The Ministry of Mass Media is scheduled to begin stakeholder discussions on amending the Online Safety Act (OSA), while stakeholders maintain that the amendment bill published by the previous Government fails to address the fundamental issues with the act.
Ministry of Mass Media Additional Secretary – Development N.A.K.L. Wijenayake told The Sunday Morning that ministerial level discussions were underway regarding the amendment process.
The OSA, which previously came under the purview of the Ministry of Public Security, now also comes under the Ministry of Mass Media. A gazette released on 25 November 2024 demarcating subjects and functions under various ministries shows the OSA coming under both the Mass Media and Public Security Ministries, with the Online Safety Commission (OSC) coming under just the Ministry of Mass Media.
The OSC is yet to be established and is the institution through which the OSA will primarily be implemented. Both the act and the would-be commission have faced severe criticism, with an open letter by local and international organisations last year noting that the commission would not be independent of the executive and would have wide-ranging powers to restrict free speech.
“It was previously with the Ministry of Public Security and we only received it recently,” Wijenayake said.
History
The OSA was hurried through the legislative process at the end of 2023 without a broad consultation process to become the most controversial and criticised piece of legislation introduced by the previous Ranil Wickremesinghe-led administration.
After the bill was initially placed on the Order Paper of Parliament, 54 fundamental rights petitions challenged it in the Supreme Court. The apex court determined that 31 clauses in the bill had to be amended in order for it to be passed in Parliament by a simple majority.
Despite growing fears about the potential harm the law could cause to freedom of expression, Parliament debated the bill and passed it in January 2024. To pacify concerns, the former Government promised to bring in amendments.
Previous amendment bill
Ultimately, a bill to amend the OSA was published in August last year. The Ministry of Mass Media first plans to have a stakeholder discussion to decide whether the amendments will require another consultative process or to incorporate existing advice and suggestions into the already-published amendment bill.
The stakeholder discussion will involve journalists, women’s rights groups, children’s rights groups, representatives of technology companies, and Government institutions. “We will first speak with the Government institutions,” Wijenayake said.
Media analyst Nalaka Gunawardene, who was involved in the amendment process of the previous Government, told The Sunday Morning that although the amendment bill “may not go the full length,” it was a first attempt to mitigate some of the problems with the act.
It is still unclear whether the current Government will put forward the same amendment bill or draft new amendments. “There are those who think there should not be any act on the subject and others who think we should have some sort of regulation,” Gunawardene said.
President’s Counsel Jagath Wickramanayake, who was called in with Gunawardene, Data Protection Authority Director Jayantha Fernando, and a senior Police officer from the Legal Division of the Police to amend the OSA last year, called for the “complete repeal of the OSA”.
“If we are making amendments, then we would be making amendments to the existing law. This is not a perfect law even with the amendments. The best solution is to repeal the whole thing and bring in a new law which will be able to deal with the issues properly,” Wickramanayake said, speaking to The Sunday Morning.
However, he added: “In comparison to what we have in place, if the amendments can go through, the law will become a much better law.”
Digital rights activist Darshatha Gamage said the amendment bill, which was never debated in Parliament, as Parliament was dissolved and elections called shortly after it was published, failed to address the negative impacts of the act on Sri Lankans.
“It does not make a difference to the people, but they have removed intermediary liability,” he said.
Concerns over OSA
At the time the controversial law was being debated in Parliament in January 2024, the Asia Internet Coalition (AIC), consisting of tech giants such as Google and Meta, wrote to former Public Security Minister Tiran Alles, underscoring their concerns over various areas of the bill, including criminal liabilities they would face.
“The criminalisation of illegal content such as false statements is a disproportionate restriction on freedom of expression. The bill criminalises all forms of prohibited statements regardless of whether they are likely to result in harm and does not provide sufficient defence to individuals or intermediaries accused of the offence.
“Further, criminal penalties on intermediaries creates a hostile environment for business and would deter foreign direct investment. Therefore, criminal liability should be removed from the bill,” the letter stated.
In his policy statement to the public before the Presidential Election last year, President Anura Kumara Dissanayake promised to amend the OSA by removing restrictions on the freedom of expression – a stance reiterated by Minister of Foreign Affairs Vijitha Herath after the election.