Let’s ponder on the proposed Online Safety Bill

The government is going to pass next month the Online Safety Bill which provoked controversy and a wide debate few months ago due to its apparent crude repressive nature. In fact it was a Bill originally drafted apparently with questionable faith professing to be good faith. 

So many sections of the original Bill seemed to be threatening the freedom of expression. The Bill, in its perambulatory clause said that it is an Act to establish the Online Safety Commission and it provided for the President to appoint the Commission without the recommendation or approval by the Constitutional Council,whereas members of all other “independent” commissions have to be appointed by the President after being recommended by the Constitutional Council. 

And the President had been empowered by the Bill to remove the members of the commissions at will, totally eroding the independence of the Commission. Due to this and several other sections of it which seemed to result in suppression of freedom of expression of individuals it came under fire with the Asia Internet Coalition (AIC) which consists of multiple tech giants including Apple, Facebook, Google, Amazon, and Yahoo, the International Commission of Jurists (ICJ), the Bar Association of Sri Lanka (BASL), and the Human Rights Commission of Sri Lanka (HRCSL) voicing concerns, when it was first published in the government gazette on September 18. 
The purpose of the Bill was further questionable as it was presented against a backdrop of the government having presented so many repressive laws some of which had to be later withdrawn subsequent to them having been challenged. For instance, President Ranil Wickremesinghe issued a gazette notification on September 23 last year declaring eight High Security Zones (HSZs) in Colombo and suburb. The gazette was revoked on October 1, afterit was challenged by various groups in the Supreme Court. Then they presented in Parliament another piece of legislation called “Bureau of Rehabilitation Bill”on September 23 last year, apparently with the same objective of suppressing dissent. The Supreme Court determined that the Bill as a whole was inconsistent with the constitution.
Later another new law, Anti-Terrorism Bill was published on March 22 this year but the presentation of it in Parliament had to be postponed amidst wide criticism against it by local and international human rights organizations. Subsequently another Bill, Broadcasting Regulatory Bill was also to be presented, but was not materialized due to protests.

Forty five Petitions were filed against the proposed Online Safety Bill alleging that the Bill is in violation of the fundamental rights of freedom of speech and expression guaranteed by the Constitution.Supreme Court had concluded its hearing on it on October 19 and the judgement was announced by the Speaker on November 7 which had ruled that 31 out of the 56 clauses of the Bill were inconsistent with the Constitution and noted however that if the 31 clauses referred to are amended at the committee stage of the Parliamentary debate on the Bill, it can be passed by a simple majority.
Hence, the danger to the freedom of expression by the Bill seems now to be minimal if the government acts according to the Supreme Court ruling. However, what if the government did not keep its commitment, against a situation where the executive sometimes does not pay due regard to the judiciary and the independent commissions and Sri Lanka does not have a post-enactment review mechanism? Shani Abeysekara was removed from the position of CID Director soon after Gotabaya Rajapaksa was elected as President. Funds were not released for the local government elections despite the Supreme Court having ordered not to withhold funds. The previous IGP was given several service extensions disregarding the Constitutional Council’s refusal to do so.
However, regulation of online contents is essential as the online platforms are being highly misused to harm the others. Cyberbullying, trolling, threatening, sexting, hate mongering, blackmailing, revenge porn are all facts, not imaginations. Laws to regulate these contents must be promulgated with the consultation of relevant stakeholders, and not to cater to the whims and fancies of the politicians. Parliamentarians must think about the possible repercussions of each clause of the proposed Bill during the voting on the Bill, as it may boomerang on them someday.