The “Online Safety” Bill was published in the Gazette on 15 September 2023, and placed on the order paper of Parliament and tabled on 3 October.
The Bill provides for, inter alia, to make provisions: to prohibit certain online communications, for the prevention of the use of online accounts and inauthentic accounts for prohibited purposes, to identify and declare online locations for prohibited purposes, and for the suppression of financing and other support for false statements and matters connected therewith.
The Bill demonstrates serious inconsistencies with the Articles of the Constitution, and especially encroaches upon the sovereignty of the people and the judicial power of the people provided for in terms of Articles 3 and 4 of the Constitution (specifically including Article 4[c] on the latter). The overly broad and vague provisions contained in the Bill carry far-reaching implications on the fundamental rights of the citizens guaranteed in terms of Articles 10 (the freedom of thought, conscience, and religion) and 14(1)(a) (freedom of speech and expression including publication) and 14(1)(g) (the freedom to engage, by oneself or with others, in any lawful occupation, profession, trade, business, or enterprise).
The Bill, in essence, undermines and suppresses the freedom of thought and conscience of the people, and the freedom of the people to speech and expression. The Bill, in whole, suppresses the wide dissemination of information which is of pivotal importance to the functioning and sustenance of a vibrant democracy. The importance of the wide dissemination of information to a functioning democracy was highlighted by Chief Justice (CJ) Suppiah Sharvananda in K. Joseph Perera alias Bruten Perera and Others vs. The Attorney General and Others (Supreme Court [SC] 107/86, 108/86, and 109/86) (1992) (heard before Sharvananda CJ, and Justice [J.] and President’s Counsel (PC) Raja Sirimevan Wanasundera, and Justices E.A.D. Atukorale, Lucian Hector de Alwis, and O.S.M. Seneviratne).
The Commission and its powers
Part I of the Bill provides for the Online Safety Commission (hereinafter referred to as the Commission), wherein, in terms of Clause 5 of the Bill, the five members of the Commission are appointed directly by the President. Clause 8(2) of the Bill provides that the President shall also appoint the Chairperson of the Commission, and that in terms of Clause 7(2), the President has been vested with the powers to remove any member from office. The aforesaid nature of the appointment of the members of the Commission is left to the absolute discretion of the President, and no recommendations are made from the Constitutional Council, as in the case of other important appointments of the State.
The above circumstances concerning the appointment of the members of the Commission illustrates a serious lack of independence and more room for abuse of its powers. Clause 11 of the Bill provides for vesting very broad and vague powers in the Commission, which equips it, in terms of Clause 26, with powers akin to a judicial authority – enabling it to decide on such technical and subjective matters such as what constitutes “prohibited” or “false” statements – and carries penal consequences in terms of Clause 25, if the directions of the Commission are not complied with.
The manifest lack of independence on the part of the Commission and provided by Clauses 5, 8(2), and 7(2), taken together, constitute an inconsistency with Articles 3, 4(d), 10, 11 (freedom from torture or cruel, inhuman, or degrading treatment or punishment), 12(1) (the right to equality before the law and equal protection of the law and non-discrimination), 14(1)(a), and 14(1)(g) of the Constitution, and requires to be passed by a special majority of Parliament and be approved by the people at a referendum in terms of Articles 83 and 84(2) of the Constitution. Clauses 11 and 25 of the Bill – which empower the Commission with vast and overwhelming powers and the power to carry out penal sanctions – are clearly an encroachment of the judicial power of the people, and hence, constitute a violation of Articles 3 and 4 of the Constitution, rendering the said Clauses to be passed by a special majority of Parliament and be approved by the people at a referendum in terms of Articles 83 and 84(2) of the Constitution.
The SC’s determination in the Sri Lanka Broadcasting Authority Bill (Special Determination No. 01/1997-15/1997) (heard before G.P.S. de Silva CJ, and Dr. Anthony Ranjit Bevis Amerasinghe J., and Pathmanathan Ramanathan J.) which is as follows, clearly applies to the Commission, and applies with greater vigour, highlighting its lack of independence and room for abuse: “Having regard to the composition of the Board of Directors of the Authority, the lack of security of tenure in office either of the Chairperson or of the appointed members, and having regard to the power of the Minister to give directions which the Authority is obliged to follow, the Authority, it was said by the learned counsel for one of the petitioners is, ‘no more than an arm of the Government’. We agree that the Authority lacks the independence required of a body entrusted with the regulation of the electronic media which, it is acknowledged on all hands, is the most potent means of influencing thought.”
Prohibited statements
In the realm of the freedom of speech and expression, it is an internationally accepted standard that the limitation for speech and expression ought only to be on the express and definite grounds of national security, public health, etc., and that such restriction ought to be objectively identifiable. The subject Bill, in terms of Part III, provides for extremely broad and vague definitions for prohibited statements and/or offences as follows: Clauses 14 – Wantonly giving provocation by false statements to riot, 16 – Communication of false statement with deliberate intent to wound religious feelings, and 17 – Outraging religious feelings by communicating false statements.
Clauses 12 to 24 of the Bill provide for overly broad and vague definitions of statements and publications, and effectively circumscribe the freedoms of persons to express their thoughts, expressions, and speech, which are guaranteed and safeguarded in terms of the universal standards of freedom and in terms of our Constitution.
The overly broad and vague definitions of prohibited statements and/or offences effectively leave room for much abuse, and would leave citizens at the hands of arbitrariness, discretion, and the iron fist of authorities, as experienced in the implementation of the International Covenant on Civil and Political Rights Act, No. 56 of 2007, as amended, and the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979, as amended.
Clauses 12 to 24, in totality, amount to a clear inconsistency and a violation of Articles 3, 4, 10, 11, 12(1), 14(1)(a), and 14(1)(g) of the Constitution, and hence, is required to be passed by a special majority in the Parliament and by the people at a referendum, in terms of Articles 83 and 84(2) of the Constitution.
(Arulingam is an attorney-at-law, while Gurusinghe is a trade unionist)
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The views and opinions expressed in this column are those of the authors, and do not necessarily reflect those of this publication.