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Obscene publication laws: Civil society groups question motives

  • New laws on child pornography and non-consensual pornography: Sabry

By Uwin Lugoda

The Government’s recent move to revise the Obscene Publications Ordinance raised concerns amongst civil society members.

These concerns stem from the proposed new law’s potential ability to take away people’s freedom of expression and unfairly punish critics and marginalised communities.

“Being able to engage in forms of expression which may be perceived by some as ‘transgressive’ and ‘controversial’ is an important aspect of freedom of expression. Art, in particular, has an important role to play in asking provocative and even uncomfortable questions about realities that may be accepted as ‘norms’ within a society,” said Hashtag Generation Co-Founder and Director Senel Wanniarachchi.

Wanniarachchi stated that as obscenity laws are drafted from a particular moralistic standpoint, they can have serious impacts on various forms of expression.

He opined that in the current context of democratic deficit and increasing threats to freedom of expression, where laws have been continually abused, lawmakers need to be cautious of the proposals they support.

Wanniarachchi stressed that it was important to remain cautious of the practical implications of passing new legislation. Law enforcement has a history of blaming individuals, especially women and LGBTQ persons, whose intimate content was leaked, instead of holding perpetrators to account.

“We shouldn’t be supporting bills if it means we’ll have to be opposing them once they become the law,” he said.

Bakamoono.lk Editor Sharanya Sekaram echoed Wanniarachchi’s sentiments, describing her concerns about the upcoming amendment.

She pointed out that like many of the framing in Sri Lanka’s legal system, the law is based on a morality ground, which raises the question as to who decides on what is moral and what is immoral.

She explained that since the law is enacted according to the written word, it can be stretched to mean anything, leading it to punish potential victims as well as perpetrators.

“At the moment, they are using this law on the lines of pornography to criminalise victims of partner violence as well. A lot of the time, we had to advise young women who were dealing with their intimate pictures and videos being leaked, that even if they sent it with consent, it can be criminalised within the current Act. So, there is no concept of consent within the Act, which is deeply problematic,” Sekaram said.

She stated that, in general, censorship and banning don’t work, adding: “While the justice system should unravel what the law is, it instead tends to come down hard and heavy on everyone. So, my question is whether these new amendments are going to come down harder on obscene publications or whether they are trying to lift some of the regulations.”

Sekaram further questioned who would benefit from a relaxation of these laws. Would it be the general public, with the inclusion of consent, or would it be an individual looking to make money out of the adult film industry?

When asked about proposed legislation, Minister of Justice Ali Sabry stated that these new revisions will focus on preventing child pornography and non-consensual pornography.

He explained the Ministry was working with stakeholders including the Bar Association of Sri Lanka (BASL) and senior practitioners to draft a balanced act.

“I expressed some concerns about the current Act, so we have decided on relooking at it in consultation with the appropriate stakeholders. We are taking our time to hear everyone’s concerns and are planning to draft a balanced act,” he said.

The decision to review and draft a new bill on obscene publications was reached after the Ministry of Justice observed an increase in the number of cases reported of child pornographic material documented in Sri Lanka being widely circulated on all mediums.

Preparations for this new bill began in the last week of September, following the Cabinet’s approval of Sabry’s proposal. The Legal Draftsman was then instructed to prepare a bill that would take strict action against perpetrators that circulate, stream, and/or publish digital material that includes children being subject to grave sexual abuse or cast in productions of a pornographic nature.

“While there are provisions in the Penal Code and the Obscene Publications Ordinance, the regulations and laws need to be updated to match the present times. At the same time, the charges that are imposed need to be updated to match the present times. Therefore, we have reached out to the Information and Communication Technology Agency of Sri Lanka (ICTA) and Sri Lanka Computer Emergency Readiness Team (SLCERT) to prepare a draft document that contains the proposed amendments,” Sabry explained.

Section 285 of the Penal Code makes selling or distributing, importing, or printing for sale or hire, or publicly exhibiting any “obscene content” an offence, while Section 286 makes the possession of such content for sale, distribution, or public exhibition an offence. Section 2 of the Obscene Publications Ordinance further adds to this, making the producing of these types of content also an offence.