- Lawyers and social media analysts criticise the proposed Online Safety Act for its restrictive, ambiguous, and ineffective nature in dealing with cyberspace threats
Online threats are a global, evolving issue, and countering them is a need of the hour. As has been shown by various countries, this endeavour requires innovative and effective approaches. However, Sri Lanka’s newest approach to dealing with online threats has come under fire for providing for restrictive, vague, and seemingly ineffective actions against those who commit offences under the proposed Online Safety Bill.
More importantly, a number of provisions contained in the Bill are viewed by many as an attempt to muzzle those who speak critically – especially of the Government – via online platforms. In this context, if passed, the Bill could have serious adverse impacts on the freedom of expression, and would repeat past instances where certain laws were enforced selectively against particular groups or persons based on questionable interpretations of vague laws.
This was underscored during an online forum organised by the Hashtag Generation (HG), during which the pros and cons of the proposed legislation were discussed by attorney-at-law (AAL) and Human Rights Commission of Sri Lanka (HRCSL) Commissioner Dr. Gehan Gunatilleke, AAL Ermiza Tegal, and HG’s Head of Social Media Analysis Prihesh Ratnayake.
They made these remarks in a context where the Government – amidst heavy criticism from a number of local and international parties against the Bill – remains determined to pass the Bill which was gazetted in September, allegedly to ensure safety on the cyberspace, while also denying allegations that it is aimed at curbing free speech, including dissent. While activists have also sought the judiciary’s support against the Bill, it was tabled in Parliament on Tuesday (3) by Public Security Minister Tiran Alles.
Questionable aspects
“It is not just about the text of the Bill that we need to focus on. We also need to look at the context of the Bill and the timing that it was presented,” Dr. Gunatilleke said, adding that that is because Sri Lanka has a wider context where existing laws with clear texts, and also legal provisions that have been formed in accordance with international benchmarks have been – and are being – misinterpreted and misapplied in various contexts. As an example, he pointed out section three of the International Covenant on Civil and Political Rights (ICCPR) Act, which focuses on “propagating war or advocating national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence.”
Raising concerns about the proposed Online Safety Commission – which the Bill proposes to establish, and empowers the President alone for that purpose – Dr. Gunatilleke added: “In terms of hiring and firing members of this Commission, their political independence is not necessarily guaranteed. You might have good appointees. But you might also have appointees that are politically compromised. That is, that you have a system where the Constitutional Council recommends appointments to independent commissions. Because of that problem, there is a question mark in terms of the possible politicisation of the Commission. The other problem with this Commission is that, despite possible politicisation, it exercises very far-reaching powers, including powers to issue notices and directives, among others, according to criteria that we don’t see in the Bill.”
In addition, he pointed out, as a serious concern, that these notices and directives are issued and decisions are made without affording the affected party an opportunity to be heard. Opining that people will not necessarily have the opportunity to plead their case before decisions that affect them will be made by the Commission, he stressed that this situation is a violation of the very basic rules of natural justice on which the Constitution and the legal system rely.
Dr. Gunatilleke further spoke about certain offences, including new ones mentioned in the Bill, which he said are “somewhat worrying” due to their broadness and vagueness. Pointing out an example, he said that a false statement that could be a threat to national security has been made an offence under clause 12 of the Bill. Noting that what poses a threat to national security – and how a false statement can pose a threat to national security – have been left open for interpretation, he raised concerns that in that context, Sri Lanka might have situations in which these particular offences can be misapplied to cover a broad range of events and activities.
In addition, there is a series of clauses in the Bill that replicates similar offences that are already found in the Penal Code, and the problem there, as per Dr. Gunatilleke, is that penalties that are being imposed for these offences are much higher under the Bill. The disrupting of a public religious assembly is already an offence under the Penal Code, whereas issuing or communicating a false statement that causes disruptions to a religious assembly held in public is also an offence under the Bill but attracts a penalty that is three times higher, he said. He questioned the rationality behind imposing penalties under the Bill.
Furthermore, he pointed out that the Bill contains an offence of cheating by personation when the same is already an offence in the Penal Code. However, a concerning difference between the two, as explained by Dr. Gunatilleke, is that while the offence under the Penal Code involves an element of cheating with the aim of taking action against those who pretend to be someone that they are not in order to cheat another, the offence mentioned in the Bill does not entail such an element. This could mean that under the Bill, it is possible to find a person guilty of a crime merely for personating, regardless of the intent of doing so and even if personation did not involve an act of cheating.
Freedom of expression
During the discussion, paying attention to the enforcement and practical aspects of the proposed law, Tegal noted that when there is this replication of offences where one can use the Penal Code, and also the Bill, which has a higher penalty, those who enforce the law, particularly the Police, will get to decide which law is appropriate to deal with such offences and who gets prosecuted under which law. This law comes in a context where laws have been selectively used in the past to target minority groups, activists, and political opponents, and therefore, the context is very important, especially when it comes to criminal laws, she said.
Tegal added: “The entire scheme of the Bill is about restricting the freedom of expression. The freedom of expression is guaranteed under Article 14 of the Constitution, and Article 15 has set out criteria on which that right can be curtailed or restricted by law. This is then going to be a law that comes in to curtail that broad right. Governments, individuals, and companies, all have to start from the basic premise that everyone has the freedom of expression. The starting point is the full freedom of expression. Thereafter, we carefully think of what the illegal act that we want to curtail or what the harm we want to address is, and create laws just enough to carve that harm out and to negate that illegal activity.”
However, going against the above rationale, the Bill contains a host of offences that refer to words, and those that have not been defined in the Bill itself. Highlighting one phrase that is often found in the Bill, i.e. “false statements”, Tegal explained that the definition provided in the Bill for false statements refers to instances where the maker of a statement believes it to be incorrect or untrue and intends to deceive or mislead another. She opined that when this offence is worded in that manner, there is a lot of leeway when deciding whether an offence has been committed. In addition, she pointed out the fact that in the Bill, false statements have been linked to threats to national security, public health, or public order, for which there are other laws in the country.
What is more, Tegal highlighted past instances where actions were taken selectively against several offences contained in the Bill, expressing concerns about the implementation of the Bill, if passed. She added that under the provisions of the Bill, which she said restricts the freedom of expression, fairly ordinary and legitimate conduct, and also, dissent and critique against Government activities – especially when they take place online – have a great potential to be targeted under this Bill.
“It creates a chilling effect, because those who use the Internet, those who create content for online sites, and those who facilitate others to access these online pages or chat forums, all of a sudden become worried about whether they are engaged in an activity that may attract these offences or whether they may be perceived by the person who is using this law as a suspect,” she added.