Safety Commission and appointed experts. It criticizes the bill’s provisions as overly broad, with concerns about the Commission’s discretionary authority and its potential encroachment into judicial functions. Furthermore, the bill lacks provisions for judicial review, raising questions about accountability.

Vague and overbroad definitions of offenses within the bill draw significant criticism. The ICJ points out that prohibitions listed in the legislation go beyond the restrictions allowed under international and Sri Lankan law. Concerns are raised about clauses targeting false statements that pose a threat to national security or public order, with potential repercussions for freedom of expression.

The ICJ also highlights the disproportionate punishment outlined in the bill, including hefty fines and imprisonment for ill-defined offenses. The lack of clarity on compliance directives and the potential for severe penalties raise fears of governmental overreach and censorship.

The Free Media Movement of Srilanka (FMM) strongly urges the government to reconsider and withdraw the Online Safety Bill, emphasizing the importance of preserving freedom of speech.

The Federation of Media Employees’ Trade Unions (FMETU) of the island nation condemns the proposed draconian bill, viewing it as a threat to the basic right to information and social freedom, particularly in the context of the growing economic, social, and political crisis in the country.

The Sri Lanka Working Journalists Association (SLWJA) expresses concern that the Online Safety Bill poses a significant threat to the fundamental right to freedom of speech and expression guaranteed by Article 14(1)(a) of the Constitution. They contend that the Bill’s provisions are overly broad and may exceed what is necessary to achieve its objectives, potentially infringing on these fundamental rights.

The International Federation of Journalists (IFJ) states that the Online Safety Bill, if passed, would be in clear violation of Sri Lanka’s constitutional commitments to fundamental human rights. The proposed Commission, entirely controlled by the President, is seen as contrary to the self-regulating media system necessary for true press freedom. The IFJ strongly urges Sri Lankan authorities to withdraw the proposed legislation and engage with media and legal stakeholders in its consultation processes.

The Bar Association of Sri Lanka voiced worries about the Online Safety Bill and the Anti-Terrorism Bill, fearing significant impacts on liberty, freedom, democracy, and the rule of law. The Asia Internet Coalition emphasized the importance of legislation not hindering innovation or restricting public discourse. The UNHCR conveyed concerns to the Sri Lankan government, and the Sri Lanka Press Institute warned about threats to freedom of speech.

Expressing the concerns, the UN Office of the High Commissioner for Human Rights (OHCHR), stated that the bill grants authorities’ expansive powers, potentially imposing restrictions not in line with international human rights law. OHCHR highlighted vaguely defined terms and offenses, leaving room for arbitrary interpretation, potentially criminalizing legitimate expression and chilling freedom of expression. The International Commission of Jurists emphasized the need to evaluate the bill in conjunction with existing and proposed legislation, warning of threats to human rights.

In response to the bill, 51 petitions challenging its constitutionality were filed in the Supreme Court. The court’s determination, submitted to parliament, found 31 clauses inconsistent with the constitution, suggesting amendments for a simple majority passage. The Attorney General submitted about 62 amendments during the court hearing. Concerns were raised that these amendments deviated from the bill’s merits and principles. 

Concerns persist as the Supreme Court’s role is limited to examining constitutionality, allowing the parliament to pass it with a special majority. The possibility of introducing new amendments after January 23, 2024, raises challenges, and once passed, there is no judicial review within the Sri Lankan legal system.

In response to the publication of the bill the Centre for Policy Alternatives (CPA) has expressed profound concerns regarding various clauses of the Bill. These concerns were initially conveyed through a series of infographics issued on September 22, 2023, emphasizing potential threats to fundamental rights and democratic values in Sri Lanka.

CPA underscores the critical need for frameworks that ensure the safety of individuals and groups, particularly children and women facing increased vulnerability to online threats. However, CPA emphasizes that such measures must be implemented in strict adherence to fundamental rights outlined in the Constitution and international standards. Regrettably, the present Bill, supposedly aimed at addressing online safety concerns, falls short of its intended purpose. It is viewed by the CPA as the latest governmental effort to broaden executive powers with inadequate safeguards and a concerning potential for misuse.

CPA’s apprehensions extend to both the substance of the Bill and the legislative process. Notably, the proposed Bill contains problematic provisions, including vague and broad terminology defining prohibited statements, the establishment of an Online Safety Commission with expansive powers, and severe restrictions on freedom of expression on social media. The Bill, as noted by CPA, not only imposes punitive measures but deliberately targets freedom of expression and dissent.

Furthermore, CPA expresses unease about the timing of the Bill, pointing to its simultaneous publication with the revised Anti-Terrorism Bill. This synchronicity is viewed as indicative of an undemocratic legislative agenda aimed at restricting freedom of expression and dissent in Sri Lanka. The Bill is seen as expanding the powers of the executive President, with potential consequences for human rights, governance, and democracy in the country.

Highlighting historical context, CPA notes previous attempts by governments to enact laws limiting freedom of expression, including proposals in 2015 and 2021. The organization also draws attention to the proposed Broadcasting Regulatory Authority Bill, yet to be gazette. CPA, in its consistent advocacy for protecting fundamental rights, urges the Government to withdraw the Online Safety Bill. It calls for a transparent legislative process involving diverse stakeholders to ensure the development of a law that safeguards fundamental rights and fosters a secure online environment.

As the parliamentary session draws near, The bill becomes a focal point, embodying the intricate balance between security and civil liberties. While recognizing the necessity of protective frameworks for vulnerable groups, particularly children and women facing online threats, concerns persist regarding the potential compromise of constitutional and international rights obligations by the government. Specifically, there are apprehensions about the impact on freedom of expression and opinion for the people of Sri Lanka through this bill and others scheduled for discussion in parliament.

If the bill is passed with the amendments proposed to the Supreme Court, it raises concerns about significant harm to freedom of expression in Sri Lanka, particularly affecting dissenting voices such as human rights defenders and journalists. The outcome of this legislative process will undoubtedly mold the landscape of online communication and freedom of expression in the country.

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