News
Amendments to Online Safety Act in progress, experts weigh in
View(s):By Namini Wijedasa
The Public Security Ministry this week tabled in Cabinet a list of proposed amendments to the government’s widely criticised Online Safety Act (OSA), drawn up in collaboration with an informal expert group.
Cabinet approval was granted for all the amendments drafted by the four-member expert team. While the Public Security Ministry (PSM) has also accepted the expansive changes, they must pass muster with the Legal Draftsman (LD), the Attorney General (AG) and the Supreme Court (SC)–if challenged–before going to Parliament.
As an activist involved in the process remarked, optimism can be comforting “but there’s many a slip between the cup and the lip”.
Two major changes
Among the Cabinet-sanctioned changes is the deletion of the OSA’s controversial Section 19 which holds that any person (here or abroad) who communicates “any false statement, with intent to cause any officer, sailor, soldier, or airman in the navy, army or air force of Sri Lanka to mutiny, or with intent to cause fear or alarm to the public, induces any other person to commit an offence against the State or against the public tranquillity” is guilty of an offence and liable to imprisonment, a fine, or both.
With words that are prone to broad interpretation, Section 19 is seen as one of the law’s most contentious clauses.
Separately, it is also proposed to “tighten” the terminologies used in Section 18 to ensure there is no ambiguity related to any person that uses an account under a different name (including journalists, whistleblowers, LGBTQ community and digital marketers that use multiple accounts for boosting).
Section 18 states that any person (here or abroad) who through an online account “cheats by (a) pretending to be some other person; (b) knowingly substituting one person for another; or (c) representing that such person or any other person is a person other than the person really is” commits an offence of “online cheating by personation”.
Under the proposed amendment, however, a person who has an online account under the pretence of being another cannot be penalised so long as he or she does not use it to commit any other offence as prescribed in the OSA.
Among other things, this distinction was crucial to the betterment of the digital economy as marketers use multiple accounts to boost products or services without illegality or harm, maintained Jagath Wickramanayake, PC and Adviser to the Media Law Forum. While it was suggested, the government did not agree to delete Section 18.
Mr Wickramanayake was a member of the four-member group, alongside Nalaka Gunawardene, a media analyst; Jayantha Fernando, digital law expert and former general counsel of Sri Lanka’s Information and Communication Technology Agency; and Ranga Kalansooriya, director of the consultancy agency and think-tank, Factum.
“We are not a formal committee,” said Mr. Gunawardene. “It’s basically back-channel communication. We are in salvage mode.”
The amendments passed by Cabinet are expected to address “most” of the AIC’s concerns as well as those raised by citizens and internet users
A legal challenge
Efforts to amend the law are, however, part of a four-track approach by those alarmed by the possible impact of the OSA in its current form–especially given the “weaponisation” of the International Covenant on Civil Political Rights Act.
“Some are engaging constructively to improve the existing Act,” said a legal source, requesting anonymity. “Some are calling for repeal. Some are raising awareness about the law, what it can and cannot do. And some say the law isn’t even valid and are challenging it.”
M A Sumanthiran, PC and Tamil National Alliance MP, chose the legal path this week. He challenged before the SC Speaker Mahinda Yapa Abeywardena’s certification of the OSA on February 1. The Attorney General (AG) is also a respondent.
Mr Sumanthiran flags concerns about the passage of the Online Safety Bill (OSB) into law, primarily that all the amendments that had been suggested by the Supreme Court to make it compliant with the Constitution had not been included. And he argues that the Act purportedly certified by the Speaker was enacted in violation of constitutional provisions.
At the OSB’s third reading in Parliament, the Speaker declared the Bill passed by a majority vote without granting requests for a division. The OSB did not receive two-thirds support in Parliament–a requirement to ensure its constitutionality in view of the fact that the SC’s proposed changes had not all been incorporated–either at its second or third reading.
Mr Sumanthiran states that, under the Constitution, when a special majority is held to be required by the SC, the Speaker shall only certify a law if the Bill is been passed by such a special majority. This was flouted. Also, the said purported certification was done while Parliament remained prorogued and before there could be an examination of the Bill in comparison with the SC determination.
The OSB was “never passed into law in terms of the Constitution”, the petition states. It details a number of suggestions from the SC determination that were not in the law. And it holds that the Speaker had violated the public trust.
Mr Sumanthiran seeks from the SC an interim order suspending the “purported document published as the Online Safety Act No. 9 of 2024”; a declaration that the certification of the OSA is a nullity in law; that the OSA is ultra vires the Constitution; and a calling for the record from the Speaker to determine on what advice he had acted.
Making the best of a terrible situation
The OSA process was a mess from the start, many observers said. The creators of the original draft are still publicly not known. The Public Security Ministry reportedly inherited the draft “in some shape” and the subject minister, Tiran Alles, then deployed “some private lawyers” to work on it. Anything beyond this is guesswork.
Attempts to sharpen and improve the OSB between the SC determination and the Parliamentary debate on January 23-24 this year failed because the AG cited procedural reasons for why it could not be done. “He said this was the version the SC had studied and suggested 31 specific amendments on so we had to stick with it,” said Mr. Wickramanayake.
After the passage of the law, therefore, these experts worked with the Ministry’s Director Legal and the LD on amendments. By then, the government had faced considerable criticism and pressure including from the Asian Internet Coalition (AIC).
“There is an intentional ambiguity in the Act,” Mr. Gunawardene reflected. “Definitions are vague. Its terms are overbroad so people don’t know what constitutes an offence and what does not. The proposed amendments, while not touching the definitions so much, attempt to sharpen some of the provisions and also narrow down some of the offences in the interest of giving them more clarity.”
“For the internet intermediaries, like internet service providers (ISPs), global tech platforms and telecom companies, criminal liability is suggested to be removed,” he continued. “They’re still accountable but in a way that they can cooperate and collaborate with the authorities.”
The amendments passed by Cabinet are expected to address “most” of the AIC’s concerns as well as those raised by citizens and internet users. But they will fix things “only up to a point”, even the experts agree–and the Ministry is not amenable to repeal.
Some key proposals
“The world is going for a regulatory framework,” Mr. Wickramanayake said. “No one is against regulating the industry. But you need to have a proper mechanism that will not be used to suppress dissent and take away the right to freedom of expression.”
The impact on the digital economy and views of internet intermediaries were crucial. Separately, Sri Lanka risks losing backchannel informal collaboration between these platforms and State agencies like the Criminal Investigation Department, Telecommunications Regulatory Commission and the Computer Emergency Response Team for case-by-case criminal investigations.
Intermediaries were worried about preserving their right against self-incrimination. “When you criminalise them, how are we going to get information from them?” Mr. Wickramanayake said. “They will probably say look here we can’t release that kind of information.”
The OSA doubles the punishments for some offences if such misdeed is repeated. The SC had held this unconstitutional. It was taken out from some clauses but there are exceptions. The amendments envisage fixing this.
Where it deals with intermediary liability, the law provides that a person who doesn’t comply will be committing an offence. This is suggested to be replaced by a clause that says ISPs and intermediaries, when put on notice, have “the duty to take all reasonably practicable steps to comply” with the Online Safety Commission’s directions.
It absolves the ISP, intermediary or their officer employee or agent of civil or criminal liability “for anything done or omitted to be done with reasonable care and in good faith in complying with” any Commission direction or for doing anything it might have to do in relation to a declared online location under the OSA.
There is also an addition to preserve the confidentiality of information gathered through investigations (say, from personal internet accounts and devices) conducted under the OSA.
Importantly, the amendments recommend the building of a code of practice framework, Mr. Fernando said. This is where companies together with the Commission help formulate a code within a given timeframe; or, if that deadline passes, the Commission will develop such a code alongside local telecommunication companies and ISPs.
“This code will address almost all of the remedies that are to be provided by the Commission,” he said. “And it can adapt with development in technology, rather than being static.” It will be gazetted after public stakeholder comment.
“When you reach an alternative arrangement like this, global tech companies will work with a country where there is a participatory approach rather than ad-hoc, one-way street approach,” Mr. Fernando maintained. “So in the interim period, they are likely to cooperate beyond what they are now doing through CERT, TRC, the CID Cybercrime Division and so on.”
The law poses a serious impediment to progress at a time when President Ranil Wickremesinghe is prioritising artificial intelligence. But how far the government goes to roll back the damage remains to be seen.
The best way to say that you found the home of your dreams is by finding it on Hitad.lk. We have listings for apartments for sale or rent in Sri Lanka, no matter what locale you're looking for! Whether you live in Colombo, Galle, Kandy, Matara, Jaffna and more - we've got them all!