By Muhammad Aftab Alam
A review of Proposed Legislation in Pakistan and Sri Lanka
In September 2023, the Sri Lankan government introduced an Online Safety Bill to establish an “Online Safety Commission”, the purported objective being “to prevent the use of online accounts and inauthentic online accounts for prohibited purposes and to suppress the financing and other support of communication of false statements of fact.”
Similar attempts were made by the Federal Cabinet of Pakistan in July 2023 when it approved a Bill to constitute an E-Safety Authority, to regulate the establishment, registration and operation of Social Network Platforms (SNPs) throughout Pakistan.
The Bill in Pakistan was approved by the Federal Cabinet as part of a package of other Bills, including the Personal Data Protection Bill 2023, the Pakistan Electronic Media Regulatory Authority (Amendment) Bill 2023, the Official Secrets (Amendment) Bill 2023, and the Pakistan Army (Amendment) Bill 2023.
Many of these Bills were passed by the Parliament before the dissolution of the National Assembly on August 19. However, several stakeholders including the Pakistan Digital Editors Alliance (PDEA), Asia Internet Coalition (AIC), digital rights activists, and journalists expressed serious concern over Cabinet’s approval of the E-Safety Authority Bill.
In response, the government dropped the idea to enact the Bill.
The following is a quick overview of the Pakistani and Sri Lankan Bills.
Pakistan’s E-Safety Authority Bill 2023 claims to “promote online safety and prevent online harm.” The Bill proposes to “counter hate speech, hate crime, violence, fake news and other unlawful content on Social Network and to ensure the implementation and limitations enshrined in Article 19 of the Constitution [of Pakistan].”
This Bill grants exclusive powers to the Federal Government the power to establish an E-Safety Authority in Pakistan and appoint or remove its chairman and 12 members.
According to the Bill, the Authority shall regulate the establishment, registration, and operation of Social Network Platforms (SNPs) in Pakistan; regulate content on SNPs; block access to material that promotes, incites, instructs, and depicts abhorrent violent conduct; prescribe fines for the contravention of the provisions of the Act or rules and regulations; and refer matters and complaints related to offences to the concerned law enforcement agencies and authorities.
The Authority also shall have the power “to access to any device, any apparatus, data or any other material connected with such system, for the purpose of searching any information or data contained in or available to such device.”
The Bill empowers the Federal Government to establish Social Network Complaints Commission(s) or SNCCs to receive and decide on complaints against any aspect of content or expression shared by Social Network Registration Holder(s).
In this regard, the Federal Government can appoint Social Network Appellate Tribunals to deal with appeals against the decisions of the SNCCs. The decision of the Social Network Appellate Tribunals can, of course, be challenged in the High Court.
The Bill prohibits the establishment, operation or continuation of operation or activity of a SNP without registration with the Authority. It requires “online information and content delivery system such as web TV channels, YouTube channels (including vlogs), Netflix, Amazon Prime, Over The Top (OTT) Channels, etc.” to register as an SNP with the Authority.
The SNPs also cover or include social networking sites or other such content made available for viewing over the internet, any cloud-based content distribution service that permits a person to become a registered user, establish an account, or create a public profile for the purpose of allowing the user to post and share user-generated content on platforms like Twitter, Facebook, Snapchat, Instagram, and Tik Tok.
All registered SNPs are required NOT to air any “Prohibited Content” which includes, but is not limited to content against the Islamic values and the national ideology of Pakistan; derogatory remarks about any religion, sect, community; content likely to incite, aid, abet, glamorize or justify violence; and anything which has been banned for exhibition or distribution under the applicable laws or by any Court possessing competent jurisdiction.
The Bill proposes fines up to PKR 2 million for an SNP operator who violates or abets the violation of any of the provisions of the Act or Rules or Regulations therein. In case of repetition of the alleged violation, the person can be put behind bars for three years.
Moreover, the Bill proposes imprisonment of five years and fine up to PKR 3 million if an alleged violation is committed by a person who does not hold a registration to operate a Social Network Platform in the country.
Sri Lanka’s Online Safety Bill 2023 seems to imitate what had been proposed in Pakistan in August 2023. The Sri Lankan Bill aims 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; prohibited purposes; to suppress the financing and other support of communication of false statements of fact.”
The Bill proposes the establishment of an Online Safety Commission to “make provisions to prohibit online communication of certain statements of fact in Sri Lanka and implement above-referred purposes of the Bill. The President of Sri Lanka shall have discretionary powers to appoint and remove its chairman and members.
The Commission purports to have the mandate to register the websites providing social media platforms to the end users in Sri Lanka. It will be able to issue Codes of Practice for service providers and internet intermediaries who provide internet-based communication services to end users in Sri Lanka.
The Bill defines a 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.” The Commission shall have powers to stop the communication of such statements.
The Bill declares a variety of statements as “prohibited statements.” These include statements “posing” as a threat to national security, public health, or public order, or those which promote feelings of ill-will and hostility between different classes of people; statements which amount to contempt of court; statements which provoke any individual through intentional insults via the communication of “false statements”; and so on.
The Commission shall operate as a complaint authority against “prohibited statements” and shall be authorized to stop all communication of such statements. Furthermore, the Commission can issue notices to the internet access service provider or internet intermediary: disable access by end users in Sri Lanka to such prohibited statement; or remove such prohibited statement from such online locations.
The Bill also authorizes the Magistrate’s Court to issue order upon a petition to prevent circulation of a “prohibited statement.” Non-compliance of orders of the Court can result in fine up to LKR 10 million, depending upon the nature of the “offence.”
Under the Bill, the Commission can declare any website, webpage, chatroom or forum, or any other medium that can be seen, heard, or otherwise perceived by means of the internet as a “Declared Online Location.” Non-compliance with the orders under the Bill can put the owner or operator of such website, webpage, chatroom, or so on behind bars for a period up to six years, along with a fine of up to LKR 10 million.
A perusal of the proposed Bills shows that the structure of proposed laws varies in some respects between the two. However, both have many similarities in the intent and substance. The Bills empower the President in Sri Lanka and the Federal Government in Pakistan to appoint and remove members of the Commission or Authority.
The purposes or objectives of the Bills are overbroad, vague, and misleading. If enacted, the Commission (in Sri Lanka) or Authority (in Pakistan) will have extraordinary powers to regulate, block, and remove online content.
Such unbridled powers will result in online censorship and the curbing of political dissent. This is evident from the fact that the PTA in Pakistan blocked more than a million websites and webpages between 2016 and 2020 under Section 37 of the Prevention of Electronic Crimes Act (PECA) 2016.
Prescribing criminal penalties against online free speech is highly problematic. In Pakistan, more than 25 journalists have faced criminal charges under PECA due to social media posts and other communications since its enactment. There is no doubt that deliberations and consultations are needed to make these Bills more acceptable and practical.
Muhammad Aftab Alam is a media law expert based in Islamabad. He can be reached via X (formerly Twitter) on @aftabalam_77.
Factum is an Asia Pacific-focused think tank on International Relations, Tech Cooperation, and Strategic Communications accessible via www.factum.lk.
The views expressed here are the author’s own and do not necessarily reflect the organization’s.