ECONOMYNEXT – The Human Rights Commission of Sri Lanka (HRCSL) has asked that the government reconsider the timing of a controversial ‘Online Safety Bill’, noting that institutional capacity for interpreting and applying existing laws in good faith should precede any new legislation.
“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 related fundamental rights of the people of Sri Lanka,” HRCSL chairman Justice L T B Dehideniva said in a letter addressed to Public Security Minister Tiran Alles with President Ranil Wickremesinghe on copy, dated October 02.
While acknowledging the need to make online spaces in Sri Lanka safer for citizens as a “valuable legislative objective”, the HRCSL said law enforcement authorities in Sri Lanka have encountered significant challenges in interpreting and applying existing provisions of criminal law applicable to the online activity of citizens, with the most significant example being 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,” the HRCSL said.
The commission made the following recommendations to the minister:
- 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.
- 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’.
- 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.
- 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.
- 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.
- Experts appointed to assist police investigations should not be vested with police powers, as they may be private actors who are not publicly accountable.
- 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.
(Colombo/Oct02/2023)