• Public Security, Media, Justice Ministries to reach decision on amending act ‘soon’
• Media Ministry holds consultations with media stakeholders 

The Public Security Ministry has reaffirmed its commitment to amending the Online Safety Act (OSA) No.9 of 2024, while the Media Ministry has held consultations with media stakeholders on the matter.

Speaking to The Sunday Morning, Public Security Minister Ananda Wijepala said his ministry as well as the Justice and Media Ministries would take a decision together soon on amending the OSA. 

When questioned whether it would be fully implemented – for example, by the appointment of the commission as mandated by the act – Wijepala said they were not planning to do so at the moment. 

“We need to bring in amendments, and we will take a decision on it soon,” he added. 

An ongoing saga

The controversial legislation was passed in January 2024 by the administration led by former President Ranil Wickremesinghe, amidst public outcry about its potential harm to free expression and speech. 

At the time, the OSA came solely under the purview of the Public Security Ministry. However, after the new Government came into power, a gazette released on 25 November 2024 demarcating subjects and functions under various ministries shows the OSA coming under both the Mass Media and Public Security Ministries. 

On the other hand, the Online Safety Commission (OSC) – the institution through which the OSA will primarily be implemented – was demarcated under just the Ministry of Mass Media. 

Earlier this year, as learnt by The Sunday Morning, the Mass Media Ministry held consultations with media stakeholders about the OSA, where the latter had highlighted that the act should be completely repealed. An amendment process to the existing legislation would amount to ‘plastering over’ its issues, stakeholders had noted. 

However, since then, the Mass Media Ministry has taken a backseat on the process with the Public Security Ministry leading it instead. The Sunday Morning further learns that the Ministries of Public Security, Justice, and Mass Media are expected to do another round of public consultations on amending the act. 

Deputy Minister of Mass Media Dr. Hansaka Wijemuni confirmed to The Sunday Morning that the ministry had been involved in consultations about the act. 

Private member’s bill 

Earlier this month, a private member’s bill to repeal the OSA sponsored by United National Party (UNP) Parliamentarian Ravi Karunanayake was gazetted. 

Wijepala criticised the move as one intended to “trick people”. “They should have done that when they had the time for it,” he said. 

Media analyst Nalaka Gunawardene told The Sunday Morning that the private member’s bill was a “good opportunity” for citizens to test whether the current Government was sincere in its commitment to repealing the act.

The three National People’s Power (NPP) MPs in the last Parliament vehemently opposed the bill when it was taken up for debate on 23-24 January 2024, terming it a tool to control dissent and a threat to democratic activity. The incumbent President and Prime Minister, as then Opposition MPs, had argued eloquently as to why the bill should not be passed, noted Gunawardene.

“The Hansard of those two dates records what they said, just 15 months ago. Now that they are in office, how can they change their stance? By August 2024, the NPP manifesto was talking about amending the OSA, which signalled a considerable backtracking of their original and principled opposition. We have to watch carefully to see if the NPPers will walk their lofty talk about doing away with this draconian law.”

A ‘chilling’ effect

He further noted that there had been a certain “chilling effect on online expression” since the new law came into being.

“For more than a year now, some people and companies have been petitioning Magistrate’s Courts under Section 24 of the law, and some magistrates have issued orders. Therefore, the chilling effect on online expression is already happening,” he said. 

With those having the means and resources to litigate under the OSA already doing so, journalists and social activists asking inconvenient questions in the public interest were being gagged through the courts, highlighted Gunawardene.

“The commission not being appointed is only a technicality. As far as the chilling effect is concerned, it is already happening. The OSA has become a de facto defamation law in practice during the past year,” he asserted. 

The first arrest under the act happened in February 2024 on charges of online defamation, incitement, and misinformation against the Government. Other cases filed under the act include defamation lawsuits by online money lenders and a harassment case filed by former Chairman of the Public Utilities Commission of Sri Lanka (PUCSL) Janaka Ratnayake. 

In the past four months of this year alone, three high-profile stakeholders sought relief under the OSA. In January, a private media station sought legal action against an online media channel for allegedly spreading defamatory content about it. 

This month, following a large-scale data breach that exposed sensitive customer and business operational information, a private bank filed a petition under the OSA. The Colombo Chief Magistrate’s Court issued a temporary order on 8 April directing the Telecommunications Regulatory Commission of Sri Lanka (TRCSL) to block access to websites or social media accounts distributing or publishing illegally-obtained data from the bank. 

Last week, the Colombo Additional Magistrate issued a conditional order preventing the dissemination of false and defamatory statements about Maj. Gen. Ashoka Thoradeniya. The order was issued against Rahubadda Kankanamge Indrananda de Silva under Section 24 of the OSA following a complaint by Thoradeniya.

OSC not indispensable

President’s Counsel Jagath Wickramanayake noted that the commission was not necessary for some private plaints. 

“If anybody wants to go to court on the basis of certain offences from Section 12 to Section 24 of the act, they can do so by way of a private plaint. They can file action and seek relief from Magistrates’ Courts directly, and for these, the commission’s support or interferences are not needed,” he said. 

“There are certain applications – for example, a take-down order  – that can be made only by the commission. In such an instance, the commission must first decide whether it’s true or false, take the relevant decisions, and make the application. 

“The commission has several other powers such as investigative powers, but these cannot be implemented without the commission being established. However, if you have clear evidence of offences in the aforementioned sections, you can go to court without the support of the commission. You need the commission, but in spite of it not having been established, you can still go to court on these grounds,” Wickramanayake added.