Online Safety Bill: Sri Lanka Government to determine “truth” and crack down upon online dissent

By Staff Writer

The Ministry of Public Security of Sri Lanka recently gazetted another draconian piece of legislation termed “Online Safety Bill”.  Successive Sri Lankan governments had attempted a number of times to pass laws to block social media content, claiming to “fight fake news.”

Released to the public in mid September, having approved by the Cabinet, the Bill proposes: “to establish the Online Safety Commission; to make provisions to prohibit online 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 communication of false statements of fact“. 

If the bill becomes law, the provisions of the Online Safety Act (OSA) shall apply where a person commits an offence under this Act in respect of a citizen of Sri Lanka, or a loss or damage is caused within or outside Sri Lanka by the commission of an offence under this Act, to the State or to a person resident in Sri Lanka.

Objectives

The declared objectives of this Act are as follows: 

1. to protect persons against damage caused by communication of false statements or threatening, alarming or distressing statements;
2. to ensure protection from communication of statements in contempt of court or prejudicial to the maintenance of the authority and impartiality of the judiciary;
3. to introduce measures to detect, prevent and safeguard against the misuses of online accounts and bots to commit offences under this Act; and
4. to prevent the financing, promotion and other support of online locations which repeatedly communicate false statements of fact in Sri Lanka.

A President’s commission

The Act establishes the Online Safety Commission (OSC) for the purpose of achieving the said objectives of the Act. Its members have a tenure of three years since appointment. 

OSC shall consist of five members appointed, without any recommendation or approval of the Constitutional Council, by the President, having qualifications and experience in one or more of the fields of information technology, law, governance, social services, journalism, science and technology or management.

The President may, at his will, for reasons assigned, remove a member of the Commission from his office.

The extensive powers and functions of this commission includes the following:

1. to issue directives to persons, service providers or internet intermediaries, who have published or communicated or whose service has been used to communicate any “prohibited statement”, requiring them to provide to persons who have been adversely affected by any prohibited statement, an opportunity of responding to such prohibited statement;
2. to issue notices to persons who communicate false statements that constitute offences under this Act, to stop the communication of such statements;
3. to issue directives to persons who communicate prohibited statements under this Act, to stop the communication of any such statements;
4. to issue notices to any internet access service providers or internet intermediary to disable access to an online location which contains a prohibited statement by the end users in Sri Lanka or to remove such prohibited statement from such online location;
5. to refer to the appropriate court for its consideration any communications that may be in contempt of court or prejudicial to the maintenance of the authority and impartiality of the judiciary, and to provide such assistance as may be required from any court in respect of any matter so referred to such court;
6. to make recommendations to service providers, internet intermediaries and internet access service providers to remove prohibited statements;
7. to maintain an online portal containing information to ‘enlighten’ the public of the falsity of any statement. (So, all other reasoned opinions in the public domain would be declared false! Founding a Unipolar Truth moment of an authoritarianism reigns, where one class decides what truth is);
8. to specify declared online locations in terms of the provisions of this Act, and make recommendations to disable access to the information disseminated through such online location;
9. to carry out such investigations and provide such services upon being directed by any court;
10. to issue codes of practice by way of rules for service providers and internet intermediaries who provide internet based communication services to the end users in Sri Lanka;
11.  to register, in such manner as may be specified by rules made under this Act, the websites providing social media platforms to the end users in Sri Lanka;
12.  to consult, to the extent the Commission considers appropriate, any person or group of persons who or which may be affected, or likely to be affected, in the discharge of its powers and functions;
13. to advise the Government, as the Commission deems appropriate, on all matters concerning online safety in Sri Lanka, within the purview of the Act;
14. to acquire and hold property movable and immovable, and to sell, lease, mortgage, exchange, or otherwise dispose of the same.

The Bill defines “prohibited statement” as a statement specified in section 12, 13, 14, 15, 16, 17, 18, 19, 20 ,21, 22 or 23,  which lay down the offences under the Act. 

The Commission also shall make rules for the purpose issuing “the codes of practice applicable for service providers and internet intermediaries who provide internet based communication services, specifying security practices and procedures required to be followed by them”,  and specifying “the manner in which the websites providing social media platforms to the end users in Sri Lanka shall be registered under this Act.”

Offences 

The offences under this law are based on the fundamentally misconceived, vague and highly subjective concept of “false statement”, referred to in the Bill. The Bill defines “false statement” as “a statement that is known or believed by its maker to be incorrect or untrue and is made especially with intent to deceive or mislead but does not include a caution, an opinion or imputation made in good faith”.  No politician, no religious preacher, nor any  incumbent of a single Devalas would be spared!

Briefly, these offences are as follows: 

1. Communicating a false statement, that would pose a threat to national security, public health or public order or promotes feelings of ill-will and hostility between different classes of people; [An offence closely in line with that of the Prevention of Terrorism Act of 1979, which too the government has proposed to replace by another legislation titled, Anti-Terrorism Act]
2. Communicates a false statement which amounts to contempt of court, in the opinion of any court;
3. Maliciously or wantonly, communicating a false statement and thereby giving provocation to any person intending or knowing it to be likely that such provocation, will cause the offence of rioting to be committed,
4. Voluntarily causing disturbance to any assembly lawfully engaged in the performance of religious worship or religious ceremonies, by communicating a false statement;
5. With the deliberate intention of wounding the religious feelings of any other person (called the “target person”), communicating a false statement to the target person;
6. With the deliberate and malicious intention of outraging the religious feelings of any class of persons, insulting or attempting to insult the religion or the religious beliefs of that class by communicating a false statement (closely in line with Section 3 of the highly abused International Covenant on Civil and Political Rights Act No.56 of 2007) 
7. Deceiving any person by communicating a false statement, by way of an online account or through an online location to deliver any property or to do or omit to do anything; 
8. Impersonation by means of an online account;
9. Intentionally insulting by communicating a false statement, and thereby giving provocation to any other person (the “target person”), intending or knowing it to be likely, that such provocation will cause such target person to break the public peace, or to commit any other offence; (a window for the revival of criminal defamation law)
10. Communicating a false statement, with intent to cause any officer, sailor, soldier, or airman in the navy, army or air force of Sri Lanka to mutiny, or with intent to cause fear or alarm to the public, induces any other person to commit an offence against the State or against the public tranquillity; The punishment would be imprisonment upto seven years. (Will this provision not be used to criminalize mass dissent and protests against the government’s austerity and anti-democratic measures?)
11. Wilfully making or communicating a statement of fact, with intention to cause harassment to a “target person”, by publishing any “private information” of the target person or a related person of the target person, and as a result causes the latter or any other person harassment; (Is this not intended to protect politicians and their cronies from public allegations, often of corruption?)
12. By way of an online account or through an online location commits or aids and abets an act which constitutes several offences against children under the Penal Code; 
13. Making or altering a bot with the intention of communicating or enabling any other person to communicate, by means of a bot, a statement which constitutes an offence under this Act;
14. Failing to comply with any directive issued in respect of such person by the OSC within twenty four hours of its receipt;

These ‘offences’ could have been committed by a person in or outside of Sri Lanka. The punishments range from one to five, seven and to twenty years. In the event of a second or subsequent conviction, the specified term of imprisonment or fine or both such imprisonment and fine may be doubled.

A person aggrieved by the communication of a prohibited statement which is seen, heard or otherwise perceived by the users of internet based communication services (the “end users”) in Sri Lanka, by any other person, may either orally, in writing or in electronic form, make a complaint providing information pertaining to such communication to OSC.

Prohibition Orders

Any person claiming to have been affected by the communication of any prohibited statement may apply to the Magistrate’s Court by way of petition and affidavit to obtain an order to prevent the circulation of such information. The Magistrate may then issue a conditional order to such person or the internet access service provider or internet intermediary on whose online location such prohibited statement has been communicated. The person against whom the order is issued gets only one week to appear and show cause.

Liability of Internet Service Providers 

Those who provide internet intermediary service, telecommunication service, service of giving public access to the internet or a computer resource service should adhere to the relevant code of practice issued by the OSC. Where such rules are non-complied with,

thereby causing wrongful loss to any other person, the service provider shall be liable to pay damages by way of compensation to the person who suffered the loss.

However, such service providers shall have no liability in relation to the communication of a prohibited statement circulated through the online location owned, operated or controlled by such person, or for making available to the end users through such online location a communication link which contains any prohibited statement by any other party.

Commission to declare prohibited online locations 

The ostensibly politically bias OSC may declare an online location as a “declared online location” on the following circumstances: where three or more different prohibited statements have been or are being communicated to the end users in Sri Lanka on such online location which have been held to be a prohibited statement by the Magistrate’s Court; and where at least three of such statements had first been communicated to the end users in Sri Lanka on such online location within six months prior to the date of a declaration under this section is made.

The Bill defines “online location” as “any website, webpage, chatroom or forum, or any other thing that is hosted on a computer and can be seen, heard or otherwise perceived by means of the internet”.

It is incumbent upon the online location to communicate to the end user a notice in such form as may be specified in such declaration, that the online location is the subject of a declaration by the Commission.  The online location which fails to do so will be prosecuted in the Magistrate Court to disable access by the end users in Sri Lanka to such declared online location. 

After a prescribed period commencing on the date a declaration so made  by the OSC comes into effect, any paid content that it includes or causes to be included on a declared online location, should not be communicated in Sri Lanka on the declared online location.

A person who expends or applies any property knowing or having reason to believe that the expenditure or application supports, helps or promotes the communication of prohibited statements to the end users in Sri Lanka on a declared online location commits an offence and could face imprisonment upto five years or to a fine not exceeding five million rupees. Further, it would also forfeit any property acquired through expending or applying any property by the commission of the offence of communication of prohibited statements.

Inauthentic Online Accounts

The Commission may issue a notice to an internet intermediary, requiring it to refrain from permitting any person from using one or more specified online accounts to interact with any end user of its internet intermediary service in Sri Lanka.

This law will prevent persons from being anonymous, holding pseudonyms online, often due to fear of being witch-hunted by the government for expressing political dissent. What a disaster for a democratic polity! 

Who is the ultimate arbiter of truth?

Commenting on this proposed law which is founded upon the aforesaid concept of “falsity”of statements, Sanjaya Jayasekera, Attorney-at-Law, told the EconomyNext as follows:

“Who decides truthfulness? Who is going to decide upon what is true or not? It may be a scientific truth, it may be a sociological truth. Who will decide that?”

“What they are planning to do is to abolish this democratic space, which is called social media. This law, if it is passed, would be a very anti-democratic law and an attack, a deadly blow against democratic freedom of expression,” Jayasekera has stressed.  

Internationally

In the guise of tackling disinformation, governments around the world have for years been engaging in legalizing strict controls on social media and online activity. This is in the backdrop of mass agitations and strikes against unpopular austerity measures implemented in these countries. 

In the United Kingdom, the long- prepared anti-democratic Online Safety Bill setting tougher standards for social media platforms such as Facebook, YouTube and TikTok has been passed by parliament in late September, 2023 and will soon become law after royal assent.

In India, last April, the Ministry of Electronics and Information Technology introduced IT rules empowering the ministry to notify a fact check unit of the Central Government that will identify fake or false or misleading online content. The Hindu reported that, accordingly, social media platforms and other intermediaries on the Internet are required to make sure that “fake news” articles about the Union Government, which have been declared as such by the Press Information Bureau (PIB), are taken down from their platforms when they are alerted to such posts.

United Nations human rights experts have expressed concerns on similar  new and draft laws in other countries including Australia, Brazil, Bangladesh, France, Singapore and Tanzania.

None of these countries are examples of democracy. 

This all encompassing law to ban online content is proposed by none other than the very discredited bunch of politicians working for the interest of the ruling class and international financial capital, having learnt much from the horrific experiences of the historic mass uprisings of the last year. This law is intended to face any future mass uprisings, and the government has already taken the economy as a concern of national security. As a matter of future defence strategies, for years, the Sri Lankan  government and its military apparatuses have been preparing with necessary security gears to face riots and any public insurgency against its rule. 

In the event the provisions of this Bill becomes law, it will be used against every mass media and social media activity critical of government conduct, dissent and political opponents, who are the real “target persons” of this law. 

[Image Courtesy of thenorthlines.com]