• A dialogue with legal professionals of the Gampaha Lawyers Association 

Child abuse, including physical, sexual, neglect, and emotional abuse, is a global concern affecting millions of children. Of particular concern is child sexual exploitation and abuse online. 

The need for lawyers to play an active role in protecting children online, and advocating for better systems and laws to combat child sexual exploitation and abuse, should be emphasised. Sri Lanka has been known for supplying child sexual abuse materials, which further exacerbates the problem. Social media platforms have become increasingly popular and have many benefits, but they have also become avenues for child sexual exploitation. Predators can use these platforms to groom and exploit children, and popular apps that are widely used by women can also unknowingly expose children to potential risks.

Lawyer Priyani Rathnayake mentioned that there has been a growing number of children and women becoming victims of cybercrimes in Sri Lanka recently. In the past, there were only three types of wars: Wars at land, at sea, and those held in the sky. However, the emergence of crimes in cyberspace has expanded this classification.

Rathnayake said that Police stations are unable to handle complaints of cybercrimes as they cannot be burdened with extensive investigations. Therefore, the State has established a special Cybercrimes Unit under the purview of the Criminal Investigations Department (CID) composed of experts in information and communication technology (ICT) to handle such cases.

Codified protections

In this regard, she explained that it is an offence to use a child to obtain nude photographs under the Penal Code of Sri Lanka. For such an offence, a prison sentence of up to two years is possible. Under the Penal Code, taking, distributing, filming, posting, or possessing nude photographs of a child is an offence. It is even prohibited to keep obscene photographs of children without permission. 

The Penal Code has been updated with special provisions to include several offences committed using technological devices. These amendments aim to address the growing number of crimes that utilise technology in their commission. The amendments include the Penal Code (Amendment) Act, No. 22 of 1995, the Penal Code (Amendment) Act, No. 29 of 1998, and the Penal Code (Amendment) Act, No. 16 of 2006.

The 1995 Amendment to the Penal Code introduced a new section to be inserted after Section 286, which is 286A. Under Section 286A, it identifies offences for the sale, distribution, and publication of photographs, or the indecent exhibition of a child. The punishment for the offence of obscene publication, shall, on conviction, be punished with imprisonment for a term not less than two years and not exceeding 10 years, and may also be punished with a fine.

Under the 1998 Amendment, this Section 286A was amended by including a new section by identifying the offence of any person who is a developer of films or photographs who discovers that any photograph or film given to him/her, to develop an indecent or obscene photograph or film of a child, shall, upon such discovery, inform the Officer-in-charge of the nearest Police station by informing that he/she has in his/her possession such photographs or films. The punishments are stipulated under the same section, where any developer who fails to comply with, and instead contravenes, the provisions shall be subjected to a fine or imprisonment of either description for more than two years, or both.

Under the 2006 Amendment, new sections were included after Section 286A, as Sections 286B and 286C. Under Section 286B(1), a person who provides computer services (communication centres) by means of computer usage shall take necessary steps to ensure that the computer facility is not used to commit an act constituting child abuse. Under the same section’s Subsection (2), a person who has the knowledge of committing a crime shall inform the nearest Police station of such a cybercrime constituting of child abuse or exploitation.

Rathnayake indicated that in a recent case filed before the Magistrate’s Court of Matara, a teacher over 18 years of age was providing tuition to a boy who was 16 years old. The pair had got into the habit of chatting online, and subsequently, the boy had requested the teacher to send him nude pictures of herself. The teacher had responded positively to these requests, sending such pictures of herself, and caused to abuse the boy – who is still considered a child under the age of 18 years – to satisfy her sexual desires.

The Amendments in 1995, 1998, and 2006 prohibit the above actions. This child had forced the teacher to send nude pictures of herself and threated her that if she did not, that he would commit suicide. This incident shows that if children under the age of 18 years get into the habit of engaging in sexual crimes, it is extremely difficult to redeem them. This case shows that this child has been consumed by some mental stress.

Child online safety

In the event such cases are reported to the Children and Women’s Bureau (CWB), the child in concern should be sent for examination by a psychiatrist, and probation reports should be requested.  Especially, girls end up in deep depression. Due to the increase in digital engagement for educational purposes, society at large is faced with several challenges of child online safety.  It is the responsibility of parents and guardians to control and supervise the use of electronic devices by minors. Therefore, children should be protected from cybercrimes before they end up being mental patients for life. 

Nowadays, using technological devices and applications such as Facebook, Messenger, WhatsApp, Instagram, etc., have caused many mental issues in children. Most cybercrimes are committed using fake accounts. Gaming, especially, has caused many issues such as cyber-bullying. Certain videos even drive children to commit suicide.

There is a huge blockade when leading electronic evidence before courts. Even though the Police initially eagerly says that there is enough electronic evidence, when the case is taken up in courts, the Police is reluctant to produce the e-evidence, such as closed-circuit television camera footage, WhatsApp messages, screenshots, etc. Under the Evidence (Special Provisions) Act, No. 14 of 1995, such evidence should be produced before the court to bring justice to the client. In an instance where a party wishes to produce such evidence before the court against the other party, it should be produced 45 days prior to the date of hearing to which the other party can raise objections.

Further, under the said Act, prior to 15 days of the hearing of the case, the other party can request access to such evidence by filling an application. In these cases, lawyers together with their clients should engage in the groundwork – as Police officers generally delay on their part and all evidence will either be outdated or lost, even though they should have a greater responsibility on child-related cybercrimes.

Under Section 372 of the Penal Code, whoever forces another to deliver any property, person, or valuable security by threatening, commits the offence of extortion. The Police, when producing evidence under Section 372, should produce strong evidence before the court.

In this regard, Rathnayake explained how women and young girls in Sri Lanka are blackmailed by their so-called ex-boyfriends or ex-partners, using photographs taken while in relationship. She indicated that the CWB and the cybercrimes division of the CID are inundated with such cases. In most cases, the Police would say that they lack resources to handle such cases. She called the lawyers to advocate for amendments to the criminal defamation laws, as there is an increase in the number of character-assassination cases due to the advancement of technology and the rise in cyber sexual exploitation.

The need for a legal rethink

Meanwhile, Assistant Legal Draftsperson Kalani Medagoda, emphasised the need for legal reforms tailored to protect children in cyberspace, and the importance of internationally recognised concepts when representing children in court. She reiterated that all cases should be handled with consideration of the “best interest of the child”.

The Government of Sri Lanka says that whatever laws passed internationally are not applicable to Sri Lanka. However, that should not be the case. Lawyers should advocate for law reforms, as that is their learned duty. Lawyers should stand up for themselves and do things differently, without just going with the flow.

Medagoda further stated that lawyers are supposed to educate themselves to be updated. She recommended that they read Bills, Acts, and Gazettes, and understand them to challenge the upcoming Bills. She stressed that parents should engage in good practices at home with their children, by responsibly controlling and supervising the usage of devices without always taking the easy way out. She further indicated that lawyers should be equipped with a thorough knowledge about the defamation law, and how to use it in cases of child abuse.

Elaborating further, Medagoda explained that lawyers should handle cases related to cybercrimes connected with sexual exploitation and sexual abuse based upon four important concepts stipulated in the Convention on the Rights of the Child and the Universal Declaration of Human Rights. These concepts are used in law reforms related to child protection. They are, namely, the best interest of the child (a child’s welfare), participation (a child’s interaction with society), inclusion (a child’s inclusion in society), and accessibility (a child’s access to the rest of the world).

She also requested lawyers to familiarise themselves with the Directive Principles of State Policy, as that is what guides Parliament to enact and reform laws in the country. Principle 13 of the Directive Principles of State Policy and Fundamental Duties states that the State shall promote, with special care, the interests of children and youth, to ensure their full development – physical, mental, moral, religious, and social – and to protect them from exploitation and discrimination. She posed a question: “Why don’t Police officers and lawyers use these concepts in handling cases of exploitation?” Supreme Court judgements say that concepts in the Directive Principles could be interpreted in fundamental rights cases. Lawyers should have a change of attitude in handling such cases.

A call for action

A member of the ICT Law Committee of the Bar Association of Sri Lanka (BASL) and an expert in digital law, Dr. Sunil Abeyratne explained that in this era, any individual in any profession is bound to use ICT in their day-to-day work. He requested lawyers to familiarise themselves with new concepts in order to provide proper advice to clients.

The subject of ICT in law has been divided into main areas such as computer crimes, e-commerce and mobile commerce, intellectual property rights, data protection, the employee-employer relationship under the information society, dispute resolution, social media, cloud computing, high tech, and artificial intelligence. Now, we have a brand new Act for Personal Data Protection in Sri Lanka, No. 9 of 2022.

In this regard, lawyers have to familiarise themselves with new concepts and laws as the presentation of e-evidence is of utmost importance to face admissibility and forensic challenges in legal cases involving high tech crimes. Criminals use ICT either as a storage centre or as a tool to achieve their targets. 

There should be a call to action, emphasising the need for collaborative efforts among legal professionals, law enforcement agencies, and civil society to combat child sexual exploitation and abuse online. Continued engagement and being up-to-date with regard to developments and initiatives in child protection online are important in moving forward.

Taking an example from United States (US) law, Dr. Abeyratne explained the Children's Online Privacy Protection Act (COPPA), which is a federal law enacted in 1998. This Act applies to the online collection of personal information by persons or entities under US jurisdiction about children under 13 years of age – including children outside the US if the website or service is US-based. It details what a website operator must include in a privacy policy, when and how to seek verifiable consent from a parent or guardian, and what responsibilities an operator has to protect children's privacy and safety online. Therefore, in the US, children are not allowed to operate an email account. If there is a necessity to do so, a parent or a guardian should have a parallel account to monitor the child’s emails.

Dr. Abeyratne emphasised that stakeholders should engage in public litigation on behalf of such simple laws. Even though Sri Lankans also use the same high tech devices and the same Internet, the difference is that we are not ready to amend our laws, or introduce new laws as and when necessary.

An activist campaigning against sexual exploitation – a lawyer by profession – said that she had studied laws in the US, Australia, etc., and presented these to the Legal Draftsman’s Department, but that they had not been received well. Abeyratne said that such efforts should be replicated across the country.  

Explaining reasons for the lapses, Dr. Abeyratne also said that lawyers working in relevant fields should be consulted when drafting Bills or reforming laws in order to reach a consensus. Since no consultation is happening, certain laws lack practicality. He further said that it is pathetic to mention that certain laws are made known to members of the BASL only when they are gazetted. Unfortunately, they have to then challenge those laws through public litigation, which is a waste of time and effort.

(Protecting Environment and Children Everywhere – End Child Prostitution in Asian Tourism Sri Lanka [PEaCE/ECPAT Sri Lanka] is a non-Governmental organisation focused on child protection by way of ending sexual abuse and exploitation of children)

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The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication.