Threats and opportunities: The freedom of expression online in Sri Lanka

Whereas a number of reports cover the challenges to the freedom of expression to mainstream media and journalists, a new report by the Centre for Policy Alternatives (CPA) – where I am the Head of the Media Unit – flags censorship of the Internet and web in Sri Lanka. The report also posits some recommendations on how to combat, if this respected columnist’s compelling argument is to be believed, what will again be a trend of violence against independent and investigative journalism condoned by government extending to online domains.

Freedom of Expression and the Internet in Sri Lanka and its supporting document, a table of cases and issues for easy comparison and study, flag a number of cases in Sri Lanka that point to the dangers associated with and the clampdown on dissent online, even as the blogosphere and conversations online continue to grow. Importantly, the report also looks at a number countries that are established democracies which are also either contemplating over-broad or technically unfeasible and unsustainable internet filtering, or have already legal restrictions at play that thwart dissent (e.g. France: A significant disconnect between global internet advocacy and domestic policies? and When even democracies go awry with online dissent).

The report is the first crack at a vital and emergent issue in Sri Lanka, demonstrating thus far a disturbing trend of violent attacks against the media of atoms extending to the media of bits. CPA launched the report today in Colombo, and the discussions during the launch flagged a number of other interesting avenues for research and advocacy.

Some of my own notes from the launch were:

• That it is not just a contest between digital natives and an older generation in government and the media, but increasingly a contest between digital natives – some of whom share liberal, democratic values and others who in the service of the old regimes or independent, seek to clamp down on dissent. All these groups will use the same web, internet and mobile tools.
• That the Sri Lanka TRC is itself severely compromised in independence and effectiveness as a mechanism to regulate and protect the rights of consumers.
• That there is a great divide between legal frameworks and their application and interpretation.
• That extra-judicial blocks of websites in Sri Lanka have been more successful than the ban on 12 pornographic websites by the order of the Colombo High Court.
• That http://www.citizens.lk, which the government still reminds citizens to register on, operates and exists without any basis in law and is a privacy nightmare to boot.
• That initiatives like the Icelandic Modern Media Initiative (IMMI) provides an international safe-haven for traditional whistleblowers as well as investigative journalism that risks hate and harm domestically. This includes the documentation of war crimes and crimes against humanity.
• That many mobile phone service providers and telcos in Sri Lanka are willing parties to the Rajapaksa regime’s arbitrary and illegal censorship and control of online media and communications.

These are all issues I have covered in detail on this blog, and which the report also flags.

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Executive Summary

The post war outlook for freedom of expression on the web and Internet in Sri Lanka is not bright. In Sri Lanka’s recent history, freedom of expression both online and elsewhere has come under threat. Online journalists and bloggers have come under attack, censure and surveillance. Websites have been shutdown and media premises have been attacked. A strong culture of impunity prevails. The government continues to speak of the increasing need for surveillance systems and imposing greater regulation on online content providers.

What is important to note is that stifling content online is not something that is just happening in Sri Lanka. All over the world, regimes of all political persuasion, whether liberal, repressive or in between are finding it a challenge to strike a balance to preserve freedom of expression online. Liberal regimes such as Australia are proposing to use Internet filters to remove certain prescribed content. In Thailand authorities have banned thousands of websites that were deemed offensive to the monarchy. China is famous for its ‘great wall’ that blocks access to any site that the government deems is undesirable. In Saudi Arabia there is a government authority that determines which websites are acceptable and blocks all others. To date, a record 120 bloggers and Internet users remain imprisoned all over the world. Similarly, regimes of all political persuasion are implementing mechanisms that place Internet usage under surveillance. The French National Assembly have passed a law that allows the government to install software on an Internet user’s computer that can collect and record key strokes from the computer. The British and Australian governments are currently considering proposals to require communication firms to hold user information and organize it in a manner that is more easily accessible by law enforcement agencies.

Measures such as the British and French surveillance scheme and the global trend towards stifling content online is worrying, especially when considered from a Sri Lankan perspective. These precedents from abroad, especially from developed ‘liberal’ governments can be opportunistically seized by regimes like Sri Lanka to legitimize their own actions to clamp down on dissent. In particular it is important to keep in mind the context in which these measures are being carried out. At least in places like Australia, France and the UK the proposed measures are announced publicly and debated vigorously. It is possible for civil society to lobby law makers and regulators and actually impact the policy making process. In contrast in countries like Sri Lanka, laws are made in a culture of secrecy, there is very little opportunity to meaningfully influence the law making process and worse often what is legal and permissible and what happens in reality are two different things.

In any event Internet users in Sri Lanka operate within a restrictive legal framework. The Sri Lankan constitution protects the right to free speech and publication. However it is subject to a host of restrictions including public morality and national security. Moreover, neither the text of the guarantee nor the restrictions imposed on the guarantee meet international standards. In particular the constitutional text does not require that any restrictions placed on the guarantee be limited by ‘reasonableness’ or ‘necessity’. To date the Supreme Court has not made any pronouncements on the applicability of freedom of expression guarantee to the Internet. The Court has made numerous rulings as to the importance of free speech for a democracy, and how criticizing the government and political parties are, per se, a permissible exercise of the freedom of speech. Further the Court has upheld in numerous occasions that arbitrary interference and attacks on journalists are a violation of the freedom of expression guarantee. Thus, a strong argument can be made that the freedom of expression guarantee should be applied to the Internet and that online journalists should receive the same protection afforded to traditional journalists. However, the Court has a weak record when it comes to interpreting restrictions on constitutional rights. Quite often the Court has opted for a narrow conservative approach, at odds with comparative international jurisprudence, that allows over-broad national security legislation to trump civil liberties.

Further there are a host of legislative provisions that currently limit freedom of expression. These laws are not specifically targeted at online content; however their existence nonetheless has an impact on the selection and manner in which issues can be discussed online. Broadly they can be divided in to general laws and laws relating to national security. The national security laws especially emergency regulations and the PTA have been criticized often for their over broad nature, lack of specificity and their insufficient connection with the objectives they seek to achieve. The Sri Lankan courts have not yet had an opportunity to consider how these content restricting laws can be applied to the online sphere. However, this paper considers examples from foreign jurisdictions and discusses the novel ways these content restricting laws can be applied to the online sphere. Thus, highlighting that in Sri Lanka, though these laws haven’t yet been enforced in the online sphere, their mere existence alone warrants concern.

Further given the increasing threats to privacy posed by the Internet, this paper considers the right to privacy in Sri Lanka. Under the Roman Dutch common law of Sri Lanka the right to privacy is protected in specific instances. However there is no right to privacy under the Constitution of Sri Lanka. There are also no legislative provisions that protect general information gathering and handling. The Sri Lanka Telecommunications Act No. 25 of 1991 (As Amended) (Sri Lanka) and the Computer Crimes Act No 24 of 2007 (Sri Lanka) provides limited protection to Internet users from surveillance and other forms of intercepting communications. However both the Acts have provisions that allow law enforcement agencies and relevant Ministers to intercept communications without any apparent restrictions or guidelines on their general power to do so.

Considering these short comings this paper proposes recommendations to improve freedom of expression online. Numerous steps can be taken both at a legal and a policy level. The Government in consultation with service providers, Internet users and bloggers should initiate significant law reform. Laws that restrict discussion of politically and socially relevant content should be repealed. The Government should take immediate steps to legislate for broad privacy protection. Service providers need to provide clear and accessible privacy policies so consumers are informed of their privacy rights. Efforts to block websites and filter content has to be catalogued and published. There needs to be an independent third party who can monitor such moves and the implementation of any privacy policies. Breaches in privacy policies and attempts to stifle online content should be publicized so that users are aware of the limits to their privacy and freedom of expression online.