The report “Social Media Regulation and the Rule of Law: Key Trends in Sri Lanka, India, Bangladesh”, which was launched recently in Colombo, examines the balance between state security, human rights, and the role of social media across these South Asian nations. This collaborative effort involves Konrad Adenauer Stiftung’s Rule of Law Programme Asia, LIRNEasia Sri Lanka, the Centre for Communication Governance (CCG) at the National Law University Delhi (NLUD) India, and the School of Law at BRAC University Bangladesh. The report provides several crucial observations and recommendations for policymakers and stakeholders alike:

Key observations from the report:

• Bangladesh and India provide conditional liability exemptions for third-party content hosted by intermediaries, but recent legislative trends suggest a weakening of safe harbour protection.
• Across all three countries, centralisation of power with the executive is evident, resulting in regulatory frameworks lacking effective judicial and parliamentary oversight over blocking orders, internet suspensions, and user data requests.
• The centralisation of power with the executive has also fostered a lack of transparency and accountability in government actions, often justified by state security interests.
• Censorship under the guise of state security concerns has curtailed legally permissible speech in all three countries, highlighting issues with overly broad and vague language, used to codify online and general speech-related offences.

 

Key recommendations of the report:

• Precise definitions and narrow scope: Adopt precise and narrow definitions of online harms and limit national security exceptions to reduce discretion and arbitrariness in enforcement.
• Safeguards against abuse of state power: Strengthen safeguards against potential state abuse of power by implementing measures such as ex-ante judicial approval, ex-post judicial review, independent oversight, public disclosure of information, fair hearings, and accessible grievance resolution mechanisms.
• Reform for online safety and ensuring greater platform accountability: Overhaul the social media regulatory framework to prioritise online safety through preventive measures that enforce platform accountability and long-term reform.
• Multi-stakeholder approach: Embrace a multi-stakeholder approach to policy making, ensuring diverse perspectives are considered.
• Capacity building: Invest in capacity building for all stakeholders to cultivate technical and subject matter expertise.

Emphasising the report’s significance, Stefan Samse, Director of KAS Rule of Law Programme Asia, said “the report holds immense value to rule of law and platform regulation as it underscores legal frameworks governing cyberspace and social media platforms thereby upholding principles of accountability, transparency, and inclusivity.”   He further added that as much as Asian countries look at developments in Europe when it comes to platform or data governance, for example with the GDPR, European law makers are closely following the conversations in Asia.

The launch included a panel discussion featuring experts such as Saliya Pieris – Former President, Bar Association of Sri Lanka, Bhavani Fonseka – Senior Researcher & Attorney-at-Law, Centre for Policy Alternatives (CPA), Saritha Irugalbandara – Head of Advocacy, Hashtag Generation, Helani Galpaya – CEO, LIRNEasia, Tavishi Ahluwalia – Programme Manager, Center for Communication Governance, National Law University Delhi, and Saimum Reza Talukder – Senior Lecturer, School of Law, BRAC University. The discussion was moderated by Nalaka Gunawardene – Science Writer and Media Analyst.

The panel discussion provided a comprehensive view of the challenges and complexities inherent in regulating social media while upholding democratic principles and underscored the pressing need for a balanced approach.

At the onset of the discussion, CEO of LIRNEasia Helani Galpaya highlighted Sri Lanka’s landscape, noting that even when LIRNEasia began their research into this report in 2019, there were no specific laws governing online content in that there was no law that could order platforms to take down content. However, the way people accessed and used social media was using a wide range of existing laws, irrespective of whether they were intended for that use or not.

Tavishi Ahluwalia from the Centre for Communication Governance at National Law University, Delhi (CCGNLUD), elaborated on India’s regulatory framework, noting the absence of significant conversation and evidence-based policy formulation regarding online content regulation. She also highlighted the tight grip of state security imperatives on the information ecosystem in her country. “In India, state security imperatives control the information ecosystem, risking human rights, free speech, and privacy. This includes internet shutdowns, censoring dissenting content, and protests through executive orders,” she stated.

Saritha Irugalbandara from Hashtag Generation Sri Lanka raised critical questions about the effectiveness of laws purportedly designed to protect vulnerable groups, like women and children. She pointed out that without trustworthy institutions, such laws fail to provide real protection.

“Protecting ‘women and children’ was touted when bringing the Online Safety Act (OSA). What is protection in Sri Lanka when a woman or a child cannot go to a police station to report a case when your class, race, ethnicity, religion, language are still barriers to seeking protection from the authorities that are duty bound to provide protection?” she asked. Saritha pointed out that stricter laws are not the solution. Instead, she advocated for people-centric policies built on trustworthy data.

Sharing her perspectives on lawmaking and judiciary, Bhavani Fonseka from the Centre for Policy Alternatives Sri Lanka (CPASL) emphasised that the speed and nature of lawmaking often depend on who is driving the legislation. She noted that the OSA law gained traction quickly, partly due to social media attention, resulting in many Supreme Court petitions. Bhavani pointed out that judicial outcomes can vary greatly depending on the judges involved, highlighting the need for consistent and fair judicial processes. She stressed the importance of building public trust in lawmaking and ensuring laws serve the public interest rather than powerful individuals.

However, she also questioned the adequacy of relying solely on legal frameworks to regulate social media. “Complete reliance on the law is also not enough. We must question the marketing strategies used by all-powerful governments colluding with other key power wielders to ram through these laws,” she argued.

Saliya Peiris, Former President of Bar Association Sri Lanka, discussed the significant role of the security apparatus in Sri Lanka’s legal enforcement, particularly the police. He highlighted that parliamentarians often push laws that serve their self-interests, leading to a weak rule of law where laws are used for private agendas. He also highlighted the limited public consultation in enacting security-related laws, which often leads to laws that don’t fully align with citizens’ needs. He emphasised creating a balance between protecting citizens’ rights and government obligations, advocating for transparent data practices and accountable institutions.

Drawing attention to the unsettling silence of the corporate sector regarding the OSA, he said; “some sectors in our society, like corporates, have let us down. The silence on the OSA is telling.” He criticised that the silence from influential corporate entities reveals a troubling disconnect between business interests and the broader societal need for democratic governance and protection of civil liberties.

During the Q & A session, the audience raised several important questions, including the effectiveness of self-regulation by the social media companies versus state regulation and the coexistence of various special laws like the OSA and Personal Data Protection Act (PDPA). The panelists discussed the potential conflicts and emphasised the judiciary’s role in reviewing and potentially nullifying laws that are inconsistent with constitutional principles.

In conclusion, the panel discussion highlighted the complex landscape of online content regulation in South Asia, underlining the need for a balanced and inclusive approach that considers all stakeholders.

The moderator, Nalaka Gunawardene, played a crucial role in the discussion, by guiding the panel through the topic. His thoughtful questions and comments helped bring out key points from each panellist, making the discussion more insightful.

The full report provides comprehensive insights and can be accessed here.

Watch the full video recording of the event and panel discussion.