Kishali Pinto -Jayawardene
Four months ago, President Ranil Wickremesinghe was quick to retort to his detractors, (friendly or otherwise), who were outraged by the Broadcasting Regulatory Commission Bill that he is a media ‘defender’ and, as such, had abolished criminal defamation laws in Sri Lanka.
Presidential assurances and UK precedents
Apparently stung by strident public criticism of badly framed laws, the President rebutted with a deceptively devious attempt at diversion. Reassuring his captive audience at the Homagama Divisional Secretariat, he said that the Government’s (innocent) aim is merely to bring laws that will ‘assist those who are harmed by the media.’
Towards that end, his officials were informed to look at the laws and practices prevalent in the United Kingdom (UK). The Attorney General had been instructed ‘to present the Bill in UK terms because we can obtain precedents in making decisions there’ (See ‘After repealing the criminal defamation law, President firmly vows to uphold the right to freedom of expression, ensuring that it remains intact,’Presidential Secretariat, June 15th 2023).
Certainly, the tortuous language of the President’s media team in framing that sentence for public release left much to be desired.
Nonetheless, the Broadcasting Bill was withdrawn ostensibly for public consultations. However, what gives the lie to those easy Presidential reassurances in Homagama are the actions of his Cabinet thereafter. Take the obnoxious Online Safety Bill for example, following close upon the heels of the Broadcasting Bill and in a far worse form.
Hatchet job of legislative drafting
Apparently, the Bill is on the cusp of being presented to Parliament in a form of shock therapy, just weeks after its contents were made public. In the clammy hands of the Minister of Public Security, this document has no pretensions to being drafted on ‘UK precedents’ or any other precedent. It embodies a hatchet job of legislative drafting by a political establishment under siege, preparing to muster all defences against hell or high water.
Some aspects of the Bill were discussed in last week’s column spaces. But its contents are like a particularly rotten onion. As much as you peel back one layer of hideously framed clauses, those are followed by yet other worse adventurist attempts at ‘law-making.’
The President may well advise himself as well as his Ministers to cursorily glance at the UK’s Online Safety Bill. This is a world apart from its crude Sri Lankan namesake.
That is if those in power can read and comprehend what a genuine profile of an ‘online safety law’ looks like. Coincidentally, the UK Bill passed the scrutiny of Parliament this month and is awaiting royal assent. But in every other way possible, it is as different as can be from the farce that we see here.
The UK Bill came after a comprehensively consultative process lasting almost four years with not only global social media platforms but also lawyers, activists and concerned organisations.
Protecting a Government ‘frightened out of its skin’
Its contents were substantially revised, incorporating amendments proposed by the public, the House of Commons and the House of Lords. The UK’s Office of Communications, the state regulator, will be tasked with implementation and enforcement. Appropriately narrow in scope, the Bill enables law enforcement agencies to promptly tackle illegal online content on social media platforms with a particular focus on protecting children.
In contrast, Sri Lanka’s Bill seeks to protect the Government which is apparently ‘frightened out of its skin’ as I see it, by the possibility of another ‘aragalaya’ (mass protest). And there we have the matter in a nutshell. The Bill’s vague and indeterminate ‘objectives’ were discussed last week which includes protecting persons from ‘alarming or distressing’ statements, whatever that may be.
In fact, even its long title is atrociously worded. This says that the purpose is to prohibit ‘certain statements of fact.’But even that most draconian law in Singapore, the Protection from Online Falsehoods and Manipulation Act (POFMA) which remains the delight of anti-freedom of speech autocrats across the world, introduces its purpose more cannily as prohibiting ‘false statements of fact.’ If the Singapore law was bad, its proposed Sri Lankan counterpart is infinitely worse.
Maliciously drafted clauses
Clauses of the Sri Lankan Bill defining prohibited and false statements are extensive. As discussed last week, this includes the same prohibited behaviour in the International Covenant on Civil and Political Rights Act (ICCPR Act, 2007) which has been ruthlessly weaponised against critics. And to add insult to injury, we have a whole host of other clauses that are equally if not more dangerous.
Clause 14 prohibits ‘maliciously or wantonly giving provocation by false statement to cause riots.’ It would be amusing if it was not so alarming that this offence is deemed to arise (albeit with a lesser penalty) even if an actual riot was not caused in consequence thereof. All that is required is the non-independent Online Safety Commission’s assessment of the same. Clauses 15, 16 and 17 relates respectively to false statements that cause a ‘disturbance’ of a religious assembly or deliberately ‘wound’ and ‘outrage’ religious feelings.
At least Section 3 (1) of the ICCPR Act prescribes ‘incitement’ to discrimination, hostility or violence as part of the offence even though arrests and prosecutions by the police seldom take that element into account. However in this Bill, the idiocy of acts deemed to constitute an offence defies comprehension. In what way can a ‘disturbance’ or the ‘intent’ to ‘wound/ outrage’ feelings be construed criminally?
Allowing state agents to run wild
Virtually each day, Sri Lankan citizens are ‘outraged,’ ‘wounded’ or ‘disturbed’ by the actions of politicians. It is arrant nonsense for such non-definitive colloquial phrases to determine legal consequences. Criminalizing conduct in this way drags Sri Lanka’s penal law into murky and untested waters. The scope that is allowed for state agents to run wild cannot be exaggerated.
Meanwhile Clause 21 prohibits the wilful making of false statements which, interalia, induces any person to cause an offence against the State or ‘the public tranquility.’ Clause 22 criminalizes the making of false statements with intent to cause harassment etc. Harassment is defined as any act which ‘has the effect of threatening, alarming or distressing’ a person as well as most peculiarly, ‘violating a person’s dignity.’
The illustrations that follow relate to private interpersonal relationships, But absent a properly rigorous framing, this clause could well be used to cover political critique of a ‘target person.’ This amounts to, on the face of it, bringing criminal defamation back despite the President’s claim in Homagama that he ‘abolished’ it. That must be objected to in principle, regardless of the fact that the clause in question is confined to ‘false’ statements.
Setting a terrible precedent in State overreach
Overall, an unabashedly President-appointed (and liable to be dismissed) Online Safety Commission assesses these highly contested questions. This is where the horror of this Bill lies. Upon being moved by ‘any person’ and after satisfying itself of a violation, the Commission is not obligated to observe the rules of natural justice and hear the purported offender.
Instead, it can issue notice to prevent circulation of the content which must be obeyed within twenty four hours. If not, the internet access service provider or internet intermediary is issued a similar notice. The purported offender can move court only thereafter, almost as an afterthought. Disobedience to a Commission directive ‘within twenty four hours’ may attract a five year jail term and/or fine.
What is truly frightening is the Orwellian precedent that this sets for the future