• Lawyers, researchers, policymakers, reformists, and media personnel outline challenges in regulating freedom of expression online

BY Sumudu Chamara Although the topic of imposing newer, stricter laws and repealing outdated laws arises often in the discussion on dealing with misinformation on social media platforms, the introduction of new laws entails a number of other matters, such as how the interests of various stakeholders are taken into account when forming laws and how the proper implementation of laws is ensured. At the same time, there needs to be a wide discourse on existing laws that affect constitutionally guaranteed rights such as the freedom of expression. According to several experts who expressed these opinions during a discussion on social media and the freedom of expression, even though it is important to have laws to ensure the quality of content circulated via the media, new or stronger laws alone will not be sufficient to deal with those issues.  Among these experts were former Government Information Department Director General Dr. Ranga Kalansooriya, Justice Ministry Justice Sector Reform Programme Director and Attorney-at-Law (AAL) Shamir Zavahir, and Centre for Policy Alternatives (CPA) Senior Researcher and AAL Bhavani Fonseka. Freedom of expression Freedom of expression is a right guaranteed by Article 14(1)(a) of the Constitution, which reads “every citizen is entitled to the freedom of speech and expression including publication”. Highlighting this, Fonseka noted that Article 15, however, has provided specific restrictions for certain rights which are on the lines of national security, public order, and public health, etc. “There are, however, other laws that infringe on the right to speak, express, write, and communicate, etc., about which we have to be aware of,” she stressed.  These other laws, she said, include the Penal Code, the Prevention of Terrorism (Temporary Provisions) Act, the International Covenant on Civil and Political Rights (ICCPR) Act, and the Computer Crime Act as amended. In addition, the Supreme Court (SC) too has provided safeguards for the same in their jurisprudence, according to Fonseka. “There is a rich tapestry of case law that ensures that even if you criticise the Government or a particular individual, you cannot be arrested or charged, because that is a fundamental right in a democracy. Democracy provides specific guarantees to any citizen to speak their mind, and even the provisions in the Constitution that restrict certain rights say one, very clear thing, which is restrictions against freedoms and rights have to be provided by the law.” An example Fonseka pointed out with regard to the freedom of expression and action to restrict that freedom was certain arrests made during the height of the Covid-19 pandemic. “During the pandemic in 2020 and 2021, when there were various unprecedented developments including restrictions, we saw people being questioned for statements they made criticising the Government or for posts they put on social media platforms such as Facebook. The question is on what basis such action was taken – was there a law that was applicable, or was it arbitrary?” She emphasised that while freedoms provided clearly by the Constitution is a good thing, the fact that various other laws can be used against such freedoms is concerning. During the discussion, speaking also of Article 10 which refers to the freedom of thought, conscience, and religion, Zavahir explained: “If you take the intentions behind the Constitution, it is very clear that this was a right which was meant to be interpreted mostly in favour of the citizens. If you look at the manner in which the Constitution has been drafted, you would see that it is a liberal one. But of course, there are acts such as the PTA and the ICCPR Act which impose certain restrictions, while Article 15 pertains to matters such as national security, the incitement of a crime, and racial and religious harmony. Even though Articles 10 and 14 are broad, when it comes to the applicable restrictions, they leave quite a bit of room for interpretation.” He opined that it is very difficult, practically, to give freedom of expression as an unrestricted right to a citizen.  Speaking of the measures taken during the pandemic to arrest and/or question certain persons over some statements they had allegedly made, Zavahir added: “The pandemic was a medical, health, and economic crisis of an unprecedented level, and the Government was working against the clock. There was and is a massive issue of disinformation about the pandemic and about possible solutions to it. There are still issues such as disinformation regarding vaccines as well. When such situations arise, it is difficult for any government or law enforcement authority to figure out how to balance the situation.” In this context, Zavahir said that it is not advisable to look at such matters purely from the angle of the freedom of expression, and that the nature and urgency of the situation under which the authorities had to work to address disinformation about the pandemic, must also be taken into account. According to Dr. Kalansooriya, even though the Government is determined to curb misinformation and disinformation, it is important to discuss the fair share of disinformation circulated by the Government and state-owned media institutions.  He spoke about censorship, noting: “When we say self-censorship, that refers to the media adopting self-censorship, especially when the media is oppressed or suppressed. However, in the Sri Lankan context, it is different. Even though one can argue that legacy media or traditional media in Sri Lanka, is oppressed in the present context, more than self-censorship, it is media capture that exists. Media capture is when political or economic interests are driving the media content; that is an issue in Sri Lanka.” With regard to Zavahir’s remarks on the Government having to impose restrictions to curtail misinformation in light of the pandemic, Dr. Kalansooriya said that even though it is an agreeable argument, the Government too was a planter of disinformation and that the public got confused as a result. He added: “We did not see a clear policy on the part of the Government until the eighth month of the pandemic. We saw how the Dhammika Peniya (a local concoction said to be able to cure Covid-19 but was later proved to be ineffective) was promoted by the captured media, and how the Government, including the then Health Minister and other prominent politicians, sponsored and endorsed it. So the State became the engine of disinformation. The disinformation the Government spread was not circulated via social media platforms but via legacy media, and according to a study, 96% of the population received this information via television.” He noted that even though what is crucial is to have proper, ethical, and high standard media to fact check what is posted on social media platforms, the opposite of it is happening. “There is a problematic situation as to ensuring transparency and accountability in the media, and how we can trust the conservative media. We need someone to keep checks and balances,” Dr. Kalansooriya opined. New laws as a solution? The discussion also focused on the most commonly recommended solution to issues such as hate speech and disinformation, i.e. bringing in newer and better laws.  In this regard, Fonseka emphasised the importance of questioning the objective of introducing new laws and how they would help manage the prevailing situation. She said: “So many laws give powers to the State to regulate, arrest, and detain. What is the new law going to do? Some might say that since some of the laws Sri Lanka has are very old and therefore require new laws; that is acceptable. The question then is what happens to the old laws – do they remain in law books or get repealed? The other question is the law-making process. Under various Governments, various laws are brought in. However, by the time they get passed, they are very different to what was proposed. We saw it in the 20th Amendment to the Constitution, the Colombo Port City Economic Commission Bill, and the Finance Act. What was presented in the Parliament and was gazetted, and what was challenged in court, changed considerably because committee-stage amendments were brought in.” Fonseka said that in this context, monitoring, studying, and challenging a bill within the seven-day period granted to challenge bills is the citizens’ right, and it should be done responsibly. Furthermore, she explained: “When we bring in new laws, I would caution about what ends up being the law. What we propose may not be what gets passed, and the citizens do not have any control over this process following the seven-day period within which opposition can be raised.” The implementation of laws is another matter Fonseka paid attention to. She raised concerns about laws being implemented selectively, to target certain parties while exempting certain parties. Zavahir, however, was of the opinion that new laws may be necessary depending on the circumstances. “I do not think that there is ever going to be a time where we can look at the justice system and say that we have enough laws and that therefore we do not need any more laws for a particular period of time,” he said. In response to Fonseka’s sentiments about proposed laws being subjected to major changes during the law drafting and passing process, Zavahir pointed out that in a context where the drafting of a law is a process that involves a large number of stakeholders from different sectors, sometimes, the end result may be different to what was initially proposed. He also reminisced how stakeholders from certain fields have been able to provide exceptional contributions to the law-making processes in the past.  He added: “Not every issue regarding bills gets raised within the seven-day period, and sometimes, issues may arise after laws are passed. Making some laws is a constant process where it is not possible to predict every possible concern. Also, there may be gaps between what the law says and what certain people in law enforcement may feel about an issue, and gaps make implementation difficult”.  Meanwhile, speaking about the same matter, Dr. Kalansooriya noted that even though new laws may be useful, they are not a solution to all issues. Moreover, both Zavahir and Dr. Kalansooriya extensively discussed regulatory and monitoring mechanisms for social media use. It was pointed out that while a number of countries have introduced and have tried to introduce laws to manage disinformation on social media platforms, whether those countries have been able to achieve the results they wanted to achieve through those laws needs to be further evaluated. In addition, the importance of a self-regulatory mechanism over laws and public consultations when drafting laws were discussed.  While the matter of the harmful use of social media platforms such as the spread of disinformation is an issue Sri Lanka has been discussing for years, introducing newer, stricter laws to curb such has been an integral part of this discussion. However, as the panellists who spoke at this discussion noted, while laws may help this endeavour, laws alone cannot be expected to address the said issue, and the responsible use of the media by media organisations and social media users is also crucial.