Online Freedom of Expression in Sri

Lanka

by Celia Davies - on 02/13/2015

The tension between the burgeoning technological capacities for

bothexpression and repression online is a global phenomenon, compounded
by the absence of a dedicated international legal framework that sets out
obligations for states with regard to the protections of freedom of
expression online. Within this context, Sri Lanka is particularly vulnerable:
existing protections for offline freedom of expression are poor both in terms
of substance and implementation. While the right to freedom of speech,
expression, and publishing is protected under Article 14 (1)(a) of Sri Lankas
constitution, it is subject to numerous restrictions, aimed at preserving
national security, public order, racial and religious harmony, and morality.
Moreover, its scope is much narrower than what is entailed by Sri Lankas
obligations under international human rights law.

In practical terms, online freedom of expression lacks a robust framework

for enforcement. The previous government developed a legislative and
institutional infrastructure that aggressively suppressed critical voices.
During the war, a series of assaults, disappearances and killings contributed
to a culture of fear and self-censorship on the one hand, and government
impunity on the other. At least 10 journalists were killed between 2006 and
early 2009: their deaths were never properly investigated.[1]Reporting on
military operations was severely restricted in the name of the war effort.
Under the emergency regulations which lapsed in 2011 it became an
offence in 2006 to publish negative reports of military operations, while
independent journalists were banned from entering LTTE-controlled areas.
Some were publicly blacklisted as Tiger sympathizers by the Ministry of
Defence. The scale and intensity of these repressions increased in 2008,
with the introduction of new regulations on war reporting, and a wave of
violent sometimes fatal assaults on journalists and press houses.[2]
Freedom of expression remained under siege after the war ended in 2009.
The administration continued to restrict the operation of the independent
media, buying up controlling stakes in critical media institutions, continuing
its campaign of intimidation against journalists, and strategically targeting
individuals through hate speech campaigns. In the form of the proposed
Media Ethics Bill of 2013, there emerged a new and unprecedented threat
to the public sphere. Drafted by the Media Ministry, this piece of legislation
would have placed sweeping restrictions across all offline and online media
in contravention of international standards. In the end, the bills progress
was halted by the President to allow the industry to produce self-regulation
guidelines acceptable to all but this stay of execution was only conceived
as temporary, and the shadow of further repression loomed large. The bill
would have outlawed, inter alia, any content deemed to offend
expectations of the public, morality of the country or [that] tends to lower

the standards of public taste and morality (1a); that contains criticism
affecting foreign relations (1b); or suggestive innuendos and half truths or
willful omissions (1d); or indeed materials against the integrity of the
Executive, Judiciary and Legislature (1h).
Over the last eight years, interference in online expression gathered pace,
with the former government drawing upon an increasing range of tools to
silence critics legal and extra-legal. Notably, in 2011, the Ministry of Mass
Media and Information introduced a registration requirement for websites
bearing content relating to Sri Lanka or the people of Sri Lanka, a
dangerously baggy definition. As argued in a 2012 Supreme Court petition
by the Free Media Movement, the policy has no legal basis, and moreover
violates the right to freedom of expression. The Court rejected the petition,
terminating the possibility for a high-profile public debate on the scope of
online freedom of expression. The same year also saw the extension of the
notoriously harsh 1973 Press Council Law No.5 to include online news
websites, banning publication of profanity, obscenity, false information
about the government or fiscal policy, and official secrets.
The political rhetoric of the Rajapaksa administration branded social media
sites such as Facebook a threat to national stability and security a
disease for which preventative action was required. Subsequently, in
March 2014, a committee to regulate social media was created by the
information ministry, though the scope of its activity remains unclear.
[4] Thus despite the state commitment to improving access to the physical
infrastructure of the Internet, and despite the increasing levels of Internet
penetration among the Sri Lankan population together with decreasing
connectivity costs,[5] in terms of content that contests governance and is
critical of government, the online public sphere may in fact be
shrinking. Urgent action is required to reverse this institutional legacy, in

the form of legislative and structural reforms.

What are Sri Lankas international obligations?

There are clearly applicable legally binding international standards on the
protection of freedom of expression online and these standards need to be
better incorporated into domestic regulatory practices. Offline protections
can be applied to online speech; the right to freedom of expression is
enshrined in the International Convention on Civil and Political Rights
(ICCPR):
Article 19
1. Everyone shall have the right to hold opinions without interference.
2.
2. Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in print, in the form
of art, or through any other media of his choice.
3.
3. The exercise of the rights provided for in paragraph 2 of this article carries
with it special duties and responsibilities. It may therefore be subject to
certain restrictions, but these shall only be such as are provided by law and
are necessary:
4.
For respect of the rights or reputations of others;

For the protection of national security or of public order (ordre public), or of

public health or morals.

While this provision was designed to protect freedom of expression in a

world of traditional print and broadcast media, its application to digital
media is largely uncontested. The UN Human Rights Committee (HRC) has

explicitly stated that Article 19(2) applies to electronic and internet-based

modes of expression,[6] and has adopted a resolution on the promotion,
protection and enjoyment of human rights on the Internet.[7] The UN
Special Rapporteur on the promotion and protection of the right to freedom
of opinion and expression has declared that Article 19 was designed to
include and to accommodate future technological developments through
which individuals can exercise their right to freedom of expression.[8]
Article 19(2) requires not only that states refrain from interfering with the
right to freedom of expression, but also that they actively defend this right
as it applies between people or private entities.[9] In this sense, the
government bears overall responsibility for ensuring freedom of expression.
But also note: as the third paragraph of Article 19 states, freedom of
expression is not an absolute right. The right to free expression can be
limited by the government; for instance, requiring Internet Service Providers
(ISPs) to block sites known to disseminate child sexual abuse content is a
legitimate restriction.
However, any restriction must pass a strict three-part test
of legality,necessity, and proportionality, which are cumulative conditions.
These standards are designed to prevent states from according themselves
excessively broad discretionary powers to restrict individual rights.
Additionally, in times of public emergency, states may unilaterally limit
individual freedom of expression beyond the scope of paragraph 3, in line
with the safeguards set forth elsewhere in the ICCPR.[10] In this regard,
international human rights law foresees the need for flexibility in times of
emergency;[11] the aim is to enable governments to balance the
competing demands of national security and liberty in a responsible
manner.[12]Unfortunately, that balance is not always upheld, and
fundamental rights face illegitimate restrictions.

The necessity test applies to the various contexts in which states might try
to restrict free expression, for instance, during a national security crisis.
Proportionality means that action taken to limit the right must not restrict
the right to freedom of expression any more than is necessary to achieve
that objective if censorship is deemed legitimate (necessary) then it
must be applied surgically, targeting the smallest amount of content
possible. To illustrate, a UN Panel of Experts Report on Accountability in Sri
Lanka (2011) indicates that the banning of independent journalists from the
conflict zone entailed a violation the proportionality requirement, as it was
disproportional to any public safety objective.[13]
These are useful safeguards of the right to freedom of expression. On the
other hand, the grounds for restriction under 3(b) for the protection of
national security or of public order (ordre public), or of public health or
morals are sufficiently vague as to allow for exploitation by governments.
Many of the gaps in international law are emerging as a result of states
increasing technical capacities combined with a lack of transparency and
accountability in policy-making and implementation.
Excessive restrictions often serve to enforce a particular political or moral
regime.[14] In particular, the national security clause poses a major threat
to freedom of expression, with a growing number of governments using
counter-terrorism laws to limit individual freedoms.[15] The post-9/11 global
security environment and the war on terror has given rise to tighter
restrictions on online civil liberties, based on the knowledge that terrorists
use online communication platforms to plan atrocities.[16]
Looking to the regional level, the South Asian Association for Regional
Cooperation (SAARC) Charter of Democracy makes broad references to

democratic values but includes no reference to freedom of expression; the

ICCPR is the relevant non-domestic law.

Online freedom of expression: areas of vulnerability

As outlined above, existing international human rights law offers basic
protections for freedom of expression online. But at the same time, the
increasingly important online dimension of this right is vulnerable to
arbitrary restrictions by overzealous government censors, who fear the
transformative power of the Internet as a means and space for
democratised political action. Individuals have become at least potentially
active publishers as well as passive consumers of information, able to
transmit content on a peer-to-peer basis.
The lack of clarity around international standards gives too much leeway to
repressive regimes to limit individual freedom of expression, and the
regulatory demands of online freedom of expression exceed the practical,
theoretical and normative capacity of domestic legal frameworks.
Furthermore, the new and expanded opportunities for individual expression
that online platforms provide are matched by states correspondingly
greater technical capacities for restriction, through filtering/blocking,
content regulation, and surveillance. Sri Lankas relationship with Chinese
industry is a case in point here; many activists in the country feared the
export of sophisticated censorship technologies from Chinas highly
developed military intelligence industry.
At the heart of the discourse on online freedom of expression lies the
controversy around whether there is a fundamental right to Internet access.
In that respect it is important to distinguish between access first of all to
the physical network infrastructure and, secondly, to digital content and

applications to online news sites, social media platforms, and the content
they publish.[17] While a small number of countries Estonia, Finland,
Costa Rica, and Greece have taken legislative action enshrining a right to
Internet access, the general approach remains that while Internet access
enables the enjoyment of other rights, it is not itself a fundamental right.
[18]
But on the other hand, under repressive regimes, the Internet may provide
the only effective mechanism for freedom of expression, and so cutting off
access essentially strips the right of its meaning. In this regard, the Sri
Lankan experience illuminates some of the endemic problems in the
international regulation and protection of online freedom of expression. The
most realistic approach to regulating online expression seems to be that
Internet access (in both its functional meanings) is a necessary condition
for the enjoyment of the fundamental right to freedom of expression but
that such a principle can be derived from existing international freedom of
expression standards interpreted in a contemporary way.[19] The key
point to emphasise here is that any state-imposed restrictions to Internet
access remain subject to the strict standards of international human rights
law.
###
[1] Report of the Secretary-Generals Panel of Experts on Accountability in
Sri Lanka, March 13 2011, para. 64, p. 17. Available
athttp://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf,
accessed February 11 2015. See also http://www.cpj.org/killed/asia/srilanka/
[2] UN Expert Report (2011), at para 64.
[4] Seehttps://freedomhouse.org/sites/default/files/resources/Sri
%20Lanka.pdf, p.1.

[5] See e.g. Freedom House Sri Lanka Report, , p. 2. Available

athttps://freedomhouse.org/sites/default/files/resources/Sri%20Lanka.pdf;
accessed February 11 2015, and International Telecommunication Union,
Percentage of Individuals Using the Internet; Ministry of Finance and
Planning, Annual Report 2010, p. 89. Available
athttp://www.treasury.gov.lk/reports/annualreport/AnnualReport2010-eng;
accessed February 11 2015.
See also Sri Lanka Dialog to Invest US$150mn in Expansion, Lanka
Business Online, February 11 2011. Available
athttp://www.lankabusinessonline.com/fullstory.php?nid=754125283;
accessed February 11 2015.
[6] UN Human Rights Committee (HRC), General Comment 34, Article 19:
Freedoms of opinion and expression, UN Doc. CCPR/C/GC/34, September 12
2011, p. 3, para. 12; p. 11, para. 43.
[7] UN HRC Resolution 20/8 on the promotion, protection and enjoyment of
human rights on the Internet, UN Doc. A/HRC/20/L.13, July 5 2012,
consensus-based adoption.
[8] La Rue, UN Human Rights Council, Report of the Special Rapporteur on
the promotion and protection of the right to freedom of opinion and
expression, UN Doc. A/HRC/17/27, May 16 2011, p. 7, para. 21.
[9] UN HRC, General Comment 34, supra note 6 and General Comment
31,Nature of the General Legal Obligation on States Parties to the
Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13, March 29 2004, p. 1, para. 8.
[10] ICCPR Art. 4:
1. In time of public emergency which threatens the life of the nation and the
existence of which is officially proclaimed, the States Parties to the present
Covenant may take measures derogating from their obligations under the
present Covenant to the extent strictly required by the exigencies of the
situation, provided that such measures are not inconsistent with their other
obligations under international law and do not involve discrimination solely

on the ground of race, colour, sex, language, religion or social origin.

2.
3. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18
may be made under this provision.
4. Any State Party to the present Covenant availing itself of the right of
derogation shall immediately inform the other States Parties to the present
Covenant, through the intermediary of the Secretary-General of the United
Nations, of the provisions from which it has derogated and of the reasons
by which it was actuated. A further communication shall be made, through
the same intermediary, on the date on which it terminates such derogation.
5.
[11] Most human rights treaties explicitly provide for extraordinary state
powers in times of crisis. This approach is identified as the accommodation
model by Gross and N Aolin, Law in Times of Crisis: Emergency Powers in
Theory and Practice (2006), p. 17. The model is based on the view that
when a nation is faced with emergencies its legal, and even constitutional,
structure must be somewhat relaxed (and perhaps even suspended in
parts). International human rights treaties that specifically do not allow for
any exceptions are those that protect absolute rights, namely the
Convention on the Prevention and Punishment of the Crime of Genocide
(1951) and the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (1987).
[12] Tushnet, Controlling Executive Power in the War on Terrorism
118Harvard Law Review pp. 2673-2682 (2005), p. 2673.
[13] UN Report, supra note 1, para 236.
[14] Dutton, Dopatka, Hills, Law and Nash, Freedom of Connection
Freedom of Expression: The Changing Legal and Regulatory Ecology
Shaping the Internet, Oxford Internet Institute, for UNESCO Division for
Freedom of Expression, Democracy and Peace, pp. 1-104 (2010), p. 68.

[15] UN HRC, Fact Sheet No. 32, Human Rights, Terrorism and Counterterrorism, pp. 1-72, p. 42. Available
athttp://www.ohchr.org/Documents/Publications/Factsheet32EN.pdf. See
e.g., UN Security Council Resolution 1373, UN Doc. S/RES/1373 (2001).
[16] Birnhack and Elkin-Koren, The Invisible Handshake: The Reemergence
of the State in the Digital Environment, 8:6 Virginia Journal of Law and
Technology, pp. 1-57 (2003), p.15.
[17] La Rue (2011), supra note 8, p. 4.
[18] Joint Declaration on Universality and the Right to Freedom of
Expression, UN Special Rapporteur on Freedom of Opinion and Expression,
the Organization for Security and Co-operation in Europe (OSCE)
Representative on Freedom of the Media, the Organization of American
States (OAS) Special Rapporteur on Freedom of Expression, and the African
Commission on Human and Peoples Rights (ACHPR), May 2014.
Recommendation 1(h)iii reflects this cautious modality, stating that States
have a duty to promote universal access to the Internet.
[19] Lucchi, Freedom of expression and the right of access to the Internet,
in Price, Verhulst, and Morgan (eds.), Routledge Handbook of Media
Law (2013), pp. 157-173. See also, Conseil Constitutionnel, Decision no.
2009-580 of June 10 2009 on the Act furthering the diffusion and protection
of creation on the Internet. Official translation available
at http://www.conseil-constitutionnel.fr/conseilconstitutionnel/root/bank/download/2009580DC2009_580dc.pdf.
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