Sri Lanka’s proposed Online Safety Bill, which aims to regulate online content and enhance user safety, has ignited a debate over its potential impact on freedom of expression and the risk of Government censorship. 

While the bill is currently in draft form, several experts and stakeholders have voiced their concerns regarding its implications.

Key provisions of the Online Safety Bill

• The bill establishes an Online Safety Commission tasked with overseeing its implementation and addressing complaints related to online harms.
• Internet Service Providers (ISPs) are required to remove harmful content from their platforms and enable users to report such content.
• The Online Safety Commission is granted authority to block websites and instruct ISPs to restrict access to specific online locations.
• The commission can impose fines on ISPs and social media companies for non-compliance with the bill’s provisions.

Concerns surrounding the bill

• Ambiguity in defining harmful content: Critics argue that the bill lacks clarity in defining harmful content, potentially leading to the censorship of legitimate and non-harmful material.
• Excessive authority of the Online Safety Commission: The bill bestows substantial powers upon the Online Safety Commission, raising concerns about potential misuse and suppression of dissent.
• Inadequate safeguards for freedom of expression: Some stakeholders believe that the bill may not offer sufficient safeguards to protect the fundamental right of freedom of expression, essential for open discourse and democratic values.
• Intends to suppress the right to dissent: Critics point out that some clauses of the proposed legislation appear to be intentionally crafted to suppress the fundamental right to dissent. 
• Supports the expansion of Executive powers: Since the bill provides for the establishment of the commission to be exclusively appointed by the President, stakeholders point out that this further concentrates Executive power. 

A dystopian element 

Speaking to The Sunday Morning, Media Analyst Nalaka Gunawardene drew a parallel between the proposed Online Safety Commission and George Orwell’s ‘Ministry of Truth’ in his book ‘1984’.  

“In George Orwell’s dystopian novel ‘1984,’ the Government of the fictional totalitarian state of Oceania has a dubiously-named Ministry of Truth, whose real purpose is propaganda and revisionist history. In the just-released Online Safety Bill, the Sri Lankan Government proposes setting up an innocuously-named Online Safety Commission, which will have powers to decide what is true and false for all 22 million Sri Lankans. It would be akin to our own Truth Commission, whose members are appointed by the President.

“To be sure, the proposed law’s list of 14 offences includes lofty aims like protecting children from (online) abuse, outlawing cheating through online scams, and prohibiting revenge porn (distribution of nude or sexually explicit photos and/or videos without consent). There is broad agreement on the need for better law enforcement to create a safer internet experience, but Sri Lanka already has laws to tackle most of these concerns. 

“Adding them to this new law seems like a ploy to divert attention from its main purpose: criminalising what citizens express or share on the web (including but not limited to social media platforms) in the name of countering falsehoods. Indeed, the word ‘false’ is found 23 times in the draft law.” 

He also highlighted the risk of selective application of the law to suppress legitimate political criticism and dissent: “If this bill is passed into law, deciding whether a given piece of information is true or false will be left to five presidentially-appointed persons forming the Online Safety Commission (and in some cases, it will be up to magistrates). But assigning the monopoly over truth to a State entity can seriously undermine freedom of expression, which is guaranteed as a fundamental right in the Constitution [Article 14 (1)(a)]. 

“The bill defines ‘fact’ to include ‘anything or state of things which are seen, heard, or otherwise perceived by the users of internet-based communication services’. Its definition of ‘false statement’ is ‘a statement that is known or believed by its maker to be incorrect or untrue and is made especially with intent to deceive or mislead but does not include a caution, an opinion, or imputation made in good faith’. 

“Such vague definitions will leave room for this law to be misused through interpretation by the Police and prosecutors. In a country like Sri Lanka which has not asserted rule of law (that is, law applies equally to everyone), there is a real danger of provisions in such a law being selectively used to crack down on legitimate political criticism and dissent.” 

Caution against overregulation

Samagi Jana Balawegaya (SJB) MP Dr. Harsha de Silva questioned the feasibility of a committee deciding what could be true and false in the digital realm, emphasising on the importance of self-regulation by online platforms. He cautioned against the overregulation of online platforms, which could drive operators away from Sri Lanka.

“For a committee to determine what is true and what is not, it just won’t work. All these platforms have their own community standards because they are responsible people. If we try to overregulate these platforms, they could leave Sri Lanka. This is a tiny market for these big operators. Everything, including Google Maps, depends on whether Google operates in Sri Lanka or not. How would an economy run without Google Maps? All the new services are based on technology and to regulate them through some five politically-appointed people is foolhardy.

“There are techniques, such as Artificial Intelligence, by which you are able to distinguish the good from the bad – things like hate speech. The Government took that comedian and got a detention order and kept her inside for a number of months saying it was hate speech, but what happened? No charges were framed. This is all for the benefit of these people in office.” 

Alarming language and provisions

Centre for Policy Alternatives (CPA) Senior Researcher and Constitutional and Human Rights Lawyer Bhavani Fonseka expressed concerns about the broad scope of language and provisions in both the Anti-Terror Bill and the Online Safety Bill: “I don’t know if it is a coincidence or not that both the Anti-Terror Bill and the Online Safety Bill came out at the same time, but the Online Safety Bill is also very alarming in terms of the broad scope of some of the language and the provisions.” 

“Similar to the Anti-Terror Bill, the Online Safety Bill vests a lot of power with the Executive President in terms of appointing the commission and removing the commissioner. That is very worrying because this all comes under that one office.

“If they are genuinely interested in having a law to address online safety, there is a need to look at how to protect people’s rights but also how to have that balance with the freedom of expression. I don’t think this law addresses that. It is a very Executive-heavy piece of proposed law, which then raises the question on whether it is to stifle dissent and expression, but is being used in the guise of preventing other forms of abuse. I think you need to find that balance, but this proposal does not seem to have that balance. 

“Both laws are worrying in terms of how much power is given to the Executive arm and there is an Executive overreach from both these. If it’s passed in this state, it is going to have a very detrimental impact on various rights – especially freedom of expression and media freedom.”

She called for a balanced approach that protected rights while addressing online safety concerns and raised concerns as to why it had been the Ministry of Public Security that had brought the bill. “We need to see what gets tabled in Parliament and then we will have to make a call on whether there is a need for us to challenge it in court, but I really hope the Government hears the concerns and goes back to the drawing board. 

“Having a law is not the issue here; how bad that law is and how it’s going to be used is the issue. A consultation with stakeholders is definitely needed here. It also must be highlighted that this bill was brought by the Ministry of Public Security. Shouldn’t it have been from the Ministry of Media? Why is it coming from the Ministry of Public Security?” she queried.

Careful examination needed

Bar Association of Sri Lanka (BASL) President Kaushalya Nawaratne emphasised on the need for careful examination of the bill’s provisions and vowed to challenge it in court if it threatened freedom of expression.

“We are studying the provisions of the bill, but if this is being brought in with an ulterior motive and to scuttle the freedom of expression and the rights of the people, we will not stand by and watch. We will go before the court and challenge the bill.”

Public Security Minister responds 

When contacted, Minister of Public Security Tiran Alles said that the bill had not been drafted by his ministry but by the Law Council. 

“The Media Ministry was never involved. This bill was drafted by the Law Council and not by our ministry. This was done some time back and then it was handled by the Justice Ministry. Thereafter, there was a request from present and former Justice Ministers for us to present it. That is how it came to our ministry.” 

He added that the ministry was open to amending the draft bill. 

“If someone comes up with proposals and we feel that there is a case there and we need to make some changes, then we are always open to it,” he said. 

While the Online Safety Bill is in its draft stage, concerns about its potential consequences for freedom of expression and Government censorship persist. Stakeholders hope for a more balanced approach that addresses online safety without compromising fundamental rights. The bill’s fate will be closely watched as it progresses through the legislative process.