Lawyers warn of death knell for internet, freedom of expression by online safety bill

• The petitioners warned that the Bill provides very little online safety but is drafted to stop people from expressing ideas and views on the internet and social media
• They showed how the Bill allows a five-member Commission to take down within 24 hours any post that they consider to be a false statement and warned that allowing five people who are not even part of the judiciary to decide on what is true or false is a very dangerous precedent that is aimed at drastically controlling millions of online users from sharing their ideas and views
• According to the Bill, the refusal to take down a post could result in a jail term imposed by a Magistrate not only on the individual but also on the service provider
• If the Bill goes through, Sri Lanka could lose Google, Facebook, Twitter, Instagram, WhatsApp and even essential services such as Google search, Google Maps and G-mail
• The Bill has disregarded that many of the services used by millions of Sri Lankans are provided by international companies based outside of Sri Lanka who would rather stop the service and leave Sri Lanka rather than being subjected to the risks of this kind of high-handed governmental actions
• The lawyers warned that the Bill presented by the Minister of Public Security will be the death knell not only of freedom of expression but also of all businesses that operate on or use online services. They warned that this will give a very bad impression to the country struggling to attract foreign investors

The Bar Association, media institutions, advocacy groups, and more than 40 other petitioners challenged the Online Safety Bill in a two-day hearing before the Supreme Court judges Priyantha Jayawardhene, Achala Wengappuli, and Shiran Gunarathne last week.

The petitioners warned that the Bill provides very little online safety but is drafted to stop people from expressing ideas and views on the internet and social media. They showed how the Bill allows a five member Commission to take down within 24 hours any post that they consider to be a false statement and warned that allowing five people who are not even part of the judiciary to decide on what is true or false is a very dangerous precedent that is aimed at drastically controlling millions of online users from sharing their ideas and views.

This, they said, appears to be a reaction to political dissent that was part of the “Aragalaya”. They cited the example of how the ICCPR Act is abused under the guise of religious harmony, to harass people without managing to obtain a single conviction. Those provisions are repeated in the Bill taking out judicial oversight. Some said that having got rid of criminal defamation in 2003 bringing this Bill now is regressive.

According to the Bill, the refusal to take down a post could result in a jail term imposed by a Magistrate not only on the individual but also on the service provider. The Bill has disregarded that many of the services used by millions of Sri Lankans are provided by international companies based outside of Sri Lanka who would rather stop the service and leave Sri Lanka rather than being subjected to the risks of this kind of high-handed governmental actions that are contrary to internationally recognized standards that will not only drive up their compliance costs but would make compliance impractical.

If the Bill goes through Sri Lanka could lose Google, Facebook, Twitter, Instagram, WhatsApp and even essential services such as Google search, Google Maps and G-mail. Some others bemoaned that the Bill has chosen to ignore that this kind of control has not worked elsewhere but highlighted to a danger of these being replaced by other companies that do not have privacy and safety precautions built in allowing anybody to eavesdrop and spy on people’s conversations. In the past there have been rumours of attempts to replace these current services like WhatsApp with other technologies that are hackable and allows clandestine monitoring. There are certain countries that have banned or driven out social media companies that have strict guidelines on freedom of expression to be replaced by service providers with a reputation notorious for not respecting privacy.

Viraj Dayarathne, Additional Solicitor General presented a large number of amendments at the commencement of the hearing which he said would be introduced at the Committee Stage. Many objected to this position saying that this is an attempt to by-pass the Supreme Court from making a determination. If the Bill is going to be drastically changed at the Committee Stage the proper course of action is to withdraw this Bill and present a fresh Bill with the changes so that the people would have a chance to challenge the Bill. Some said that the proposed amendments do not reduce the dangers that this Bill poses.

The lawyers warned that the Bill presented by the Minister of Public Security will be the death knell not only of freedom of expression but also of all businesses that operate on or use online services. They warned that this will give a very bad impression to the country struggling to attract foreign investors. Citing several key provisions in the Constitution as being violated, it was the common contention of the petitioners that the Bill has to be approved at a referendum if the government still wants to persist going down this route.

In the meantime, there were several social media posts by several individuals refuting that they were involved in the drafting of the Bill. Attempts by this paper to ascertain the names of those who in fact drafted this Bill was not successful.