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| Illustration: Barry Downard |
Lawyers warn of death knell for internet, freedom of expression by online safety bill
23 October 2023 Daily Mirror LK
·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.
Online Safety Bill and Anti-Terror Bill: law making to end democracy and fundamental rights
Monday, 23 October 2023 Daily FT
The proposed laws are a clear indication that the Government fears that its indifference to the grave hardships of the people in this economic crisis will not be tolerated, and will be resisted
A group of 125 civil society leaders and 37 organisations and collectives has issued the following statement on the draconian Online Safety Bill and the Anti-Terror Bill alleging both will put an end to democracy and fundamental rights. They called upon the Government to withdraw both bills and engage in a public conversation with qualified persons and citizens on public policy. They also called upon the Members of Parliament to vote against these two bills. Following are excerpts of their
The Government has included two Bills titled ‘The Online Safety Act’ (OSA) and the ‘Anti-Terror Act’ (ATA) in the Parliamentary Order Paper dated 3 October. Both Bills have sweeping provisions to seriously curtail and even violate the freedoms of expression, free speech, right to information, assembly and association. Both present fatal threats to democracy and fundamental rights in this country.
The OSA proposes to create an ‘Online Safety Commission’ appointed by the President and dismissed at his will and pleasure, which is given sweeping powers to determine if a statement is a ‘false statement’ and take measures to ‘prohibit’ it from circulation. The Commission has powers to issue directives to persons and online service providers to remove or block content, sites and locations. If its directives are not complied with, penal sanctions including prison sentences and fines can be imposed. The OSA will embed a culture of state harassment of online journalists and activists, artists, scholars, writers, trade unions, civil society organisations, including women’s groups, human rights defenders, professional organisations, and any citizen who dares to criticise Government and disagree with its policies and governance.
Not only the Fundamental Rights of speech, expression and access to information, but the right to claim them through the connected rights of freedom of protest and association will be curtailed and destroyed by the State. The inevitable self-censorship of citizens and communities that can follow, will embed authoritarian and dictatorial governance that has no respect for the sovereignty of the Sri Lankan people that is a foundational value in our Constitution. The lack of accountability and corruption in governance that we see today will become a permanent aspect of governance. The impact on the life of a Sri Lankan citizen and another generation will be far reaching and hard to reverse. This will complete Sri Lanka’s transformation into a complete Orwellian State where what the ‘truth’ is will be determined and imposed exclusively by the State.
The ATA will be a reinvention of the draconian Prevention of Terrorism Act (PTA), which it claims to repeal. Under the ATA the definition of what comprises ‘terrorism’ is so vast and vague that any act can become an act of terror if the State deems it so. Any protest or strike can become an act of terror. Any instance of free speech can be deemed as inciting ‘terrorism’. Any organisation can be proscribed as a ‘terrorist’ association. Any publication can be deemed a ‘terrorist’ publication. Anyone associated with ‘terrorist’ suspects, by virtue of association and knowledge, can be punished. Detentions will be made through executive orders and the military has been given powers to arrest and detain, powers which it did not have even under the PTA. The ATA will create a permanent state of emergency where Sri Lanka will effectively become a military state functioning under the exclusive dictate of the Executive.
Repealing the PTA has been a promise made to the nation and the global community of nations represented at the United Nations. What this bill does however is to increase the power of the State to repress citizens and deny the constitutionally guaranteed Fundamental Rights of the People.
The proposed laws are a clear indication that the Government fears that its indifference to the grave hardships of the people in this economic crisis will not be tolerated, and will be resisted. The citizens of this country were not responsible for this manmade crisis. Instead of taking the responsibility for the crisis, the Government is making use of debt restructuring to make laws that encourage governance that is not accountable to the people and tries to legalise misuse of State power. Under the guise of domestic debt restructuring savings of the working people are being stolen. Under the guise of labour law reforms proposals are being pushed to bring an end to the right to unionise and exploit women’s labour.
Women’s groups and activists have made an important contribution to ensuring that our laws and policies on women’s work conform to international ILO and other standards, and our Constitution. The proposed labour laws target women disproportionately, and will eliminate all these gains, embedding and encouraging exploitation of their labour. Even criticism of the transformation will be prevented by these repressive laws.
We are still suffering the impact of repressive laws of the past, enacted in the name of national defence, stability, economic growth and development. What Government needs to do, is to learn from the past and engage in enlightened law making. That agenda must repeal repressive laws and respond to embedded corruption, foster national unity and equitable economic growth that benefits all citizens in our plural society. The Government’s intention in passing laws that violate the basic values of democratic governance in our Constitution, shows that they want to change course, and establish a political dictatorship. The pretext is debt restructuring and economic recovery from bankruptcy.
We as women’s groups and other civil society groups and concerned citizens call upon the Government to withdraw ALL these Bills from Parliament. Government must engage in a process of consultative law making that we saw when the Right to Information Bill was passed. That law has received praise for strengthening accountable governance in local and international reviews of governance in our country. MPs, whether or not they are unelected by the people, and come to Parliament from a national list, take an oath of office that must respect the responsibilities of office under the basic law of our country the Constitution. According to the Preamble to that document, their duty is:
“to humbly acknowledge (their) obligation to ratify the immutable republican principle of representative democracy, assuring to all people Freedom Equality Justice Fundamental Human Rights and the Independence of the judiciary”. (PREAMBLE Constitution 1978)
We call upon the Government to withdraw all these bills, and engage in a public conversation with qualified persons and citizens on public policy in these important areas. We call upon all Members of Parliament to fulfil the above stated Constitutional mandate and vote against these repressive laws.
