Executive Summary

The history of freedom of expression in Sri Lanka is inextricably linked to a nearly three-decade-old war and the policies pursued as well as actions undertaken by successive governments andnon-state actors. These have led to the murder and abduction of journalists, censorship,intimidation and tolerance of a culture of impunity, which continues to have a direct impact onmedia freedom and represents a threat to the freedom of expression on the Internet. Thedirectives of national security and arbitrary judgements by government officials on whatconstitutes the national interest and public morality have been manipulated to stifle dissent andblock web content that is considered offensive. The situation is compounded by a legislativeframework with broad provisions that allow for civil liberties to be trumped in favour of nationalsecurity provisions and regulatory standards that demand neither an independent regulatorycommission nor transparent administrative practices and adequate protection of data and privacy.International rights groups and media watchdog organisations have articulated their concernabout greater regulation and surveillance becoming a global trend. There is also added concernabout the advancement of cheaper and more efficient filtration technologies that make it easierfor developing countries to arbitrarily restrict web content. In line with the need to emphasise arights-based framework for online freedom of expression, this report examines the specific casesand practices that restrict online freedom of expression with respect to regulation, legislation andarbitrary action in Sri Lanka in order to determine whether the incumbent government has abidedby international freedom of expression standards and its commitment to upholding Article 19 ofthe Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil andPolitical Rights (ICCPR). This report also considers the freedom of expression standards set out inthe report of the Special Rapporteur on the promotion and protection of the right to freedom ofopinion and expression, Frank La Rue, and examines the conclusions and recommendations ofthe Special Rapporteur in line with the recent trends of freedom of expression on the Internet inSri Lanka.The report looks specifically at the arbitrary blocking and filtering of web content; criminalisationof legitimate expression; the status of intermediary liability and actions of intermediaries. Despitetheir being no information on disconnecting users from Internet access, including on the basis ofintellectual property law, the report highlights the potential for disconnection based on the broadnature of intellectual property legislation. It would however be unlikely to expect either thegovernment or the legislature in the country to approve disconnection from Internet access. Thereport also examines the potential threat that cyber-attacks may present to online freedom ofexpression by causing the government to develop more sophisticated surveillance technologiesthat could be utilised to consolidate a broad regime of surveillance, control and the taking downof content. A critical concern is the protection of privacy and data. The report examines theexisting legislative framework, and also highlights the need for specific and comprehensivelegislation for the protection of individual privacy and data. The final consideration of this report iswith regard to Internet access and the acknowledgement of government policies with respect toproviding the necessary infrastructure for increasing Internet penetration in the country. Adequateattention must nevertheless be given to the advantages and disadvantages of technologicaltransfers from developed countries.While urgent reform of existing legislation and regulatory practices is required in order to addressthe clear concerns about online freedom of expression, the report proposes national andinternational advocacy to ensure that the government addresses reform and adheres tointernational standards on the freedom of expression. There is also a need for a multi-stakeholderinitiative so that the perspectives of users, intermediaries and other resource persons areincorporated into the design of the legislative frameworks and regulatory standards, therebyensuring wide deliberation and participation to achieve the ultimate goal of strengthening freedomof expression on the Internet in Sri Lanka.

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1.

Introduction

The post-war outlook for freedom of expression on the Internet in Sri Lanka remains unpromisingwith a great deal evidence pointing towards the government’s increased proclivity for imposingrestrictions on web content. With a history of online journalists and bloggers under attack,censure and surveillance; websites being shutdown

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and media premises attacked, and theprevalence of a strong culture of impunity, the government continues to speak of the increasingneed for surveillance systems and imposinggreater regulation on online content providers inorder to preserve cultural values, national security and the national interest. The growingconcernat the present moment is the extent to whichthis technology could be further manipulated tosuppress dissent and protect parochial partisan interests.There is also the issue of technology transfers from countries like China that have establishedsophisticated online surveillance systems and filtration technologies, which are utilised for thesuppression of dissent. In Sri Lanka, the government has established partnerships with Chinesefirms and experts for the implementation of broadband infrastructure

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, which has raised concernsabout the transfer of surveillance technology as well. These concerns and suspicions are notunfounded given reports of Chinese military intelligence consultants

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working with thegovernment to assist in the blocking of websites and the Telecommunications RegulatoryCommission (TRC) expressing a desire for greater regulation and monitoring of web content.

4

Several international media watchdogs

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have already expressed

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concern about the increase inweb censorship following the end of war. In line with reports of a global preference for offline URLfiltration and the trends and practices of the Sri Lankan government, there is a need to exposespecific cases that contravene international standards and argue for urgent reform, transparencyand multi-stakeholder initiatives on Internet governance, the protection of freedom of expressiononline, and privacy as well as data protection. The latter is allthe more important in a contextwhere new media has led to greater freedom of expression through increasing citizen participationin the collection and production of news through innovative citizen media initiatives andthepopularity of social media. The risk here is that the government in order to respond to theliberating impact of new media could impose surveillance systems in ordertomonitor informationexchanged on these platforms. This would constitute a violation of the user’s right to privacy andfundamentally impact the circulation of information in the country as well as the freedom ofexpression if citizens fear reprisals based on the content of their online submissions/ conversations. The issue of self-censorship has already deeply impacted mainstream media

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1

Examples of on-going web censorship in Sri Lanka,http://ict4peace.wordpress.com/2010/02/23/ examples-of-on-going-web-censorship-in-sri-lanka/ , 23

rd

February 2010

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“Sri Lanka’s Mobitel and ZTE Corporation Carry Out the First Successful 4G (LTE) Trial in South Asia,”http://wwwen.zte.com.cn/en/press_center/news/201105/t20110517_234745.html, 17th May 2011

3

‘Chinese here for cyber censorship,’ Sunday Times,http://sundaytimes.lk/100214/News/nws_02.html,February 2010

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‘Sri Lankan government prepares new Internet restrictions,’ WSWS,http://www.wsws.org/articles/2010/ feb2010/slmd-f15.shtml, 15th February 2010

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Enemies of the Internet, Countries under surveillance, RSF,http://en.rsf.org/IMG/pdf/Internet_enemies.pdf,12

th

March 2010

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In Sri Lanka, censorship and a smear campaign, CPJ,http://www.cpj.org/2009/07/in-sri-lanka-censorship-and-a-smear-campaign.php, 14

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July 2009








initiatives, and the risk of a similar trend with alternative news websites is a prospect that wouldhave severe consequences for the future of freedom of expression online.This report examines legislation and regulation as well as relevant policy trends that do not adhereto the UDHR, ICCPR and international freedom of expression standards. The report will alsoconsider the standards and recommendations detailed in the report by the United Nations SpecialRapporteur on the promotion and protection of the right to freedom of opinion and expression,Frank La Rue. It is also important to note the relevance of the cross-regional statement at the 17

th

session of the HRC in June 2011 where a representative notes that,Decisions on Internet governance and policy issues, at global as well as regional levels,should be consistent with international human rights law, including protections for freedomof expression and the right to privacy, and reached in multilateral, transparent anddemocratic environments. In such environments, it is important that the multistakeholderprinciple is respected and that governments, the private sector, civil society, academiccommunity and the entire Internet technical community work together to build greater trustin the ICT networks, including necessary cross-border co-operation.

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As expressed in the Special Rapportuer’s report, there is now clear acknowledgement by amajority of states on the need to safeguard the rights of Internet users as well as the promotion ofInternet access as a fundamental human right and enabler of other rights. However, Internet usersin Sri Lanka operate within a restrictive legal framework. The Sri Lankan constitution protects theright to free speech and publication. However, it is subject to a host of restrictions including publicmorality and national security. Moreover, neither the text of the guarantee nor the restrictionsimposed on the guarantee meet international standards. In particular, the constitutional text doesnot 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 offreedom of expression guarantee to the Internet. The Court has made numerous rulings withregard to the importance of free speech for a democracy, and how criticising the government andpolitical parties are

per se

a permissible exercise of the freedom of speech. Further, the Court hasupheld in numerous occasions that arbitrary interference and attacks on journalists are a violationof the freedom of expression guarantee. Thus, a strong argument can be made that the freedomof expression guarantee should be applied to the Internet and that online journalists shouldreceive the same protection afforded to traditional journalists. However, the Court has a weakrecord when it comes to interpreting restrictions on constitutional rights. Quite often the Court hasopted for a narrow conservative approach, which is at odds with comparative international jurisprudence and allows for over-broad national security legislation to trump civil liberties.Furthermore, there are a host of legislative provisions that currently limit freedom of expression.These laws are not specifically targeted at online content; however, the existence of such lawsnonetheless 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 nationalsecurity laws especially emergency regulations (before it was allowed to lapse in September 2011)and the PTA have been criticised often for the broad nature of the legislation, lack of specificityand their insufficient connexion with the objectives they seek to achieve. The Sri Lankan courtshave not yet had an opportunity to consider how these content restricting laws can be applied tothe online sphere and even though these laws have not yet been enforced in the online sphere,the existence of such a restrictive and repressive legal framework warrants concern.Given the increasing threats to privacy posed by the Internet, this report considers the right toprivacy in Sri Lanka. Under the Roman Dutch common law of Sri Lanka the right to privacy isprotected in specific instances. However, there is no right to privacy under the Constitution of SriLanka. There are also no legislative provisions that protect general information gathering andhandling. The Sri Lanka Telecommunications Act No. 25 of 1991 (as amended) (Sri Lanka) and theComputer Crimes Act No 24 of 2007 (Sri Lanka) provides limited protection to Internet users fromsurveillance and other forms of intercepting communications. However, both the Acts have

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Freedom of Expression on the Internet, Cross-regional Statement, Human Rights Council 17

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session,10

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June 2011

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