By Jagath Liyanarachchi
Background
Keheliya Rambukwella, Minister of Mass Media and Ali Sabry, President’s Counsel, Minister of Justice presented a cabinet paper on April 1, 2022, seeking permission from the Cabinet of Ministers to present a draft of a bill to “protect society from the harm caused by false propaganda on the internet.”
This had been approved by the Cabinet of Ministers on April 19, 2021. Thereafter, on or about February 21, 2022, the Minister of Public Security had been handed over the responsibility of acting further on the draft bill.
As such, Tiran Alles, the Minister of Public Security, presented to the Cabinet of Ministers the cabinet paper bearing No. 23/1025/626/011 alongside the draft bill prepared by the Legal Draftsman to “protect society from the harm caused by false propaganda on the internet”, and sought approval for the same.
The Cabinet of Ministers granted its policy-wise approval on May 30, 2023. The Cabinet of Ministers decided that the Online Safety Bill could be presented in Parliament after the Electronic Broadcast Regulatory Authority Bill is tabled in parliament for consideration.
When the Cabinet was convened on August 8, 2023, it was informed that the Online Safety Bill could be presented to the Cabinet of Ministers for approval. Accordingly, Tiran Alles, the Minister of Public Security presented the Online Safety Bill under Cabinet paper dated August 29, 2023 bearing No. 01/10 (O.S.B /2022 (memorandum No. 34/2023), and sought approval from the Cabinet of Ministers for the said Bill, and for it to be published in the Gazette and to be presented to the Parliament.
The Cabinet of Ministers approved the said memorandum on September 4, 2023, and the Online Safety Bill was published in the government gazette on September 18, 2023, as directed by the Minister of Public Security. Thereafter, Tiran Alles, the Minister of Public Security presented the said bill to the Parliament for its first reading on October 23, 2023.
Public Protests
When the bill was published in the Gazette, several parties launched protests against it. Thse included civil society organizations, trade unions, professionals in the Information Technology sector, entrepreneurs, and the Bar Association of Sri Lanka and other lawyers’ collectives too voiced their protest.
Also, Asian Internet Coalition, which consists of 13 internet service providers, had shown their displeasure by way of a letter addressed to the Minister of Public Security.
Supreme Court Determination
As provided for in Article 121 of the Constitution, the citizens of the country have the right to question the constitutionality of a bill, by way of a petition to the Supreme Court, within 14 days from the date of such bill being included in the Order paper of the Parliament. Accordingly, 47 petitions were filed in the Supreme Court against this Bill.
At the commencement of supporting the petitions, the Deputy Solicitor General representing the Attorney General tendered a lengthy document to Court and stated that the government is ready to incorporate amendments at the committee stage of the Bill. As per the said document, it was evident that the government was ready to amend 30 sections of the Bill. (The draft Bill consisted of 52 sections).
The petitions were supported on October 18 and 19, 2023, and the Speaker of the Parliament presented the determination of the Supreme Court to the Parliament on 07th November, 2023.
According to the said determination, if sections 3, 5, 7, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 36, 37, 42, 45, 53 and 56 of the draft bill were to be passed as they are, provisions of Article 84(2) of the Constitution shall be invoked, and as such, it was to be passed by a 2/3rd special majority including the MPs who are not present.
However, if the said sections are amended at the committee stage in line with the amendments proposed by the Supreme Court in its determination, this bill could be passed with a simple majority. It was further stated in the determination that the rest of the provisions of the bill were not inconsistent with the Constitution.
Accordingly, if the draft bill was to be passed by a simple majority, amendments as recommended by the Supreme Court for 32 sections were to be incorporated at the committee stage.
Adoption of the Draft Bill
The debate on the draft bill was held on January 23 and 24, 2024. Before commencing the debate, the Opposition brought forward an objection stating that although this bill has been forwarded to the relevant Sectoral Oversight Committee according to the standing orders of the Parliament, no proper report has been submitted to the Parliament yet.
Therefore, the Opposition objected against the commencement of the debate on this bill. They further requested to not hold the debate on the bill, since the Attorney General has not agreed to incorporate the amendments recommended by the Expert committee appointed by the subject Minister.
Thereafter, a vote was held to decide whether the bill should be taken up for debate or not, and 83 votes were cast in favour of the decision to hold the debate, against which 50 votes were casted. Henceforth, the debate commenced. Another vote was held at the end of the second reading of the bill, for which 108 votes were cast in favour of the bill and 62 against it.
When the government incorporated amendments during the committee stage, the opposition took up the objection that such amendments were not in line with the Supreme Court determination. However, although Vijitha Herath MP asked for a vote at the end of the third reading, the Speaker stated that the allocated time to request for a vote has come to an end, and therefore he will consider it to be marking the enactment of the draft bill. Hence, the third reading was passed without a vote.
Objectives of the Act
Section 3 of the Act sets out the objectives of the Act as follows:
To protect persons against harm caused by communication of prohibited statements online;
To ensure protection from communication of statements in contempt of court or prejudicial to the maintenance of the authority and impartiality of the judiciary;
To introduce measures to detect, prevent and safeguard against the misuses of online accounts and bots to commit offences under this Act; and
To prevent the financing, promotion and other support of online locations which repeatedly communicate prohibited statements in Sri Lanka, by way of online account or through an online location.
Offences Under the Act
Several classes of offences have been introduced under the Act.
Communication of prohibited statements online.
Committing child abuse by way of an online statement.
Making bots to commit an offence.
Offences pertaining to declared online locations.
Prohibited Statements
The Act has identified statements which are prohibited publishing online, and publishing of such statements has been identified as a criminal offence. The said offences are included in Sections 12 to 20 of the Act.
Posing a threat to national security, public health or public order or promoting feelings of ill-will and hostility between different classes of people, by communicating a false statement. Being convicted of this offence will make a person liable for imprisonment for a term not exceeding five years or for a fine not exceeding five hundred thousand rupees or both. (Section 12).
Communication of a false statement which amounts to contempt of court under any relevant written law. The provisions of said relevant written laws shall, mutatis mutandis, apply in sentencing such person. (Section 13).
Any person, by communicating a false statement online, gives provocation to any person to cause the offence of rioting, shall be liable (a) for an imprisonment up to 5 years or to a fine up to Rs. 500,000/- when rioting has been committed; OR (b) for an imprisonment up to 3 years or to a fine up to Rs. 300,000/- when rioting has not been committed (Section 14).
Causing disturbance to any assembly of religious ceremony by communicating a false statement online. On conviction, such a person shall be liable to imprisonment for a term not exceeding three years, or to a fine not exceeding three hundred thousand rupees, or to both (Section 15)
Communicating a false statement online, with deliberate and malicious intention of outraging the religious feelings. On conviction, such a person shall be liable to imprisonment for a term not exceeding three years, or to a fine not exceeding three hundred thousand rupees or to both. (Section 16).
Committing the offence of online cheating by communicating a false statement to any person by way of an online account or through an online location. On conviction, such a person shall be liable to imprisonment for a term not exceeding seven years, or to a fine not exceeding seven hundred thousand rupees or to both. (Section 17).
Committing the offence of online cheating by personation, by means of an online account. On conviction, such a person shall be liable to imprisonment for a term which may extend to three years, or to a fine not exceeding three hundred thousand rupees or to both (Section 18).
Circulating false statement online, with intent to cause mutiny or an offence against the State. On conviction, such a person shall be liable to imprisonment for a term not exceeding seven years, or to a fine not exceeding seven hundred thousand rupees or to both (Section 19).
Communicating willful statements with intention to cause harassment. On conviction, such a person shall be liable to imprisonment for a term not exceeding five years, or to a fine not exceeding five hundred thousand rupees or to both (Section 20).
Committing Child Abuse Online
Any person, who, by way of an online account or through an online location, commits child abuse, i.e., which constitutes an offence within the meaning of sections 286A, 288, 288A, 288B, 308A, 360A, 360B, 360C, 363, 364A, 365 of the Penal Code, and publishes any photograph, audio or video of abusive or pornographic nature relating to a child. (Section 21)
Making or Altering Bots to Commit an Offence
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. (Section 22)
Magistrate’s Courts are empowered to inquire into cases filed against these offences.
Measures to be Taken by the Commission with regard to Prohibited Statements (Section 23)
A person aggrieved by the communication of a prohibited statement may make a complaint providing information pertaining to such communication to the Commission. The Commission shall carry out investigations through the officers of the Commission, and upon being satisfied that sufficient material exists to show that a prohibited statement is communicated, it may issue notice to the person who communicated such prohibited statement to take measures to prevent the circulation of such prohibited statement.
A person to whom such notice has been issued shall comply with such notice within 24 hours. Where any person fails to comply with such notice, the Commission shall issue a notice to the internet service provider or internet intermediary on whose online location such prohibited statement has been communicated –
To disable access by the end users in Sri Lanka to such prohibited statement; or
To remove such prohibited statement from such online location.
When a person or an internet service provider or internet intermediary, as the case may be, fails to act in accordance with the above provisions, the Commission may apply to the Magistrate’s Court by way of petition and affidavit to obtain an order directing such person or internet service provider or internet intermediary to comply with such provisions.
Applying for a Court Order to Prevent Circulation of Prohibited Statements (Section 24)
Any person 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.
Upon considering such application, the Magistrate may issue a conditional order to such person or the internet service provider or internet intermediary on whose online location such prohibited statement has been communicated.
Declared Online Locations
The Commission may declare in a Gazette notification an online location as a “declared online location”, if three different prohibited statements have been communicated to the end users in Sri Lanka on such online location in respect of which conditional orders were made absolute by the Magistrate under section 24, and 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 (An online location means 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).
If any owner or operator of a declared online location fails to comply with the notice, the Commission or any person authorized by the Commission may apply to the Magistrate for an order directing owner or operator to disable access by the end users in Sri Lanka to such declared online location or to communicate to all end users in Sri Lanka who access such declared online location, a notice declaring that the online location is the subject of a declaration. Such persons, however, have the right to show cause as to why the conditional order may be not made absolute, and the Court may proceed to make such Order absolute or otherwise, based on the facts and circumstances of the case.
Where the owner or operator of a declared online location fails to comply with such order, such owner or operator of a declared online location commits an offence and shall on conviction be liable to imprisonment for a term not exceeding six years or to a fine not exceeding ten million rupees. (Section 28)
An internet service provider and/or an internet intermediary must take reasonable steps to ensure that any paid content is not communicated in Sri Lanka on the declared online location, nor such declared online location is promoted. Receiving any payment from such an online location is also prohibited. A person who fails to comply with the said provisions commits an offence and shall on conviction by a competent Magistrate’s Court be liable to imprisonment for a term not exceeding seven years or to a fine not exceeding ten million rupees, which are empowered to do so. (Section 29)
Any person soliciting, receiving or agreeing to receive any financial or other material benefit as an inducement or reward for operating a declared online location commits an offence. (Section 30)
A person expending or applying any property to help or promote the communication of prohibited statements to the end users in Sri Lanka on a declared online location commits an offence. (Section 31)
Abatement Of Fake Online Accounts And Coordinated Fake Behaviour
The Commission is empowered to notify an internet intermediary to abate fake online accounts and coordinate fake behaviour. Also, Section 18 of the Act cites that maintaining such fake online accounts is an offence punishable by imprisonment.
Registration Of Social Media Platforms
Section 11(j) of the Act cites that the websites providing social media platforms to the end users in Sri Lanka should be registered by the Commission in such manner as may be specified by rules made under this Act.
Online Safety Commission
This Commission consists of 5 members, who are appointed by the President, upon receiving approval by the Constitutional Council. The tenure of members of the Commission is 3 years.
The President has the power to remove any member citing reasons, with the approval of the Constitutional Council, after holding an investigation. (Section 7)
Powers and Functions of the Commission (Section 11)
To issue directives to persons, internet 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;
To issue notices to persons who communicate prohibited statements, to stop the communication of such statements;
To issue notices to persons who issue communications, internet service providers and internet intermediaries;
To register the websites providing social media platforms;
To introduce codes of practice for social media platforms;
To issue notices to any internet service provider or internet intermediary to disable access to an online location which contains a prohibited statement;
Challenges To The Legitimacy Of The Act
The drafting of the bill was extremely confidential, and even a member of the drafting committee resigned midway, after showing his protest.
Also, no stakeholder has been consulted when preparing this draft bill.
Initially, preparing the draft bill was under the purview of the Ministry of Justice, and then it was suddenly handed over to the Ministry of Public Security. The Information Officer of the Ministry of Public Security has stated that such handing over was done without any note or memo in writing.
When the draft bill was published in the Gazette, civil societies collectively requested the subject Minister to reevaluate the draft bill, but he paid no attention or consideration to such request.
Before supporting the Applications before the Supreme Court, the Attorney General tendered a document to Court and informed that the government expects to incorporate amendments to 30 sections of the bill during the committee stage. Expected amendments to 30 sections of the bill out of 56 overall clearly signify the existence of serious errors in the bill.
51 petitions were filed at the Supreme Court against this bill, which marked the highest number of petitions against a single draft bill and signifies the extent of protest from the public.
As per the Supreme Court determination, if the bill is to be passed by a simple majority, 32 sections were to be amended. As such, the Supreme Court ordered to amend more than half of the bill during committee stage.
However, some amendments recommended to be incorporated to the bill by the Supreme Court were not incorporated at the committee stage in the Parliament.
The Leader of the Opposition stated in a public meeting that 9 amendments recommended by the Supreme Court to be incorporated to the bill were left out, hence the Opposition is intending to present a No Confidence Motion against the Speaker.
Although the bill was directed to a Sectoral Oversight Committee as per the standing orders of the Parliament, since there was no proper report forwarded by them, the Opposition argues that holding the debate is unlawful.
The opposition alleges that although Vijitha Herath MP asked for a vote at the end of the third reading, the Speaker proceeded to adopt the bill into legislation stating that the allocated time to request for a vote has come to an end.
After the vote was concluded, many civil society organizations collectively requested the Speaker to not certify an Act which had not incorporated amendments as recommended by the Supreme Court.
United Nations Human Rights Council, through a message posted on X, stated that this Act will have a negative impact on the rights of Sri Lankans including their right to express.
Impact On Rights To Speech And Expression
When persons making certain statements are informed to stop publicizing their statements consequent to a direction / order pertaining to prohibited statements under the Act is made by the said non-independent commission, Presumption of Innocence is challenged.
Also, there is a possibility that social media activists will be afraid to express themselves when a non-independent commission is vested with the authority to make binding orders.
Decisions of a non-independent commission could be politically-motivated, hence it will obstruct the right of citizens to freely express themselves.
The offences pertaining to prohibited statements under this act are not definite and leaves room for broad interpretations, which imposes an unnecessary limit on the right to express.
As the offence termed ‘Prohibited Statements’ has been given room for a very broad interpretation, directives of the commission could be issued against creators who publish creative communication content online.
Especially, considering the gravity, seriousness and onerous nature in deciding the truthfulness or the lack of it of a particular statement, as legal measures will be taken even against publications that were made in good faith, opportunities to express will be vehemently restricted.
As there is a condition that Social Media platforms have to be registered, any social media platform that does not obey such condition could leave Sri Lanka, there is a risk that opportunities of the citizens to express will be further curtailed.
Also, as internet service providers and social media platforms could be criminally responsible under this act, it will prompt such ventures to leave the Sri Lankan market, and there is a risk of expression of opinions on social media being limited or rather coming to a complete stop.
Internet service providers leaving the Sri Lankan market will be extremely detrimental and prejudicial to those who are engaged in online businesses and marketing.
As some bot activity carried on by foreign companies pertaining to Sri Lanka cannot be stopped due to technical reasons, only citizens residing in Sri Lanka can be held responsible for such offences.
When shedding light on how Section 3 of the ICCPR Act and Section 120 of the Penal Code have been (mis)used by successive governments, it is most pertinent to note that there is a huge risk for the provisions proposed by this act being used to oppress persons with opposing ideologies.
Positives in the Bill / Act
All offences under the act have been classified as Non-Cognizable Offences i.e., any person charged with an offence under this act could not be arrested without a warrant.
All offences under the act have been classified as bailable.
Jagath Liyanarachchi is an Attorney-at-Law who can be reached at jagathliyanarachchi@gmail.com.
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.