A new Draft Bill on Online Safety was recently published in the Gazette of 15th September (issued on 19th September). As stated, the objectives of the Bill are to ‘to establish an online Safety Commission; to make provisions to prohibit online communication of certain statements of fact in Sri Lanka; 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 of fact.’
Many provisions of the new Bill appear to be modelled on Singapore’s Protection from Online Falsehoods and Manipulation Act (POFMA). However, there are significant differences. In the following sections we highlight some of the differences, based on an initial reading of the two documents. This is not an analysis of how either law will be interpreted and enforced (in the case of Sri Lanka) or is being interpreted and enforced (in the case of Singapore). The Sinhala translation of this analysis can be found here.
We also point out instances where the law maybe duplicating actions that can already be handled under other existing laws.
We call for a period of public comment where stakeholders can provide input on both the implementability of the proposed law as well as the potential pitfalls including impact on a range of human rights.
Range of offences
Under the Singapore Act the offences are centred around prohibiting the ‘communication of false statements of fact’. The Sri Lankan Bill similarly centres on prohibition of ‘communication of false statements.’ Section 12 for example states, ‘Any person, whether in or outside Sri Lanka, who poses a threat to national security, public health or public order or promotes feelings of ill-will and hostility between different classes of people, by communicating a false statement, commits an offence..’
This provision is similar to Section 7 (1) (b) of the Singapore Act – ‘A person must not do any act in or outside Singapore in order to communicate in Singapore a statement knowing or having reason to believe that —
- It is a false statement of fact
- The communication of the statement in Singapore is likely to (i) be prejudicial to the security of Singapore or any part of Singapore (ii) be prejudicial to public health, public safety, public tranquility or public finances (v) incite feelings of enmity, hatred or ill-well between different groups of persons
However unlike in the Singapore Act, the Sri Lankan Bill includes a subset of offences which are related to religion – for example ‘…disturbing a religious assembly by a false statement’(Section 15), and ‘communicating a false statement with deliberate intent to wound religious feelings.’ (Section 16).
There are also provisions on false statements relating to contempt of court (Section 13), false statements ‘…causing the offence of rioting’ (Section 14), cheating (Sections 18 and 19), and false statements with intent to provoke a breach of peace (Section 20). Also significant is Section 21 which prohibits false statements with ‘.. intent to cause any officer, sailor, soldier, or airman in the navy, army or air force of Sri Lanka to mutiny, or with intent to cause fear or alarm to the public…’
The range of offences covered in the Sri Lankan Bill therefore is broad and goes beyond the scope of the Singapore Act.
With regard to protecting cyber safety, the Sri Lankan Bill has included provisions prohibiting communication of statement of fact, with intention to cause harassment to another person by publishing ‘private information” (Section 22). “Private information” means personal information, including any image, audio or video details, that any person may reasonably expect to remain private.
Definitions
One issue is the potential lack of clarity in defining key terms. Under the Sri Lankan Bill ‘false statement,’ is defined as ‘a statement that is known or believed by its maker to be incorrect or untrue and is made especially with intent to deceive or mislead but does not include a caution, an opinion or imputation made in good faith.’ ‘Known or believed by its maker to be incorrect,’ is a subjective criterion and it is not clear how this will be interpreted.
Under the Singapore POFMA, a false statement of fact is defined as a statement that is ‘false or misleading, wholly or in part, and which a reasonable person would consider to be a representation of fact.[1]
In both Bills statement is defined as ‘any word including abbreviation and initial, number, image (moving or otherwise), sound, symbol or other representation, or a combination of any of these.’ [2]
With regard to definitions – to take a few more examples from the Sri Lankan Bill – it is not clear how the threshold for offences such as ‘wounding religious emotions’ (Section 16), and making a false statement with the ‘objective of violating the peace,’ (Section 20) will be decided.
Governance mechanisms and process
The Sri Lankan Bill provides for the establishment of an Online Safety Commission to perform the powers and functions to achieve the objectives set out in the Bill (Section 4). The Commission will consist of five members having qualifications and experience in one or more of the fields of information technology, law, governance, social services, journalism, science and technology or management, with the members being appointed by the President. (Section 5) The powers of the Commission are set out in Part II of the Act.
A notable issue is that there is no clear process set out by which persons can appeal against notices issued by the Commission. For example a person ‘aggrieved by the communication of a prohibited statement,’ can orally, in writing or through electronic form submit a complaint to the Commission[3]. The Commission has to designate information officer(s) who will be in charge of receiving the complaints. Where possible the complainant should also serve a copy of the complaint to the person or persons making or communicating the prohibited statement and any internet access service provider or internet intermediary.[4]
If the Commission decides that ‘sufficient material exists that a prohibited statement has been communicated,’ the Commission should carry out investigations, and can issue notice on the person to take measures to prevent circulation of the statement[5]. The person has to comply with the notice within 24 hours. There is no provision for the affected person to appeal against the notice issued by the Commission, which is a significant shortcoming and no indication of how checks and balances will be ensured on the powers of the Commission.
If the person does not comply with the notice within 24 hours, ‘the Commission can issue a notice to the internet access service provider or internet intermediary on whose online location such prohibited statement has been communicated to (a) to disable access by the end users in Sri Lanka to such prohibited statement; or (b) to remove such prohibited statement from such online location. [6] There is also provision for any person affected by the communication ‘of any prohibited statement’ to apply directly to the Magistrates Court to obtain an order to prevent the circulation of such information. (Section 27)
The Singapore Act does have a provision for appeals – Part III describes measures that can be taken by the Minister /Competent authority if a false statement of fact is being communicated. A direction can issued directing the person to issue a statement that the statement is false (Correction Direction) or requiring the person to stop communicating the statement (Stop communication directive). The person against whom the directive is issued, can appeal to the High Court against the direction, but the person should have first applied to the Minister to vary or cancel the direction and the Minister should have refused the application. [7]
Registration of websites providing social media platforms
The Sri Lankan Bill stipulates that the Commission on online safety has the power to ‘…issue codes of practice’ (specifying the security practices and procedures to be followed), by service providers and internet intermediaries who provide internet based communication services to the end users in Sri Lanka’[8], and to register, ‘…in such manner as may be specified by rules made under this Act, the websites providing social media platforms to the end users in Sri Lanka.’[9] It is not clear what purpose is served by requiring registration in this manner.
The process for this is set out in Section 53. The commission is required to hold public consultations for two weeks prior to issuing the codes of practice. (There is no such stipulation for public consultation regarding registration of websites)
Offences covered by other laws?
Some of these offences in the Sri Lankan Bill appear to be at least partially covered in existing laws. For example with regard to offences which offend religious feelings, there are laws which cover similar ground, and the implementation of these laws has already been highly problematic. Section 2(1)(h) of the Prevention of Terrorism Act[10] already makes it an offence for any person to cause or intend to cause the ‘commission of acts of violence or religious, racial or communal disharmony or feelings of ill-will or hostility between different communities or racial or religious groups’, by words, signs, visible representations or otherwise.’
Section 291A of the Penal Code provides that uttering words deliberately intended to wound religious feelings is an offence punishable with imprisonment for a term up to one year, or a fine, or both.[11] Section 3 of the ICCPR Act criminalises the propagation of war or the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (however the threshold for offences here is higher than simply the ‘intention of hurting religious emotions,’ there must also an incitement to discrimination, hostility and violence’). The misapplication of this section in recent years has already attracted criticism.[12][13]
Going forward
It’s hoped that policy makers will consider these problematic issues when formulating future versions of the Bill. As discussed above, though this Bill appears to be modelled on the Singapore Act, in many aspects it goes beyond it. It should be noted that even the Singapore Act was introduced only after an exhaustive process of public consultation; public hearings were held where individuals and organisations were invited to testify.[14] It’s hoped that at least a similar process would be followed in Sri Lanka
[1] POFMA Section 2 (2)
[2] Section 56, Online Safety Bill
[3] Section 26 (1) Online Safety Bill
[4] Section 26 (3)(b) Online Safety Bill
[5] Sections 26 (5), 26 (6) Online Safety Bill
[6] Section 26 (7) Online Safety Bill
[7] Section 17, POFMA
[8] Section 11 (j) and Section 53 Online Safety Bill
[9] Section 11 (k) Online Safety Bill
[10] Section 2(1)(h) Prevention of Terrorism (Temporary Provisions) Act (PTA), No. 48 of 1979
[11] Section 291A of the Penal Code
[12] https://www.sundaytimes.lk/230709/columns/on-courageous-judicial-reasoning-and-sri-lankas-iccpr-act-524888.html
[13] https://www.newswire.lk/wp-content/uploads/2023/07/%E0%B6%91%E0%B6%A0%E0%B7%8A.%E0%B7%83%E0%B7%92.%E0%B6%8A.%E0%B6%B6%E0%B7%93.%E0%B6%92.-1335-23.pdf
[14]https://web.archive.org/web/20181015114522/https://www.channelnewsasia.com/news/singapore/select-committee-on-deliberate-online-falsehoods-79-hearings-10029818
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