In a significant development, the Human Rights Commission of Sri Lanka (HRCSL) has addressed concerns surrounding the proposed Online Safety Bill, which was published in the Official Gazette on September 18, 2023. The HRCSL’s preliminary observations and recommendations were conveyed in a letter sent to Hon. Tiran Alles, Minister of Public Security, on October 2, 2023.
The HRCSL began its statement by acknowledging the importance of creating safer online spaces for the citizens of Sri Lanka. However, the commission expressed its opinion that before introducing new legislation with criminal offenses related to online activity, the country should first focus on enhancing the capacity of law enforcement authorities to interpret and apply existing criminal law in good faith.
The HRCSL’s key recommendations on the Online Safety Bill aim to ensure its compatibility with the fundamental rights chapter of the Sri Lankan Constitution:
- Avoid Criminalizing ‘Distressing’ Statements: The HRCSL suggests that the bill should steer clear of criminalizing statements merely deemed ‘distressing’ to individuals, as the level of distress can vary greatly and be highly subjective. Instead, it recommends that remedies for such harm should be pursued through civil proceedings, where injured parties can seek damages.
- Political Independence of the Online Safety Commission: The HRCSL recommends that the proposed Online Safety Commission should be appointed through a mechanism that guarantees its political independence. It should not possess quasi-judicial powers or the authority to designate online locations as ‘declared online locations.’
- Procedural Fairness: The HRCSL emphasizes that provisions in the bill related to adverse decisions against individuals should be consistently revised to ensure that those affected have an opportunity to be heard, in accordance with the principles of natural justice.
- Review of Offenses Relating to ‘Prohibited Statements’: The HRCSL suggests that the bill should either remove or substantially revise the offenses concerning ‘prohibited statements’ that already exist in the Penal Code Ordinance of 1883. This revision should address precision, rationality, reasonableness, and the proportionality of penalties.
- Clear Criteria for ‘Inauthentic Online Accounts’: The HRCSL calls for clear criteria in the bill for classifying ‘inauthentic online accounts’ while safeguarding the freedom of online users to remain anonymous and engage in parody or satire.
- Powers of Expert Appointees: The HRCSL recommends that experts appointed to assist in police investigations should not be vested with police powers to maintain public accountability.
- Child Abuse Offense: The HRCSL welcomes the introduction of a new offense related to child abuse through online means and encourages the Ministry to collaborate with relevant departments dealing with Justice and Child Affairs to enact this offense separately.
The HRCSL has also welcomed input and feedback from relevant stakeholders and the public regarding the Online Safety Bill. They have requested that comments and suggestions be submitted in Sinhala, Tamil, or English by October 17, 2023.
As Sri Lanka grapples with the complex challenge of regulating online spaces while safeguarding fundamental rights, the HRCSL’s recommendations will play a pivotal role in shaping the future of online safety legislation in the country. The public discourse and consultation process are expected to shed further light on this important issue in the coming weeks.