OSA amendments only benefit the internet intermediaries, not the citizenry
Media unions and other interests groups point out that the chilling effects of the legislation on freedom of speech and expression still remain
Last month, the Cabinet approved a list of suggested amendments to its Online Safety Act (OSA) that the Public Security Ministry (PSM) insists are sufficient to alleviate widespread concerns about the controversial law.
But a majority of interest groups, including media organisations, argue that the proposed changes are wholly inadequate and almost exclusively benefit the internet intermediaries, not the citizenry. They question why the PSM restricted the drafting process to a group of four advisers.
They maintain that the legislation—even with these amendments—is flawed and over-broad and that the chilling effects of the OSA on freedom of speech and expression remain.
Not about online safety
Media unions, including the Free Media Movement (FMM) have repeatedly sought to be involved. “In the beginning, we wrote to them (PSM) to withdraw the Online Safety Bill (OSB) and to start a consultative process because we are not against any and all regulation,” said Hana Ibrahim, FMM Convener. “We support online safety and believe there should be a mechanism. But not at the expense of freedom of speech and expression, to this extent.”
The FMM and other media sector representatives, including the Sri Lanka Press Institute (SLPI), had even held discussions amongst themselves and submitted recommendations. “None of them have been taken into account,” Ms. Ibrahim said.
“The government’s online safety mechanism was introduced because the IMF wanted something in place to safeguard people,” she said. “There’s nothing like that in this law. It directly attacks freedom of speech and expression, is aimed at instilling fear and getting people to selfcensor and at preventing another ‘aragalaya’ for which the main mode of communication was social media.”
These sentiments were widely echoed— alongside the nagging question of why consultations were not opened out to others to whom online security is deeply relevant.
Narrow consultations
In September last year, after learning that the OSB was soon to be tabled in Parliament, media organisations united in a collective and demanded that the government slows down.
They were the FMM, Tamil Media Alliance, Sri Lanka Muslim Media Forum, Sri Lanka Working Journalists Association, the Young Journalists’ Association, Federation of Media Employees’ Trade Union, South Asia Free Media, South Asian Women in Media and Internet Media Action.
“In one voice, we asked the government not to bring in this legislation quickly but to start a consultative process,” one representative said. “The Minister [Tiran Alles] did not give us any time”.
After the OSB was tabled in October last year, the media collective paired up with civil society and trade unions to form the ‘Media, Civil Society and Trade Union Collective Against Repressive Laws’, as more legislations (such as the Broadcasting Authority Bill) were on the way.
“We again wrote to the Minister,” the representative said. “He didn’t give us an appointment but, through the back door, invited a team who took a group to meet the Minister.”
That team was Factum—a consultancy agency led by Ranga Kalansooriya, the former Director General of Information. Present were the FMM, some civil society groups and the SLPI. But even these parties were excluded after the preliminary discussion.
Factum has since sponsored trips by PSM officials—including its Director Legal and the Ministry Secretary—to Singapore to meet, among others, META (formerly TheFacebook, Inc.) and the Asia Internet Coalition (AIC) which represents the internet and social media industry. These companies are opposed to the OSA in its current form because it affects their earnings.
Sanjana Hattotuwa has researched online harms and related policies for over a decade. He pointed out that compliance with the existing law, which includes proactive monitoring, will be expensive for internet intermediaries (such as internet service providers, search engines and social media platforms).
“Once something is flagged with them
under threat of criminal proceedings, it costs money for them to identify and take it down,” he said. “It costs money to respond to coordinated inauthentic behaviour, if reported, to investigate the accounts involved and to determine how and if conforming to OSA requests are compatible with their own human rights guidelines.”
But as the OSA makes internet intermediaries criminally liable, they are forced to act under threat of penalty.
Who do the amendments serve?
The OSA was passed on January 24 and became effective on February 1. The Minister vowed in Parliament to introduce amendments. But his only concern was winning over global tech which warned that the OSA, in its current form, hinders Sri Lanka’s digital economy including online commerce.
Therefore, the only amendments Minister Alles accepted—and which Cabinet has now approved--are the ones drafted by Ministry officials and the group of four comprising Jagath Wickramanayake, PC; Nalaka Gunawardene, media analyst; Jayantha Fernando, former general counsel of Sri Lanka’s Information and Communication Technology Agency; and Mr. Kalansooriya.
These proposals are one-dimensional and aimed at protecting the interests of internet intermediaries, legal and industry experts said, while hazarding that the experts were good faith actors.
“The amendments are primarily focused on internet intermediaries and internet service providers (ISPs),” observed Ashwini Natesan, Tech and Communication Law Consultant for SLPI. “The obligations that were considered onerous, including registration and complying
with codes of practice, have been amended.”
“Now, the internet intermediaries and ISPs can come with their own, voluntary industry code, failing which the [Online Safety] Commission would formulate one,” she said. “But ISPs are locally licensed companies providing internet connectivity whilst the internet intermediaries are platform providers such as social media platforms. It is unclear how both entities can produce a common industry code.”
“While I’m appreciative that some people are trying to salvage this, I think it is the wrong way to go about it,” said Dr. Hattotuwa. “It gives the government the leeway to keep this law on the statute books. That is very, very dangerous. The OSA is unsalvageable. It is fundamentally, irrevocably, irrefutably flawed.”
The proposed amendments largely free internet intermediaries of criminal liability for non-compliance, even compliance, with requests made by enforcers under the OSA.
“The reason for these amendments is because the government was unequivocally told the OSA will be a death blow to all online platforms in the country, that it is incompatible with their operational procedures,” Dr. Hattotuwa said. “The basis is to protect industry, not to protect us. Profit does not necessarily accommodate rights.”
A new subsection has been proposed that enables companies to service OSA requests without criminalising participation or non-participation. “I can’t even take the intermediaries to court and question them for complying with an OSA request on the basis that it violated my fundamental rights because they will also be indemnified from that!” he said.
Essential to protect digital economy
There is no argument, however, that the law must accommodate the concerns of internet intermediaries. The proposed deletions and additions align with the necessity for these companies to stay in the country—for e-commerce, for cloud services, etc.
“The point has been made that if you criminalise non-compliance, or what the Commission determines to be inadequate compliance, then none of these parties will cooperate,” Dr. Hattotuwa said. “Therefore, you must create some sort of incentives structure for them to participate in legitimate, court-ordered requests that may, or may not, assist in ongoing criminal proceedings.”
“The amendments facilitate that but they are still within the broader remit of a really worrying OSA,” he warned. “Everything else stays the same. It’s just that you’re indemnifying and protecting the industry and the intermediaries.”
The proposed amendments also recommend creating a code of practice where companies, together with the Commission, will help formulate all of the remedies that are to be provided by the Commission.
This suggestion is “a copy-paste of what was launched in New Zealand by Facebook, funded by Facebook”, said Dr. Hattotuwa, who is currently the Research Director at The Disinformation Project based in New Zealand.
“The code of practice is better than the OSA but you’re talking about a shower in the Sahara,” he said. “It is not a relief, just a temporary illusion of something better. But it doesn’t go into some of the fundamental questions about how to make online platforms safer.”
“It is, of course, a good faith proposal to ‘salvage’ what is left of the OSA,” he continued. “Still, the code has a problematic provenance in New Zealand. And a fundamental difference is that, in Sri Lanka, it proposed to be established under the Commission whereas, in New Zealand, there is an independent Commissioner outside of the government and the industry to oversee the code’s implementation.”
A section is proposed to be added criminalising the publishing of “any photograph, audio or video of abusive or phonographic nature relating to a woman without her expressed consent”. “This is a fundamental problem with the OSA,” Dr. Hattotuwa said. What is ‘pornographic’ and who determines that?”
“A lot of stuff is left to very loose interpretation because ambiguity is the strategic intent of the Act,” he mused. “The greater the ambiguity, the more its chilling effect and the more it leads to self-censorship and arbitrary use.”