What to do about Online Safety Act?

If prompt takedown is the solution, the Act is a failure

By Rohan Samarajiva and Sachini Ranasinghe

Most important question is what the Government wants to do. 

“Amending the 2024 No. 09 Online Safety Act by removing restrictions on freedom of expression” is promised in chapter 1.8 of the NPP Manifesto. Not involving money, the manifesto promise may be taken seriously. It took them 11 months, but the Government did solicit comments and suggestions last month. 

For a start, section 12 must be deleted: “Any person, whether in or outside Sri Lanka, who poses a threat to national security, public health or public order or promotes feelings of ill-will and hostility between different classes of people, by communicating a false statement, commits an offence and shall on conviction be liable to imprisonment for a term not exceeding five years or to a fine not exceeding five hundred thousand rupees or to both such imprisonment and fine.” 

The elements of the offence created by section 12 are irremediably vague. The Supreme Court has repeatedly held that vagueness is a violation of Article 12(1) of the Constitution.

It is one thing to leave it to trained judges to interpret that vague language and decide whether an offence has been committed. But through section 23, the framers of the Act intended to have five people outside the judicial branch decide what is true and false, whether it promoted ill-will and hostility, etc. Obviously, that is over the line. So, it appears that the Government must not only delete section 12; it must get rid of the Commission itself. It has yet to be established, so it is easy to do.

Learning from how Act has been used

The Act was marketed based on the protection it was supposed to give women against partners who harassed them using intimate photos and videos. A surface reading of section 20 suggests it would (we too were guilty of that). But the fact that only men in positions of power have used it when filing cases before magistrates under section 24 points to a devious attempt to give politicians a workaround for the absence of criminal defamation in the laws of this land.

None of the complainants have been women. All except one has been engaged in politics, including even one Opposition front bencher. This suggests the Act is by, and for, the political class. 

What is the problem that people face?

Ordinary people feel helpless when bad and unpleasant things happen to them on these platforms. They want the harm to cease, as quickly as possible. They want prompt takedown. They do not know who to complain to; who can help. The platforms are highly automated; they employ a minuscule number of people to address user concerns. Even these people are in distant locations.

This is the genuine problem that politicians in all countries use as justification for laws that have “online safety” in their titles. But these laws are ineffective. Except for one case that was dismissed based on preliminary objections, none of the other five cases have yet concluded. If prompt takedown is the solution, the Act is a failure. 

Not only does it fail to solve people’s problems; it exacerbates them through the Streisand Effect, wherein an attempt to censor or otherwise draw attention away from something only serves to attract more attention to it. The name derives from American singer and actress Barbra Streisand’s lawsuit against a photographer in 2003, which drew attention to the photo she sought to take off the Internet. The first case under the OSA resulted in more, not less, people learning about a presidential candidate’s problems with a paramour.

The solution

The only way to address the people’s problem is to cooperate with the social media companies to leverage the algorithmic capabilities of platforms to promptly takedown virally disseminated offensive content. This does not require a Commission of the type described in Part II of the Act. Diktat from a Commission will only cause the companies to run everything through their lawyers and slow things down. 

What is needed is a unit housed within SL-CERT or the Telecom Regulatory Commission to screen and communicate complaints to the platform companies, preferably through a green-channel mechanism that will expedite takedowns. 

The cooperative pathway is the only one that will produce quick takedowns. The entirety of Part II of the Act can be deleted along with the Commission-centric pathway set out in section 23. Provision should be made in the Act for appeals to Sri Lankan courts and/or administrative review/appellate bodies against arbitrary takedown decisions.

That is what must be done if Government wishes to address the real problems faced by the public. Or they can, like the previous Government, prioritise the problems of the political class. Even that, ineffectively.