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ECONOMYNEXT – The Centre for Policy Alternatives (CPA), one of the entities that petitioned Sri Lanka’s controversial ‘Online Safety Bill’, has expressed deep concern over committee-stage amendments proposed to the bill.

Hours after the parliament’s deputy speaker announced a Supreme Court verdict on the constitutionality of the bill, the CPA said in a statement that the proposed amendments could drastically change the initially gazetted bill, straying from its original ‘merits and principles’, which would be against article 78(3) of the constitution.

The Supreme Court has determined that the bill is not inconsistent with the constitution and can be passed in parliament by a simple majority subject to amendments made to 31 of its provisions.

Deputy Speaker Ajith Rajapakse reading the Supreme Court determination said Tuesday November 07 morning that, if sections 3, 5, 7, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 36, 37, 42, 45, 53 and 56 of the bill are amended at the committee stage, it can be passed with a simple parliamentary majority.

Otherwise, the aforesaid provisions of the draft bill must be passed by a special majority in parliament, according to the court’s determination, as per Section 84(2) of the constitution.

The bill was challenged in the Supreme Court in terms of Section 121(1) of the constitution. The CPA was among parties that challenged the constitutionality of the bill.

Related:

Sri Lanka’s CPA challenges controversial Online Safety bill

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According to the CPA, on October 18, during the hearing on the constitutionality of the Online Safety Bill, the Attorney General’s Department of Sri Lanka had produced to the Supreme Court a series of amendments that the government proposed to move during the committee stage when the bill was to be taken up in parliament. These amendments would make substantial alterations to the bill that was gazetted.

The CPA said that several of the amendments also deviate from “the merits and principles” of the originally gazetted bill and thus, are in contravention of Article 78(3) of the 1978 Constitution of Sri Lanka. Subsequently, such substantial change requires the government to withdraw the currently proposed bill and re-gazette the amended version, the organisation said.

The “most pertinent” of these changes are as follows, according to the CPA:

1) Removal of “Certain Statements of Fact” The originally gazetted OSB consistently makes reference to the vague terminology of “certain statements of fact”. This has now been replaced by the term “prohibited statements” which are defined by the offences set out in Part III of the OSB. This change is exemplified in the differences between the original Preamble of the OSB and the proposed amendment:

Notably, this change is also seen in the Long Title, Clause 3, Clause 11(b) and the Part IV Heading.

2) Changes to the Objectives of the Bill

Problematically, Clause 3 of the original OSB set out its objectives as including protecting persons from statements that may be “threatening, alarming or distressing”. Such vague terminology could have been arbitrarily misused by the Government due to their inherent conceptual uncertainty. These words have now been removed and replaced whereby it is now an objective of the OSB to “protect persons against damage caused by the communication of prohibited statements”. While significantly changing the original objective of the OSB, this new amendment continues to adopt the broad and imprecise terminology of “damage”.

The objectives of the Bill have been used as a cover for far-reaching regulatory action initiated by the Minister. For example, the Government sought to justify the legality of the Prevention of Terrorism (De-radicalization From Holding Violent Extremist Religious Ideology) Regulations No.01 of 2021 based on the broad objectives of the Prevention of Terrorism Act. Though the4 Online Safety Bill has been initiated under the guise of ‘protection’ of the public from online harms, the threat of the Government looms larger.

3) Entry of the Constitutional Council in Appointments and Removals of Commission Members

Previously, Clause 5 of the OSB set out that the Executive President of Sri Lanka appointed the five members of the Online Safety Commission (OSC) with the only criteria being that those members have qualifications and experience in the fields of information technology, law, governance, social services, journalism, science and technology or management. Additionally, the President held the sole authority to accept the resignation of or remove the members of the OSC. However, the proposed amendment now makes such appointment and removal of members of the OSC by the President subject to Constitutional Council approval:

4) Changes to Voting Procedure

The gazetted OSB provides in Clause 9(5) that all decisions made by the Online Safety Commission would be decided by a majority vote of the members. The proposed amendment instead states that all decisions would be reached by a majority vote of the members of the OSC “present and voting at the meeting at which the decision is taken”. Since the quorum for a meeting of the OSC is only 3 members, technically, decisions can be made with only 2 members of the OSC supporting such a decision.

5) Expansion of Powers of the Online Safety Commission The amendment to Clause 11(i) of the OSB by Clause 11(h) would have the effect of enhancing the role of the Online Safety Commission from a regulator of ‘prohibited statements’ to an autonomous investigative agency:

The gazetted Bill provided for some judicial control in the investigative functions of the Commission. The proposed amendment would give the OSC its own unique investigative powers and remove the minimum judicial controls proposed in the original Bill.

Pointedly, this pattern of expanding functions is seen in Clause 26(9) of the proposed amendment to the OSB, which now adds that in case of an individual or an internet intermediary non-compliance with notices issued by the OSC, the OSC “may apply to the Magistrate’s Court by way of petition and affidavit to obtain an order directing such person… to comply”.

In a similar fashion, Clause 31(3) now sets out that a person who fails to comply with the ‘code of practice’ issued by the OSC and consequently causes “wrongful loss to any other person, shall be liable to pay damages by way of compensation to the person who suffered such loss”. It would seem that the OSC is now capable of legislating for online practices.

As opposed to mitigating against the arbitrary discretion bequeathed to the Online Safety Commission by the originally gazetted OSB, the amendments only serve to further enhance those powers. 6) Alterations to Punishments for Communicating ‘Prohibited Statements’ Part III of the OSB contains various offences, many of which amount to ‘prohibited statements’, and the punishments attached to each. The proposed amendments to the OSB make wide alterations to the punishments for offences under the OSB, as follows:

These offences are similar to already existing provisions in the Penal Code, except that those in the Bill deal with actions done online (as opposed to the Penal Code). However, the punishments specified in the Bill are harsher than what is specified for the corresponding offence in the Penal Code. Additionally, Clause 16 which criminalized communicating a false statement with deliberate intent to wound religious feelings has now been deleted.

7) Enhancement of Minister’s Discretion A significant amendment is proposed to Clause 37(1) of the OSB. The gazetted Bill authorised the Minister to appoint private individuals as “experts” to assist in the investigation of the commission of an offence subject to the courts deeming such appointment “necessary”. However, the amendment removes this judicial safeguard and now allows the Minister to appoint the so-called “experts” without prior approval by the courts:

8) The Commission’s Ability to Institute Criminal Proceedings

Clause 42 of the OSB is to be amended to allow the OSC to directly institute criminal proceedings against any citizen. This is a significant deviation from the powers originally conceived for the Commission, in the originally gazetted Bill. It is also apparent that the amended Clause 42(1) is convoluted and incoherently framed:

(Colombo/Nov07/2023)

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