Published in The Ground Views on Feb. 13 ::
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 Lanka’s 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 Lanka’s 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.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.
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 bill’s 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. 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, 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 Lanka’s 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):
- Everyone shall have the right to hold opinions without interference.
- 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.
- 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:
- 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’, and has adopted a resolution on the promotion, protection and enjoyment of human rights on the Internet. 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’.
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. 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. In this regard, international human rights law foresees the need for flexibility in times of emergency; the aim is to enable governments to balance the competing demands of national security and liberty in a responsible manner.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’.
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’. 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. 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.
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 Lanka’s relationship with Chinese industry is a case in point here; many activists in the country feared the export of sophisticated censorship technologies from China’s 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. 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.
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’. 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.
 Report of the Secretary-General’s 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/sri-lanka/
 UN Expert Report (2011), at para 64.
 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.
 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.
 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.
 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.
 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.
 ICCPR Art. 4:
- 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.
- No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
- 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.
 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 Ní Aoláin, 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).
 Tushnet, ‘Controlling Executive Power in the War on Terrorism’ 118Harvard Law Review pp. 2673-2682 (2005), p. 2673.
 UN Report, supra note 1, para 236.
 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.
 UN HRC, Fact Sheet No. 32, ‘Human Rights, Terrorism and Counter-terrorism’, 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).
 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.
 La Rue (2011), supra note 8, p. 4.
 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.
 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/conseil-constitutionnel/root/bank/download/2009580DC2009_580dc.pdf.