Sri Lanka: UN Special Rapporteurs say proposed social and mass media regulation laws “possibly” limit freedom of expression, peaceful assembly, association and privacy

By Staff Writer

In a communique to the President of Sri Lanka, three Special Rapporteurs of the United Nations Human Rights Council have expressed their dissatisfaction with the proposed social media regulation law, the Online Safety Bill (OSB) and another media related law, Broadcasting Regulatory Commission Bill (BRC). The communication is dated November 20, and the co-signatories are Irene Khan, Clement Nyaletsossi Voule and Ana Brian Nougrères, who are respectively the the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Special Rapporteur on the rights to freedom of peaceful assembly and of association and Special Rapporteur on the right to privacy, pursuant to Human Rights Council resolutions 52/9, 50/17 and 46/16.

The Rapporteurs “address some provisions of both aforementioned bills” that they “believe may not meet the requirements of international law and standards.” They “note potential violations of the rights to privacy, freedom of opinion and expression, and freedom of peaceful assembly and of association as protected by articles 12, 19 and 20 of the Universal Declaration of Human Rights (UDHR), and articles 17, 19, 21 and 22 of the International Covenant on Civil and Political Rights (ICCPR), acceded to by Sri Lanka on 11 June 1980.”

They emphasize that “article 19 (2) of the ICCPR guarantees the right ‘to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.’ Under international law, restrictions to this right are permissible only if they are provided by law and are necessary and proportionate to achieve one of the legitimate aims expressly enumerated in article 19(3) of the Covenant.”

“The General Assembly and the Human Rights Council have concluded that permissible restrictions on the Internet are the same as those offline.”

The communique says, “[t]he 2023 Joint Declaration on Media Freedom and Democracy, which the Special Rapporteur on freedom of opinion and expression published together with the regional mandates on freedom of expression, firmly stated that States should refrain from unduly interfering with the right to freedom of expression to enable media to fulfil their role and watchdog function in a democratic society.”

OSB

The communique notes that on 25 October 2023, the Minister of Public Security decided to retract the proposed Bill with a view to introducing a series of amendments. On 7 November 2023, the Supreme Court announced that the Online Safety Bill was not inconsistent with the constitution and could be passed by a simple majority following committee stage amendments on certain clauses.

It states that OSB lacks clear definitions of what speech is prohibited, outlines a broad range of online statements, and does not specify how the criterion of “known or believed by its maker to be incorrect” will be interpreted in practice. The law also does not clarify how the threshold for offences such as “wounding religious emotions” and making a false statement with the objective of violating the peace will be understood and implemented by law enforcement officials. These provisions appear vague and overly broad, potentially failing to meet the requirements of article 19 (3) of the ICCPR. 

The right to freedom of expression applies to all kinds of information and ideas, including political discourse, commentary on public affairs, discussion of human rights, journalism, cultural and artistic expression, and religious discourse, the communique says. The Reporters conclude that the proposed law may severely limit the scope of online expression and pose major barriers and threats to individuals, especially journalists, human rights defenders, and civil society organizations critical of the government.

“We further note that the bill seems to be directed at people living in Sri Lanka

and at the diaspora, with severe adverse effects on the freedom of expression of a very wide range of individuals.”

The Rapporteurs also state that they “have reservations that the broad surveillance, the identification and labelling of online accounts as “offenders” under this proposed law may be a violation of their right to privacy and freedom of expression, as outlined in articles 17 and 19 of the Covenant.”

The powers of the proposed Online Safety Commission “will enable it to remove online content, restrict and prohibit online access, and prosecute those individuals and organisations whom the Commission deems to be offenders…these broad powers may result in the arbitrary targeting of anyone who may express dissenting or minority opinions or may be critical of the government’s actions, including journalists, human rights defenders and political opponents.”

The Rapporteurs note that violation of the proposed legislation carries the threat of punitive fines and lengthy prison sentences and caution against the imposition of such apparent disproportionate sanctions, “given their significant chilling effect on freedom of expression”.

BRC Bill

This draft legislation proposes the establishment of a “Broadcast Media Authority”, aimed at implementing licensing procedures, regulating mass media and investigating possible wrongdoings by the media organisations. The proposed legislation would require every person or entity that provides a broadcasting service to register with a newly created Broadcasting Regulatory Commission (the Commission) within a period of 3 months from the date of commencement of the proposed Act. No person or entity shall be permitted to operate a broadcasting service in Sri Lanka except under the authority of a license issued by the Commission.

The Rapporteurs state that the Commission’s appointment process, if implemented in its current form, may give the executive the ability to punish, and/or deny licenses to media outlets that do not have a favourable view of the Government.

“[T]he proposed law appears to give extensive powers to the commission to order the blocking of content, in apparent absence of any meaningful judicial safeguards, which may restrict the free flow of information, in a manner incompatible with international standards on freedom of expression.”

The communique concluded that “the proposed legislation will give immense powers to both

newly established Commissions, and could be in violation of the basic principles of freedom of expression, peaceful assembly and association and the right to privacy. In the absence of adequate safeguards, these proposed Acts may be used to suppress dissenting voices, especially those of journalists, human rights defenders and civil society organisations and those who may be critical of the Government.”

The Rapporteurs urge that, in view of the general elections scheduled in 2024 and 2025, the Government should respect media freedom, independence and pluralism, in line with the provisions of article 19 of the ICCPR.