Online Safety Law: Amendments ready, but rights groups' concerns unaddressed

Public Security Minister says no more consultations needed, but Justice Minister says he will meet civil society and others concerned to discuss issues

HRCSL joins growing opposition inside and outside the country; says Supreme Court's several recommendations not included in the Act

Amidst a salvo of statements against Sri Lanka’s Online Safety Act (OSA) from global and domestic interest groups, the government reiterated this week that it would introduce amendments to the law.

But while Justice Minister Wijeyadasa Rajapakshe took a conciliatory stance, saying there would be discussions with civil society before changes were made, Public Security Minister Tiran Alles, who is directly in charge of online safety, said there was “nothing more to have any consultations.”

“We have finished consultations and are doing the draft amendments,” he told the Sunday Times yesterday, maintaining that concerns of organisations such as the Asia Internet Coalition (AIC) have been taken on board.

“Whatever amendments we can bring as per their suggestions will go to the Cabinet, to the Legal Draftsman and to the Attorney General before they are gazetted,” he continued, explaining the process he intends to adopt. “There will be two weeks if anyone wants to go to the Supreme Court, and then it will be presented to Parliament.”

Minister Alles did not give a date as to when the Cabinet would receive the draft: “I haven’t decided. We’ll see.”

Have concerns really been taken on board?

The AIC’s concerns were overarching. In September last year, it called the entire bill “a draconian system to stifle dissent and Sri Lankans’ rights to free expression”. It urged the government to work closely with industry stakeholders on regulations that are “proportionate, reasonable, consistent with international best practices, and most importantly, support the growth of Sri Lanka’s nascent digital economy”.

During the parliamentary debate on the law in January this year, the AIC refuted Minister Alles' claims that it had agreed to the version that was presented. The coalition also revealed it had made substantial contributions throughout the legislative process including by hosting Public Security Ministry officials at its “Online Safety Forum” in Singapore.

The AIC’s last submission to the Public Security Ministry was on January 8, 2024. In a statement released after the passing of the law, it said the legislation had the potential to undermine Sri Lanka’s digital economy. The law in its current form was “unworkable” and extensive revisions were imperative. AIC members include Google, Yahoo, Meta, Apple, Amazon and LinkedIn.

Meanwhile, Minister Rajapakshe said yesterday that the government would meet with civil society and other concerned parties to discuss their reservations before making the necessary amendments. He did admit, however, that the bill was not under his ministry.

The Justice Minister said the objective was to have “the best law possible with sufficient precautions to prevent it from being abused”.

“We are not making laws for the government; we are doing it for the country,” he insisted. “Tomorrow I will be an ordinary citizen, and my rights also have to be protected. These laws are not just to give extra protection to the ruling party or the president.”

People have concerns about the law, he said, adding that “we will advise the government that we are making laws for the requirements of the people. It must not be done in an ad hoc way.” He pointed out that he had withdrawn the Anti-Terrorism Act owing to widespread representations.

Is the OSA unconstitutional?

The Human Rights Commission of Sri Lanka (HRCSL) on Thursday became the latest body to voice serious apprehension regarding the OSA. The public release of its statement drew Minister Alles’s ire: “There is no point issuing a statement. They should have the backbone to write to us, have a discussion with us and point out what’s wrong. This is a cheap publicity stunt.”

The HRCSL now joins the Sri Lanka Press Institute, the Committee to Protect Journalists, the Association for Progressive Communications, the International Commission of Jurists, the UN Human Rights Office, the Centre for Policy Alternatives, the UN Human Rights Office, the Internet Media Action Collective, Transparency International Sri Lanka, the Bar Association of Sri Lanka, Amnesty International, Sri Lankan opposition parties, and more than 50 local and international civil society organisations that have opposed the law. Several diplomatic missions have also made representations.

In addition to worries about the contents and implications of the OSA (including possible abuse), there is outrage about how it was passed, with disregard to several amendments recommended by the Supreme Court to enable the law to be consistent with Sri Lanka’s constitution.

In its letter to Speaker Mahinda Yapa Abeywardena, the HRCSL pointed out that several sections and omissions in the OSA “appear to be non-compliant” with the Supreme Court’s determination on the Online Safety Bill.

“In its determination on the Online Safety Bill, the Supreme Court found that over thirty clauses in the Bill and certain omissions in the Bill were inconsistent with Article 12(1), and in some cases, Article 14(1) of the Sri Lankan Constitution,” the HRCSL letter said.

Article 12(1) guarantees that all persons are equal before the law and are entitled to equal protection of the law; Article 14(1) relates to the right to freedom of speech and expression (including publication), assembly, association, occupation, movement, etc.

The Supreme Court accordingly determined that the Bill could only be enacted by Parliament with a special majority, the HRCSL tells the Speaker. Only if all the amendments the Court recommended were introduced during the committee stage of Parliament could the Bill be passed with a simple majority.

Missing Supreme Court recommendations

But having carefully reviewed the OSA, the HRCSL found that several substantive amendments proposed by the SC were not in the enacted law. For instance, the Court observed that the introduction of a specific clause that criminalises the communication of false statements with intent to cause mutiny and offences against the State is “overly expansive and not strictly aligned with the intended scope of the proposed law”.

While the spirit of the SC’s opinion appears to be that the said clause in the law should be deleted, it has been retained as Section 16 of the OSA.

Several other instances are highlighted by the HRCSL, stating that it is deeply concerned that the OSA does not fully comply with the SC determination. “Any such omission, and consequently, any remaining inconsistency with the Constitution, would have required that the Online Safety Bill be enacted only with a special majority in Parliament.”

Also this week, civil society organisations withdrew from the Open Government Partnership (OGP) in Sri Lanka—a collaborative effort with the Presidential Secretariat to create Sri Lanka’s third National Action Plan (NAP). They cited “alarming developments in the country that are in direct contradiction to the fundamental principles of the OGP”.

A statement said that recent actions of the government, specifically the passage of the OSA and attempts to introduce a draconian anti-terrorism law despite widespread opposition, “have compelled us to take this principled stance against the suppression of civic space and the violation of fundamental freedoms”.

“Despite our appeals to the government to consider these bills, the Online Safety Bill was recently certified without certain amendments mandated by the Supreme Court in its determination,” the statement said. “This constitutes a breach of constitutional safeguards intended for seeking legal remedies through courts in response to legislative attempts to enact unconstitutional laws.”

As recently as January 11, a statement from President Ranil Wickremesinghe’s office said that the third NAP for the Open Government Partnership would be submitted for Cabinet approval this month. The initiative was halted in 2019 due to political challenges, COVID-19 and the economic crisis, but restarted under the President’s directive as one of his pet projects. The OGP is spread across 75 countries, including Sri Lanka, and aims to bring the government, civil society and citizens together to achieve transparency and accountability.

Several interest groups confirmed this week that they had not been consulted regarding amendments to the OSA. “If the same lack of transparency that afflicted the passage of the law afflicts the drafting of amendments, can we expect the outcome to be any different?” one source questioned. He did not wish to be named.

Despite our appeals to the government to consider these bills, the Online Safety Bill was recently certified without certain amendments mandated by the Supreme Court in its determination. This constitutes a breach of constitutional safeguards intended for seeking legal remedies through courts in response to legislative attempts to enact unconstitutional laws