Despite the Government proceeding with the Online Safety Act in the face of strong opposition, stakeholders from all corners have called for corrective action, pointing to significant lapses in the act. 

Amidst mounting criticism from stakeholders against the recently-enacted Online Safety Act, the Government announced that it was already in the process of rolling out fresh amendments to be incorporated into the act. 

Speaking to The Sunday Morning on Wednesday (7), Ministry of Public Security Secretary Viyani Gunathilaka said: “Since the proposals of the Asia Internet Coalition (AIC) and stakeholders in the field were not included, we are planning to include proposals that have been formulated via discussions with them as amendments.”

He stressed that the act would be sent to Parliament again as an amendment act and that they hoped to complete the amendments within a month. 

The AIC previously said that it had not been privy to proposed amendments to the bill, emphasising that the bill was “unworkable and would undermine potential growth and Foreign Direct Investment into Sri Lanka’s digital economy”. 

‘A deliberate violation’

As noted by stakeholders, the act contains several lapses. For instance, Tamil National Alliance (TNA) MP M.A. Sumanthiran claimed that 13 amendments proposed by the Supreme Court had not been included when the bill was taken up at the committee stage. 

Sumanthiran, who denounced the act as  a “draconian piece” of legislation, told The Sunday Morning that the suggested amendments by an expert committee had been disregarded, although at the time the Minister had assured that the amendments would be brought in after the law was passed. He therefore stressed that the Supreme Court determination had been deliberately breached. 

“We said that there was no purpose in bringing amendments after the law was passed and to instead bring in these amendments and pass a composite law properly, which the Opposition would also support. However, they were in a hurry to get it passed, so they knowingly did this and are now talking about bringing an amendment.”

“Out of the 13 items I pointed out at the committee stage, about nine matters have not been included. The act that has been signed into law contravenes the Supreme Court determination on nine issues,” he said. 

“Article 123(4) of the Constitution says that Parliament shall give effect to the determination of the Supreme Court, which has not been done here. This is the first time such a thing has ever happened. It is not as though it went unnoticed; before the amendments were made, I brought it to the notice of Parliament. Therefore, the Constitution has knowingly been violated in this instance.”

Addressing the new amendments to be brought to the act by the Public Security Ministry, he said: “Obviously, they realised that they have violated the Constitution, so now they want to bring in amendments. But that’s wrong; the Speaker shouldn’t have signed it. Even before he signed it, I brought it to his notice and sent the document all over again by email. They disregarded all that and continued to sign it into law.”

Civil society organisations too have expressed strong disapproval regarding the passage of the Online Safety Act, with Transparency International Sri Lanka (TISL) saying that it was “appalled by the outrageous conduct of the Government, Parliament, Attorney General, and the Speaker in signing off on a version of the Online Safety Act that does not contain several of the amendments required by the Supreme Court in its determination on the bill”.

Strongly condemning this as an “unprecedented abuse of power by the legislature,” TISL has called for immediate corrective action. 

Moreover, the Human Rights Commission of Sri Lanka (HRCSL) observed that sections and omissions in the act appeared to be non-compliant with the Supreme Court’s determination on the Online Safety Bill. It further stated that this would have required that the Online Safety Bill be enacted only with a special majority in Parliament and that the “failure to ensure full compliance with the court’s determination may give occasion to serious concerns over whether the act, in its current form, received the requisite number of votes in Parliament”. 

Changed/missing provisions in act

Legal observers have noted that the final form of the Online Safety Act contains omissions which will render it inconsistent with the Supreme Court determination. 

Attorney-at-Law Dr. Gehan Gunatilleke said: “According to my reading of the published version of the act and the Supreme Court’s determination, around six amendments required by the Supreme Court appear to have been missed. That is just what I observed. There could be more.” 

He added: “If amendments required by the Supreme Court have been omitted in the act, it remains inconsistent with the court’s determination.”

Addressing any changes in the act from the provisions in the bill, he said: “The new Section 27 of the act, which deals with exemptions, is more problematic than the original Section 31 of the bill. That is because the new provision has made all exemptions subject to the requirement that the owner or service provider takes the impugned material down within six months, or that the material was uploaded or interfered with by a third party. This proviso to the exemptions in the final act is more stringent than the original provision in the bill. I suspect this is due to a drafting error, rather than being a deliberate change.”

Meanwhile, Jagath Wickramanayake, PC said: “There were a few things that they have missed out and I believe it is now being brought to the notice of the Minister, who is taking steps to amend it.”

Commenting on the constitutionality of the new act, he said: “The problem is, we don’t have the post-review system of legislation here. Once an act is passed by Parliament, even if it is not 100% in compliance with the Supreme Court determination, there is no provision in the Constitution to say that the law is not valid. Accordingly, there is a practical issue there,” he said.

He further noted that there had been a crucial change in the act from the provisions of the bill. “Perhaps due to some oversight, one very vital provision has been missed out,” he said, explaining: “The bill had a provision where, when you get the services of an expert, they cannot go into the house of the citizen being investigated without obtaining a warrant from court. However, when the act came out, this provision had not been included. It will have to come by way of an amendment immediately.”

Addressing the implications of this provision, he said: “The experts are not Police officers, but outside people whose services will be hired by the commission for the purpose of investigation.” 

For example, the commission may require experts to examine a computer or an online location, since the commission itself may not possess this expertise. Accordingly, this expert will require certain powers to examine another individual’s computer, for which the authority will come from the warrant issued by court. “This is a very important provision that they have missed in the act,” he stressed.

Wickramanayake also noted that several of the 13 amendments pointed out by MP Sumanthiran had not been included in the final act. He however remarked that one of the amendments, which excluded services such as with MMS, SMS, etc. from the operation of this act as suggested by the Supreme Court, had now been included in the act after not being included in the committee stage document. 

Noting that there were still significant lapses in the act, he said: “The Supreme Court was particularly concerned about keeping the commission independent, but one provision was introduced subsequent to the Supreme Court determination, giving powers to the President without any intervention or without any consultative process or consultation with the Constitutional Council to suspend other commissioners. Should there be any investigation or inquiry held against any commissioner, during the pendency of that inquiry, the president can suspend the commissioner. However, in the new provision added, it does not refer to the Constitutional Council.”

He expressed the belief that this would also be corrected by way of an amendment. “The SC determination dealt with many things and went into detail of the provisions of the bill, so what came out finally is much better than what it was,” he said, noting that while what emerged in the form of the act following the Supreme Court determination was improvement on the bill, certain amendments were still required. 

Impact and impracticalities 

Stakeholders have consistently raised concerns over the adverse impact of the act on the economy, with the AIC noting that it risked harming the growth of Sri Lanka, which had significant potential given the country’s young and digitally-savvy population.

“Legislation that is overly broad, ambiguous, and unclear risks government overreach and misuse and potentially leads to unintended and adverse consequences that might make people less safe online, stifle free expression, slow innovation, and impact future business opportunities and investments in Sri Lanka,” the AIC said.

Wickramanayake, while stressing on the need for a proper regulatory mechanism, noted that prior to introducing legislation such as this, a proper consultative process was required with all stakeholders, which had been lacking in this piece of legislation, leading to the present state of the act. 

“There is a provision in the act which criminalises having an online account under a different identity. Such provisions are not healthy for a democracy,” he observed. 

He pointed out that in the case of a whistleblower who maintained an account under a different identity, although they would be doing everything legally, merely having an account under a different name would constitute an offence under the law. 

He further noted that any provisions also had to be practical, especially in a context such as Sri Lanka. “A provision similar to what is in Singaporean law will not suit us, since the world will not treat Singapore and Sri Lanka the same way.”

“If you want to hold a company like Google responsible for something, if they are not going to comply with it, what is the purpose of the law? Therefore, there needs to be a proper mechanism acceptable to such entities as well, where they will comply with it.”

He further pointed out that provisions such as those criminalising online accounts under different identities would pose a significant impact for the digital economy, observing that the social media marketing ecosystem would be curtailed, which is significant in an environment where internet platforms stimulate employment and entrepreneurship, notably for SMEs.