The Human Rights Commission of Sri Lanka (HRCSL) thas urged the government to revise the recently gazetted Online Safety Bill. It has made seven recommendations.

In a letter addressed to the Minister of Public Security Tiran Alles, the HRCSL has revealed its preliminary observations and recommendations on the controversial Bill.

The HRCSL has said the general observations and recommendations are presented for consideration in view of revising the Bill to ensure compatibility with the fundamental rights Chapter of the Sri Lankan Constitution.

Text of the HRCSL letter: We write to you with reference to the Bill titled ‘Online Safety’ published in the Official Gazette on 18 September 2023. We have reviewed the said Bill and wish to share our observations and recommendations on the Bill in terms of our mandate under section 10(c) of the Human Rights Commission of Sri Lanka Act, No. 21 of 1996. The said provision empowers the Commission to ‘advise and assist the government in formulating legislation…in furtherance of the promotion and protection of fundamental rights’.

At the outset we wish to acknowledge that making online spaces in Sri Lanka safer for its citizens is a valuable legislative objective. However, we observe that law enforcement authorities in Si Lanka have encountered significant challenges in interpreting and applying existing provisions of criminal law applicable to the online activity of citizens. The most significant example in this regard relates to section 3 of the International Covenant on Civil and Political Rights (ICCPR) Act, No. 56 of 2007. On the one hand, the said provision has not been adequately enforced to address online incitement to violence. On the other hand, the said provision has been misapplied to punish online content that does not constitute incitement. We draw your attention to the Commission’s general guidelines on the scope of section 3 of the ICCPR Act published in August 2019. The Commission wrote to both the Attorney-General and the Inspector General of Police pointing out that section 3 of the Act was not being applied in a ‘consistent and even-handed manner’. However, we observe that this Act continues to be misapplied to online activity that does not constitute incitement. The Commission also wishes to draw your attention to the recent order of the High Court in Case No. HCEBA/1335/2023, in which the Learned High Court Judge A.M. Patabendige made certain key observations with respect to the scope of section 3 of the ICCPR Act and its misapplication in that case.

In view of the foregoing general concern, the Commission invites you to reconsider the timing of the proposed Bill. The strengthening of institutional capacity of law enforcement authorities to interpret and apply the existing criminal law in good faith should precede any proposals to introduce new legislation with criminal offences pertaining to online activity. Proceeding with such legislation without such institutional reform will irreversibly jeopardise the freedom of speech and expression and elated fundamental rights of the people of Sri Lanka.

In any event, the following general observations and recommendations are presented for your consideration in view of revising the Bill to ensure compatibility with the fundamental rights chapter of the Sri Lankan Constitution:

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 Commission 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.