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By Waruni Karunarathne

The government has called for legislators to draft laws which deal with certain areas of social media in order to curb hate speech and has declared that it will take stern action against those who use social media to promote communal and religious hatred. In the wake of the incident at Aluthgama, many see the need to take action against those who practice hate speech and incite communal violence.

However, concerns are being raised that this move by the government may restrict people from criticizing the government, thereby violating the freedom of speech and expression of the people. In the meantime some lawyers of the Bar Association of Sri Lanka observed that with the current trend of the government putting pressure on traditional media and banning many independent websites, social media has been the only form of information – and restrictions on using social media will violate the public’s right to access information.

President of the Bar Association Upul Jayasuriya told The Sunday Leader that the government has failed to let the media act independently and the move towards restricting social media users is seen as another form of curbing people’s access to information. He added, “With reference to media freedom, Sri Lanka is placed at 173 out of 178 countries in the world. Rwanda seems to have better freedom of expression than Sri Lanka as they are ahead of us in the list.” According to him, 37 journalists have so far fled the country this year as the government has failed to let the media act independently.

Commissioner of the Human Rights Commission of Sri Lanka (HRCSL) Dr. Prathiba Mahanamahewa added that Article No 14 (1) of the 1978 Constitution clearly recognizes freedom of expression, freedom of publication and freedom of the press. The government cannot arbitrarily censor any media programme because people have the right to receive information. But in the digital world, we receive plenty of information from websites. With social media if any incident occurs, within one second whole world will come to know without any barriers.”He explained that according to the European Union constitution in 2000, the digital rights of the citizens are protected.

He said, however by Article 15 of the 1978 Constitution, the freedoms of speech and publication are restricted – they are not recognized as absolute rights. Therefore he said that there are certain situations where the state can restrict those rights. He pointed out that even in the International Covenant on Civil and Political Rights, those restrictions are there and includes restrictions on disrupting religious harmony. According to Dr Mahanamahewa those restrictions should be imposed in a very accountable way accompanied by proper evidence and reasons.

He added, “Censoring a website is not like censoring the press. These websites are not operating from Sri Lanka; they are hosted in countries like Norway and Sweden, etc. Therefore, he added that the TRCSL can censor or ban them if such things happen. He added, “However, they must prove that it is under Article 15 of the Constitution. Otherwise, a citizen who is denied information from these websites can go to the Supreme Court citing an infringement of their fundamental rights”.

Dr Mahanamahewa gave an example of a case where an individual filed a case in the US Supreme Court against the banning of Al-Jazeera in the US. He pointed out that this particular individual won the case after proving that Al-Jazeera is the only website which provides true information on the Middle East and the US Supreme Court lifted the ban on Al-Jazeera. He added, “Any citizen has the right to go to court in order to protect their rights. On the other hand the Attorney General can decide whether those rights are absolute or restricted. We have to see if arbitrary censorship has been done only after analyzing evidence”. He pointed out that certain amendments to the US Patriot Act even allows law enforcement to search emails and telephone communications and even arrest certain suspects without a search warrant.

However Upul Jayasuriya added that Article 14 (1) of the Constitution of Sri Lanka recognizes media freedom and it is being cited as a fundamental right. He added that under the present regime the law seems to be only applicable to punish the poor and the ordinary whereas the rich and the powerful are not ruled by law.  He added that Article 15 of the Constitution refers to emergency situations and there are no emergency situations right now in the country. He said, “When there is a crisis in the country, Article 15 has some amount of a role to play. But we do not have an emergency situation at present”.

He pointed out that ‘hate speech’ is incorporated in Section 2 (1) of the Prevention of Terrorism Act and thereby it is prohibited for anybody to make any kind of speech that causes communal or religious disharmony – and therefore there is no need to bring in a separate Act. He said, “All what we need is the willingness of the law enforcement authorities and those who are giving orders to the law enforcement authorities to enforce the law”.

Dr Paikiasothy Saravanamuttu said that the existing law in the country if enforced impartially allows action against those who incite communal violence through hate speech. He added that the problem is that the government is not taking impartial action against those who are spreading communal and religious hatred. According to him, if the government is to take impartial action against those who incite religious and communal hatred, it should be done without violating the freedom of speech and expression. He emphasized that in extreme cases, necessary action must be taken.

Information Security Engineer at Sri Lanka Computer Emergency Response Team (CERT) Roshan Chandragupta told The Sunday Leader that CERT has been receiving certain complaints on social media.  He added that for the last six months they have received over 1050 complaints mostly about fake accounts and pictures. However, he said that CERT has not received complaints from anyone about social media being used to spread religious or communal hatred. He noted that social media including Facebook have their terms and conditions and people can report against particular account users for the content or pictures on their profiles under different categories.

He added that Facebook in particular has defined what they consider hate speech. Accordingly, content that attacks people based on their actual or perceived race, ethnicity, national origin, religion, sex, gender, sexual orientation, disability or disease is considered ‘hate speech’ and not allowed on Facebook.

Thus, according to Chandragupta if any individual comes across such content they can report it to Facebook or other social media operators and if the complaint is found to be bona fide, the content will not be displayed and in some instances the profiles of the persons posting the hate speech will be blocked.

Meanwhile, Secretary to the Ministry of Mass Media Charitha Herath assured that according to his understanding the government does not intend to bring in new legislation, but is only planning to take action according to the existing laws. He added, “The existing laws have enough legal space even to minimize and eradicate hate speech and provide for the protection of people’s rights”

http://www.thesundayleader.lk/2014/07/06/hate-speech-laws-may-threaten-freedom-of-speech/