International Commission of Jurists issues warning over SL’s Online Safety Bill

• Says proposed legislation would be an assault on freedom of expression, opinion, and information

The International Commission of Jurists (ICJ) has expressed concern that the newly proposed Online Safety legislation if adopted in its present form, would serve to crush free expression and further contract an already shrinking civic space in Sri Lanka.

On 18 September 2023, the Ministry of Public Security Gazetted a Bill titled “Online Safety” intended to dramatically regulate the content of online communication, including by the general public.

The ICJ considers that several provisions of the Bill would serve to undermine the exercise of human rights and fundamental freedoms in the country, including freedom of information and expression.  Of particular concern are provisions related to the setting up, appointment and functions of an Online Safety Commission and other experts, the vague and overbroad wording of conduct designated as punishable offences and unnecessary and disproportionate punitive sanctions.

 “While the spread of online hate-speech and disinformation needs to be tackled, this Bill is deeply flawed in its design and would be open to abuse by the Sri Lankan Government, which has persistently failed to uphold freedom of expression,” said ICJ’s Legal and Policy Director Ian Seiderman. “It risks being used to suppress important public debate regarding the conduct of the Government and matters of public policy,” he added.

The Bill would establish an “Online Safety Commission” that would act to: “prohibit online communication of certain statements of fact; prevent the use of online accounts and inauthentic online accounts for prohibited purposes; make provisions to identify and declare online locations used for prohibited purposes in Sri Lanka and to suppress the financing and other support of communication of false statements,” as well as other unspecified matters.

The Bar Association of Sri Lanka has called for the immediate withdrawal of the Bill and for the adoption of a process of meaningful consultations with all relevant stakeholders prior to Gazetting Bills which ‘have a serious impact on the community at large.’

“The current draft fails to adhere to the principles of legitimacy, necessity and proportionality required for any State activity that restrict rights. It must be withdrawn or amended to be brought in line with Sri Lanka’s international human rights obligations guaranteeing freedom of expression, opinion, and information,” Seiderman added.

The ICJ considers that the Bill should not be evaluated in a vacuum, but instead must be read in conjunction with existing and proposed legislation that threatens human rights. Such laws include the extremely misused ICCPR Act of 2005, the Prevention of Terrorism Act (PTA), the Bureau of Rehabilitation Act, and the proposed Anti-Terrorism law which seeks to replace the PTA. This body of legislation, taken together, fosters a chilling effect on the exercise of fundamental freedoms restricting civil society while unduly expanding the reach of the security state.

Article 14 (1) (a) of the Sri Lankan Constitution guarantees the freedom of speech and expression. Article 19 of the International Covenant on Civil and Political Rights, to which Sri Lanka is a party, affirms the right to freedom of expression and opinion.

In July 2018, the UN Human Rights Council adopted by consensus a resolution affirming that “the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with Articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.”