HRCSL urges caution over Online Safety Bill

The Human Rights Commission of Sri Lanka (HRCSL) has addressed a letter to the Minister of Public Security Tiran Alles expressing their preliminary observations and recommendations regarding the controversial Online Safety Bill, which was published in the Official Gazette on September 18, 2023.

The HRCSL, while recognizing the importance of enhancing online safety for Sri Lankan citizens, raised concerns over the proposed legislation. 

The Commission said it firmly believes that bolstering the capacity of law enforcement agencies to interpret and enforce existing criminal laws in good faith should be prioritized before introducing new legislation with criminal offenses related to online activities.

The HRCSL's preliminary observations and recommendations are aimed at ensuring that the Online Safety Bill aligns with the Fundamental Rights chapter of the Sri Lankan Constitution. Key recommendations put forth by the HRCSL include:

1. The Bill should avoid criminalising statements deemed merely to be ‘distressing’ to persons, as feelings of ‘distress’ can vary in degree and can be highly subjective. Remedies for such injury are best left to civil proceedings wherein damages can be sought by the injured person.

2. The proposed Online Safety Commission should be appointed through an appointment mechanism that guarantees its political independence. This Commission should not be vested with quasi-judicial powers, nor with powers to designate online locations as ‘declared online locations’.

3. The provisions in the Bill that set out procedures for adverse decisions to be made against persons should be consistently revised to ensure that such persons be afforded an opportunity to be heard in keeping with the rules of natural justice.

4. The various offences in the Bill that relate to ‘prohibited statements’, which incite others to commit offences, already found in the Penal Code Ordinance, No. 2 of 1883, need to be either removed due to such new offences in the Bill being superfluous, or substantially revised in terms of their precision, and the rationality, reasonableness, and proportionality of the penalties imposed.

5. Clear criteria for the classification of ‘inauthentic online accounts’ should be included in the Bill in a manner that preserves the freedom of online users to remain anonymous, and to engage in parody or satire.

6. Experts appointed to assist police investigations should not be vested with police powers, as they may be private actors who are not publicly accountable.

7. The HRCSL welcomes the introduction of a new offence on child abuse through online means and encourages the Ministry to work closely with the relevant ministries dealing with the subjects of Justice and Child Affairs to introduce such an offence through a separate enactment.

The HRCSL welcomes input and feedback from stakeholders and the public regarding the Online Safety Bill. Comments and suggestions are requested to be submitted in Sinhala, Tamil, or English on or before October 17, 2023.