Repeal, don’t amend

Argument
By Editor_1
A blindfolded activist with a rope tied around his wrists and covered with logos of different social media platforms takes part in a protest against the 'Online Safety Bill', near the parliament building in Colombo on January 24, 2024. Sri Lanka's parliament passed the social media regulation bill dubbed 'draconian' by the opposition, which could make companies criminally liable for posts authorities deem harmful -AFP/File

Why Sri Lanka’s Online Safety Act must go

By Hana Ibrahim

The recent call by the National People’s Power (NPP) government for public observations and suggestions on amending the Online Safety Act No. 9 of 2024 presents itself as an opportunity for open dialogue and democratic reform. However, for anyone who has followed the journey of this legislation – from its troubled inception to its contentious passage – the uncomfortable truth remains: The Online Safety Act is so deeply flawed in principle, design, and process that it cannot be salvaged by mere amendments. If Sri Lanka is serious about upholding constitutional guarantees and restoring public faith in governance, the only responsible course of action is to repeal this Act in full.

From the outset, the Online Safety Act has attracted unprecedented public opposition and legal scrutiny. Over forty fundamental rights petitions were filed before the Supreme Court by a broad coalition of journalists, civil society organizations, activists, and ordinary citizens. Never before in recent memory has a single piece of legislation drawn such a groundswell of constitutional challenge. These petitions were not motivated by narrow self-interest, but by widespread concerns that the Act violated core constitutional rights, especially those relating to freedom of speech, opinion, assembly and association.

The Supreme Court’s response was equally significant. In its historic ruling, the Court identified more than thirty separate clauses and various omissions that were inconsistent with the Constitution. These were not trivial defects or loopholes that could be patched in a technical sense. They spoke directly to the very spirit and substance of democratic guarantees enshrined in our Constitution. The Court stipulated that unless these changes were incorporated, the Bill would not only require a two-thirds majority in Parliament for passage but, in some sections, even a public referendum.

Rushed Lawmaking

Despite the seriousness of these judicial findings, the then government’s subsequent actions reflected neither caution nor respect for constitutional due process. The bill was rushed through Parliament after a truncated debate – barely two days in total- with Committee Stage discussions only beginning late in the evening of the second day. Legislators and the public were given little time to digest or respond to the Supreme Court’s stipulated changes. Crucially, several of the Court’s mandated amendments were only partially adopted or omitted altogether.

Such haste is not merely careless. It represents a systemic failure of our legislative process – a disregard for judicial oversight, parliamentary deliberation, and the necessity of genuine public participation. These are not simply procedural quirks; they are foundational principles meant to safeguard the people from government overreach. In its current form, the law stands tainted by this procedural illegitimacy.

This view is echoed by the Human Rights Commission of Sri Lanka, which pointedly observed that the Act, as passed, fails to fully comply with the Supreme Court’s determinations. The Commission noted that, at the very least, the government needed to re-gazette or properly amend the Bill and subject it to robust debate and consultation. Instead, what we have is a law passed in haste, with its constitutional foundations in jeopardy.

Troubling Content

If the Act’s process was flawed, its content is even more troubling. At its core, the Online Safety Act grants sweeping and poorly defined powers to a government-appointed ‘Online Safety Commission’ – with the authority to block content, remove posts, impose jail terms, and recommend prosecutions. The Act is rife with vague and overbroad definitions that render almost any criticism or dissent vulnerable to censorship. Key terms like “prohibited statement” are so elastic that they risk criminalizing satire, investigative journalism, academic commentary, and even legitimate activism.

This fundamentally threatens the backbone of Sri Lanka’s hard-won freedom of expression. In an environment where journalists, activists, and ordinary citizens already face intimidation, the knowledge that social media posts, news reports, or even WhatsApp messages could be arbitrarily deemed ‘dangerous’ will inevitably promote self-censorship. This ‘chilling effect’ is the antithesis of healthy democratic debate.

The United Nations, leading international press freedom organizations, and global tech companies have all expressed grave concerns. Many warn that the Act contravenes Sri Lanka’s international commitments to uphold civil and political rights,  including the International Covenant on Civil and Political Rights (ICCPR), and puts at risk the country’s standing in global dialogues on democracy, innovation, and economic recovery. Perhaps most tragically, it is precisely at a time when Sri Lanka most needs free, open dialogue and critical questioning to chart a way through economic and political crisis that such a law threatens to silence the very voices that can contribute to solutions.

Beyond Repair

Faced with these realities, it is wishful thinking to believe that amending the law, clause by clause, will address its underlying defects. The Supreme Court’s lengthy list of required amendments makes clear that the deficiencies are deep-seated, not superficial. The government’s rushed process has irreparably tainted the legitimacy of the law. The vague powers it accords to the Commission threaten every Sri Lankan’s right to free speech, privacy, due process, and equal protection.

This is not a matter of partisan politics, but of first principles. Laws that cannot be rooted in the framework of the Constitution cannot be a stable foundation for governance. The overwhelming opposition, demonstrated by the flood of Supreme Court petitions and urgent statements by civic and rights groups, points to a rare national consensus. Even in Parliament, new private legislation to completely repeal the Act has been tabled.

If the government is sincere about its call for public input, it must engage in real listening, not with the intention to tinker and tweak, but with the humility to restart. The way forward is clear: repeal the Act in its entirety. In its place, initiate a genuinely consultative process, transparent, inclusive, and committed to constitutional and international human rights standards, to address the legitimate challenges of online safety without trampling the fundamental freedoms on which all progress depends.

Sri Lanka deserves a digital future built on rights and respect. Salvaging the Online Safety Act will not get us there; only its repeal can lay the ground for better, more democratic laws in the years to come.

-ENCL

Editor_1
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