By Soorya Balendra

In the last two decades, the internet has connected millions of people across the globe and not only changed how humans interact with each other but also transformed the internet space as a new avenue for enjoying free speech. The digitalization of these rights paved the way for the development of the pattern of democracy through technological advancement – digital democracy represents the use of information and communication technologies and strategies by democratic actors within political and governance processes of local communities, nations and on the international stage.

This digital transformation, including the enjoyment of human rights in cyberspace, has made them more accessible, convenient and affordable than ever before, reaching a wider global audience with ease. However, in the era of the internet where hate speech and information manipulation have become prevalent, there is a growing push to regulate social media platforms. The authority to regulate social media is debated among government authorities and private stakeholders and actors such as big tech platforms developed significant models of regulatory frameworks.

While the regulatory models for online spaces significantly vary among jurisdictions, they often fall into two extreme poles: the US, which provides maximum protection for free speech, and China, which implements comprehensive internet censorship. In the contemporary world, many countries in the Global South are actively involved in regulating the online environment. Examples include India with the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules of 2021 and Singapore with the Protection from Online Falsehoods and Manipulation Act of 2019.

In many jurisdictions, the primary authority for online content regulation is vested in governments, resulting in a disparity in internet censorship standards globally. Entrusting absolute authority to state actors frequently leads to the stifling of political debate and online speech. The emergence of authoritarian practices in the digital realm underscores the significance of shifting the responsibility for content moderation primarily to the platforms themselves. This shift would help avoid potential abuses of power, promote transparency and safeguard the principles of free speech in a globally connected digital landscape.

Online Safety Bill

In Sri Lanka, after prolonged discussions to introduce a regulatory framework addressing online hate speech and fake news, particularly in the aftermath of the Easter Sunday Attacks in 2019, the Online Safety Bill was tabled in Parliament on the October 3, 2023. With the objective of ensuring online safety through various measures, the bill itself is a comprehensive regulatory framework with over eight parts and 57 provisions addressing various aspects. These include the establishment and powers of the Online Safety Commission, the prohibition of certain statements of fact in the online space, the measures against these prohibited statements of facts and several other provisions.

On a positive note, the bill represents one of the most efficient attempts in Sri Lankan legislative history due to its comprehensive nature. It has adeptly identified and addressed various concerns within the internet space, effectively bridging the gaps left by the previous Computer Crimes Act. Particularly noteworthy are the updates, including provisions related to bots, as identified under this bill. These updates align with the contemporary nature of the legislation, showcasing a forward looking approach that ensures relevance in addressing issues related to online safety and cyber activities.

The proposed bill draws inspiration from the Protection from Online Falsehoods and Manipulation Act (POFMA) of Singapore, which was enacted in 2019. POFMA, considered one of Singapore’s most controversial bills, faced both local and global criticism for granting extensive powers to the government and imposing what were perceived as arbitrary restrictions on online free speech. Despite the contentious nature of POFMA, a significant development occurred in October 2021 with the case of The Online Citizen Pte Ltd v Attorney-General and another appeal, and other matters. In this case, the Court of Appeal upheld the constitutionality of the POFMA Act, asserting its alignment with Article 14 of the Constitution. Against this backdrop, Sri Lanka has modelled its Online Safety Bill after the POFMA framework.

This article critically examines the Online Safety Bill in Sri Lanka, shedding light on concerns regarding its potential impact on online free speech and explores how the proposed framework may pose risks to the open internet, potentially contributing to an extension of authoritarian control in the online sphere.

Vague definitions

The definitions provided in the bill for certain terminologies are vague, and they pose a risk of subjective interpretation, especially within the context of stifling online discussions. For example, the wording surrounding the “communication of false statements” in Section 12 is both vague and overly broad, potentially allowing for selective application or targeting to silence online media and dissenting voices. This ambiguity may result in consequences akin to an alternative to the Prevention of Terrorism Act in cyberspace. The Office of the United Nations High Commissioner for Human Rights (OHCHR) has expressed concern regarding the ambiguous definitions within the proposed bill. This alarm stems from the potential for subjective interpretations and arbitrary applications, as highlighted by the UN body.

A similar situation arose in the UK where the ambiguous clause “legal but harmful” was removed from the proposed Online Safety Bill. This removal was deemed necessary due to the perceived threats it posed to free speech and the digital economy. Drawing parallels to this case, it is crucial to reassess and refine the language used in the bill to prevent unintended consequences, particularly the suppression of online discussions. Failure to address these concerns could lead to a scenario reminiscent of the challenges posed by the Prevention of Terrorism Act in the digital realm.

Online Safety Commission and its wide-ranging power

A salient aspect of this act is the establishment of the Online Safety Commission comprised of five members appointed by the president of the commission. However, this provision has come under scrutiny from numerous human rights defenders and organizations. The concentration of absolute authority in the president’s hands regarding appointments and removals has been criticized for its potential risks to accountability and the abuse of power. It is essential to highlight that this commission holds exclusive authority over a wide array of issues related to online safety including issuing directives, registering social media and users, conducting investigations and summoning individuals, among other responsibilities. Entrusting such extensive powers to a commission appointed by the head of the executive branch raises concerns of replicating a scenario reminiscent of previous government regimes that, during certain incidents, imposed internet bans in Sri Lanka – actions widely condemned as human rights violations.

Placing such broad authority in a non-independent commission without adequate oversight mechanisms may have detrimental consequences. It could impede the free flow of information, particularly during electoral periods and peaceful assemblies, where the commission’s expansive powers may be weaponized. This potential abuse of authority could lead to restrictions on essential democratic processes, raising further concerns about the protection of human rights and freedoms.

Broaden penal provisions

After the landmark decision of Sinha Ratnatunga V. The State, Sri Lanka abolished criminal defamation through the Penal Code (Amendment) Act, No. 12 of 2002. This amendment repealed Chapter XIX of the Press Council Law, thereby eliminating penal sanctions for defamation in Sri Lanka. However, the newly proposed Online Safety Bill endorses various penal sanctions for the communication of a “prohibited statement of fact,” ranging up to twenty years of imprisonment. The penalties in this bill should adhere to the standards of proportionality, a principle that is lacking in the current legislation, as the prescribed penalties are severe. The chilling effect of these provisions may be exacerbated as the penalties are unduly harsh. Simultaneously, proposing a vague penal law for online publication may lead to curtailing online speech and media freedom. While the protection of online safety is paramount, the articulation and application of certain provisions in the penal legislation require careful consideration. Broad and vague provisions may result in a failure to strike a balance between competing rights.

In my view, the increasing necessity for regulations in the internet sphere is undeniable. Establishing regulatory frameworks is crucial to safeguard the diverse values present across cyberspace. The current global trajectory aligns with this need, especially considering the influence of emerging technologies such as Artificial Intelligence (AI) on the internet landscape. However, the process of formulating regulations raises several critical questions. Who should be the authorized body? How can these regulatory measures effectively accommodate competing values? What role do human rights standards play in these regulations? These questions should be at the forefront when developing a regulatory framework. Striking a balance between private platforms and government authorities becomes essential in protecting the diverse values present on the internet. The inclusion of provisions like the safe harbor arrangement can serve as an intermediate approach, providing a space for collaboration and ensuring that regulatory measures are not only effective but also adherence to human rights and democratic values. Moreover, in a fragile democratic country such as Sri Lanka, the incorporation of oversight mechanisms from independent commissions would significantly enhance the transparency and accountability of applying the proposed frameworks.

-This article was originally featured on groundviews.org