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Code of ethics for social media: Battle between rights vs. regulation

26 Feb 2022

  • Self-regulation, not more regulation: Industry
  • Laws expected by the end of the year
  • Clarity about the laws and intent of Govt. needed: FMM
  • Industry-generated Code of Conduct submitted to Govt. in 2017: PWJA
By Skandha Gunasekara The Government will perform stakeholder consultation regarding a proposed code of ethics for social media which has triggered a call from the media industry for self-regulation, warning that any such State regulation may breach freedom of expression. Ministry of Mass Media Secretary Anusha Palpita told The Sunday Morning that the Government would first seek the views of media institutions on what the code should entail.  “We have sent it to media institutions and organisations to see what they will say about it and have asked for their observations. Once we have received the feedback, we will prepare the document. What must be highlighted is that the code of ethics will be formulated strictly on the observations and views of the media industry and the will of the Government,” Palpita stated.  He said the Government would facilitate the introduction of this code of ethics in the hopes of concluding the endeavour by the end of the year.  “Once we have received the observations we will appoint a committee to go through them and formulate a document that is acceptable to all parties concerned. We will try to finalise this before the end of the year. The most important thing is that it all comes from the media industry on how the code should be. Our role is just the facilitator.” New media expert and Attorney-at-Law specialising in entertainment law and sports law Chanakya Jayadeva explained to The Sunday Morning the limitations of freedom of expression and what could be violated as a result. “There are two types of people on social media. One, people who are in mainstream media institutions. They get a different audience and a wider coverage for their main content via social media. The other are people who are on social media who express themselves as they don’t have a platform. Both categories of persons would say ‘no there shouldn’t be any form of curtailment because it violates freedom of speech, or freedom of expression’. Now, if you look at it generically, the concept of freedom of speech is embedded in constitutions all over the world. For example it is found in the US Constitution for 200 years with the First Amendment. It is enshrined in the Sri Lankan Constitution in Article 14 (1)(a) as well. The idea is ‘let people speak their mind’. But freedom of expression has its limitations. I can’t have absolute freedom of expression if it breaches somebody else’s right. Your right to swing your arms ends just where another man’s nose begins.” He added that an online user could cause several violations of different laws via User Generated Content (UGC) on social media. These laws include defamation laws, Intellectual Property Law, especially copyright infringement, hate speech, and privacy and publicity violations. Jayadeva also highlighted the growing instances of Intellectual Property violations and rampant individual cases of defamation as a matter of high concern now.   “Violations in the form of hate speech constitute a developing area of law and Sri Lanka has it covered under the ICCPR Act. If you look at the International Covenant on Civil and Political Rights (ICCPR) Act, it defines hate speech as something that creates hate, animosity, anger, violence, or disharmony between religions, race, communities, or even two individuals. If you look at some recent issues in Sri Lanka such as the Digana riots in 2018 and the Easter attacks, the authorities then had to curtail social media for a period of time. This was to prevent the spread of any form of hate speech generated by users which, if allowed, owing to the viral effect in social media, could have had serious consequences. Most of these hate speech messages are personal opinions and are not fact-based or verified ones like that come from mainstream media,” he explained.  He also pointed out that the use of revenge pornography was another growing menace on social media. This is unauthorised use of private images and video content uploaded by generally lovers or people in relationships when they fall out. Privacy violations are additional issues that frequently arise on social media which occur in different manners, including by way of revenge porongraphy.  Jayadeva then elaborated on how community standards were tightened by social media companies as a form of self-regulation: “As a result of the hearings that were held by the US Congress and a lot of concerns raised by many in recent times, major tech companies have tightened their community standards lately. Going back to when the internet was formed, communications experts and industry veterans opined that the internet would never be able to be regulated by law and would have to be self-regulated, so these community standards were created based on the principles of self-regulation.  “If you take the Facebook example, once an individual opens an account they have to enter into a contract – known as a ‘clickwrap agreement’ – the said community standards become part of the contract on the terms and conditions upon which the user’s existence on the platform depends. If the user violates these terms, it becomes a breach of the contract and the company can take different levels of actions or even terminate the users account permanently. These community standards are what regulate the material that is put on Facebook by each individual. In the recent past with major racial tensions in communities in the West, major tech companies tightened their community standards to curtail hate speech, violations of privacy and publicity, and other areas of laws. As a result, a violation of community standards can result in the person’s post being taken down and the user being permanently blocked from the platform.” Jayadeva pointed out that at present Sri Lanka had laws that dealt with a large part of the above-mentioned violations. “For defamation or Intellectual Property violations on social media, the existing laws in Sri Lanka can be invoked to initiate legal action. As Sri Lanka recognises privacy as a common law right, it can be used for litigation against online privacy violations as well. However, what would be helpful is for the Government to look into strengthening certain existing laws to cover online activity. One such area would be to bring about statutory recognition of the right to privacy. The other would be a separate law to deal with online copyright and Intellectual Property violations. These two would sort out many issues.” Accordingly, Jayadeva opined that on the other hand introducing any regulation in a manner to curtail freedom of expression was not the answer and could risk violation of freedom of expression enshrined in the Constitution. Free Media Movement Convener Lasantha De Silva called on the Government to first explain to the broader society what the code of ethics was and how it differed from the upcoming Personal Data Protection Bill.  “The Government must first clearly state what they mean and expect to do with this proposition of a code of ethics for social media. This Personal Data Protection Bill that is being brought in and the proposed social media code of ethics remain unclear to us. So first the Government must clarify that point.”  He said the Government should involve all industry stakeholders including the tech companies as well as social media users in this endeavour.  “The Government must go for a broad discussion with all relevant industry stakeholders. As far as we know, the Government has not officially invited any media institutions or industry stakeholders to present their views and feedback on this proposed social media code of ethics. Ideally, there should be self-regulation through this code of ethics. But that is not something the Government alone can do. There are several parties that need to be involved in this. On the one hand, the Government must be present in this endeavour as it is the responsibility of the State. It is also the responsibility of the media industry to be a part of this. In addition, social media companies too should be brought in because if we are to figure out how social media is to operate in our country, then we must have that discussion with the representatives of these companies. Finally, the most important party is the users. The Government must ensure that all these stakeholders are approached for feedback.”  While asserting that they too advocated for self-regulation, De Silva warned the Government that the code of ethics must not be used to censor criticism against the Government.  “We are in agreement that instead of introducing laws and regulations, self-regulation should be carried out through this code of ethics. However, we are concerned that the Government expects to use this so-called code of ethics for social media as a guise to censor criticism of the Government on social media. If that is the case we are completely against it.” De Silva’s views were echoed by Professional Web Journalists Association Convener Freddy Gamage. The Professional Web Journalists Association of Sri Lanka said that it had already drafted a code of ethics for online professional journalists to follow and handed it over to former President Maithripal Sirisena as a trend had emerged where online journalists and media institutions were more interested in getting ‘hits’ than disseminating factually correct news.  “We noticed that a lot of online new media organisations and journalists were looking for ‘hits’ for their news items. More hits means more traffic to the website or page, which in turn results in more advertising revenue. However, this has resulted in such news items being inaccurate on many occasions. Therefore, our organisation came up with a code of ethics and submitted it in 2017 to President Maithripala Sirisena,” Gamage told The Sunday Morning.  Gamage noted that they supported self-regulation of social media rather than regulation by a third party. “We don’t believe a government can control what goes on social media and the internet. We believe that it is important not to control but to develop an ideology to practise ethical practices on social media and as online journalists, so essentially self-regulation is the best way,” Gamage opined. He charged that a Government move to bring in regulations would be an effort to suppress freedom of speech and criticism of the Government, citing recent arrests in the north and east. “Many online journalists and facebook users in the north and east have been arrested in the recent past for their activity online. We saw a recent case in Valachchenai where a man was arrested for posting a picture of a crying mother on Facebook, so we see any move by the Government to bring in regulations for social media as a step towards censorship,” Gamage added.


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