09. THE ONLINE SAFETY ACT & THE FUTURE OF ONLINE EXPRESSION The Government gazetted the Online Safety Bill in September of 2023 (Center for Policy Alternatives, 2023). Subsequently, nearly fifty petitions were filed against the Bill challenging its constitutionality in the Supreme Court (Samaraweera and Tennekoon, 2023) and the apex court’s verdict determined 31 clauses to be unconstitutional and further stated that if these were not amended, a special majority in Parliament was needed for the Bill to become law. A mere five months later, the OSA was signed into law, intending to dramatically regulate the content of online communication. Subsequently, the HRCSL wrote to the Speaker of Parliament stating that a number of Sections of the Act were non-compliant with the Supreme Court’s determination (Economy Next, 2024) and Opposition MP M. A. Sumanthiran, member of Ilankai Tamil Arasu Katchi party, filed a petition in the Supreme Court challenging the Speaker’s signing of the Bill into law as he claimed that the Bill was not adopted legally. However, the petition was dismissed without taking it up for consideration (Newswire, 2024). The OSA cannot be assessed in a vacuum. Instead, it must be viewed along with the way existing legislation such as the PTA and ICCPR Act is being abused to curtail freedom of expression, as was discussed extensively in the preceding sections. However, the analysis of its provisions given above is evidence that the OSA has immense potential to violate freedom of expression in the online space. The OSA establishes an Online Safety Commission that is tasked with implementing it. The Commission has sweeping powers including issuing notices to persons communicating ‘prohibited statements’ to cease such communication, issuing directives to persons, service providers, and internet intermediaries to remove content or restrict access, and issuing codes of practice for service providers. The Commission will consist of five members appointed by the President, subject to approval by the Constitutional Council. Critics of the OSA have commented on this appointment process as it reduces the role of the Constitutional Council to a mere stamp of approval. The purpose of the Council is to ensure the appointment of an independent Commission which will in turn ensure that the Act is not misused, and this process of approval prescribed by the OSA undermines the role of the Council and politicises the Commission. The Online Safety Commission’s broad powers would essentially vest it with the authority to stifle legitimate criticism by restricting statements that the Commission deems to amount to a false or prohibited statement or prohibit ‘online locations’, which consist of a plethora of things including websites, webpages, chatrooms/forums, “or any other thing that is hosted on a computer and can be seen, heard or otherwise perceived by means of the internet” (Online Safety Act, 2024). In standard criminal legal practice in Sri Lanka, these processes are conducted in compliance with an order issued by a competent court of law. The HRCSL has commented that the Commission is vested with quasi-judicial powers and stated that this should not be the case (Economy Next, - 26 -