• Asia Internet Coalition writes to Alles on balancing user safety with fostering digital innovation 

Noting that the proposed Online Safety Bill (OSB) will really hamper the freedom of expression of the people and may be used to suppress dissent against the Government, the Bar Association of Sri Lanka (BASL) noted that it has initiated discussions and communications regarding the same which involve educating its members as well as the civil society.

Regarding the concerns surrounding the controversial OSB, the BASL President, President’s Counsel Kaushalya Nawaratne told The Daily Morning that while people should certainly not abuse the freedom that is available to them, there should also not be powers under the guise of legislation that could be abused.

He made these remarks in a context where opposition against the OSB is on the rise. Joining the parties that have conveyed opposition against the Bill, the Asia Internet Coalition (AIC) recently expressed concerns about and urged extensive revisions to the Bill or alternatively the overhaul of the controversial Bill, which the Sri Lankan Government is considering enacting. The AIC added that more comprehensive and meaningful consultation is necessary to address the complexities and nuances associated with the said Bill.

The industry association, which seeks to promote the understanding and resolution of Internet policy issues in the Asia-Pacific region and represents leading global tech companies, said this in a letter addressed to Public Security Minister Tiran Alles. 

“It is crucial to ensure that the Bill is not only effective but also balanced, proportionate and practical in its scope and approach. The proposed legislation, in its present form, poses significant challenges that, if not addressed comprehensively, could undermine the potential growth of Sri Lanka's digital economy,” the letter read, pointing out several areas of concern ranging from regulatory independence and extraterritorial application to the overbroad definition of intermediaries, ambiguous terminology defining prohibited statements, and divergence from international human rights and best practice standards, among others. The letter raised concerns about the broad and ambiguous definition of prohibited statements, the duplication of existing laws, the overboard definition of intermediaries, criminal liability, intermediary liability, fixed turnaround times, due process rights and procedural safeguards, user data and systems’ access, extraterritorial application, the independence and powers of the OSB, registration with the Online Safety Commission, codes of practice, and legislative consultation.

In a context where Sri Lanka's digital ecosystem stands at the precipice of substantial growth, the letter further said, it is essential to foster an environment that encourages innovation and investment. The AIC noted the urgency of reconsidering the current draft.

“We understand the complexity of drafting such legislation and acknowledge the importance of addressing online safety concerns. Therefore, this continued collaborative approach is essential to ensure that the OSB strikes a balance between safeguarding users and fostering a conducive environment for digital innovation,” the letter, signed by AIC’s Managing Director Jeff Paine, said.

Moreover, it presented a number of recommendations in connection with those concerns.

Recommendations read that in line with Sri Lanka’s international human rights commitments, the Bill should recognise and ensure the protection and respect of human rights, including Sri Lankans’ fundamental right to free expression. In this process, restrictions on the right to freedom of expression must be legitimate, proportionate, and necessary, and should take into account factors such as prevalence (the number of people affected or likely to be affected by the content), the severity (the degree of real world harm caused or likely to be caused to the people affected), urgency (the immediacy of the harm or threatened harm), and discrimination (whether takedown demands target particular population groups on the basis of race, religion, gender, sexual orientation or other protected categories).

Adding that a review of the existing legislation should be conducted to ensure consistency and regulatory certainty, the letter further said that offences relating to religious feelings and terrorism in particular are already covered under other legislations. The Bill should also be limited in scope to the relevant intermediaries, and should not apply to private communication services, such as one to one messaging platforms, the recommendations read.

“The criminalisation of illegal content, such as false statements, is a disproportionate restriction on the 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 create a hostile environment for business and would deter foreign direct investment,” the letter said, recommending that therefore, criminal liability should be removed from the Bill.