The Online Safety Act and MP Bimal Rathnayake’s Take on Social Media’s Role in the Election Victories

Photo courtesy of JVP Sri Lanka

A video clip of the JVP MP Bimal Rathnayake speaking at a political rally of the NPP, clearly after the presidential election but before the general election earlier this month, is worth studying for what he notes, and how – beyond the obvious stress and criticism of Hiru TV. My translation of the video clip, which is just shy of two minutes, follows.

There are still one or two who can’t change. This is one of them [pointing to Hiru TV mike on podium]. They did so many dirty things. They were defeated. They should change now. They should tell the public the truth, and develop the media through this. Because of their nefarious deeds, it is the country that’s harmed. We aren’t going to be defeated in the election. [Pointing to the Hiru mike] even if Hiru engage in mud slinging all day, will the NPP be defeated? What do all of you say? We’ve not made the NPP using mainstream media. Isn’t it? Was the NPP made using mainstream media? No. [Holding up his smartphone] The boys and girls in Sri Lanka, the boys and girls from Sri Lanka residing outside the country played the game using their 4″ screens, and 4″ phones and that’s how they made Anura Kumara Dissanayake the president of the country. There wasn’t a single TV channel that went out of the way to help us. Isn’t this the truth? The young people are witnesses to this. They are the ones who stayed up till 1 or 2 in the morning commenting, and posting. [Pointing to Hiru mike] What the hell can they do? It’s good to keep them in order to show how the country was in the past. That degeneracy, that corruption, that blackness, that ugliness – it is only when people see that that they will realise that change is good. You know, like they make museums. Some countries have made museums. To show the crimes of the past. I talk about this not because we have an issue with the media or any fight with them. Even in the past, we never asked the media for help as a party. But what we say is that as Sri Lanka’s culture is changing, surely they should change a bit too, right?

Emphasis mine.

For the record former president Maithripala Sirisena, soon after his election viction in January 2015, also credited social media as central to the campaign that got him elected. This was true then and is a presentation that is even more valid in 2024.

While the thrust and parry of debate in the places I saw this clip posted on Twitter and Facebook was on Rathnayake’s framing of Hiru in particular and the mainstream media in general, I was more interested in what he said about social media’s role in the NPP campaigns.

In Rathnayake’s presentation, which I have no reason to discredit or disbelieve, the NPP’s strategic and sustained mobilisation of partisans and others on social media is what enabled Anura Kumara Dissanayake to win the presidential election. Mr. Rathnayake is now the Minister of Transport, Highways, Ports and Civil Aviation and Leader of the House. His framing and submission in this stump speech would be even more truer in how the NPP’s social media apparatus aided the unprecedented super majority in favour of the party at the general election.

Threat of OSA

The question arises whether this could have happened if the Online Safety Act (OSA) had been fully implemented. I believe it wouldn’t have been as easy.

In fact, what Rathnayake says was done by the NPP to generate awareness, mobilise and promote their campaigns would be precisely the kind of activity that incumbents in power, opposed to the NPP/JVP, would have used the OSA to clamp down on, disrupt, deny the spread of, decry for partisan gain and delete instances of the party’s online content.

In relation to India’s draconian laws, and how they are being weaponised against Arundhathi Roy, I noted earlier this year,

The OSA is to Sri Lanka, what the Unlawful Activities (Prevention) Act is to India in how the law can be used to target critical dissent, activists, and writers. The OSA provides a legal framework to go back in time, de-contextualise, and selectively pick any statement made anywhere online as being somehow violative of the law – thereby holding anyone in Sri Lanka accountable for content, commentary, and online discourse from the first time they ever went online.

Emphasis in original. As far back as February, when Ranil Wickremesinghe was the Executive President, I warned that,

Increased surveillance powers, arbitrarily employed, will lead to harassment of those who highlight, for example, corruption or graft. Arbitrary website and online platform or account blocking abilities will severely impact Sri Lanka’s information environment, shrinking public discourse, and constraining public debate to circumscribed issues, subjects, topics. The lack of robust independent oversight, heightened by the incumbent President’s profoundly worrying stance on the Constitutional Council worsens the ability of biased appointees (who will invariably be apparatchiks) to influence findings aligned with ruling party objectives. I noted the Act’s strategic vagueness also enables limitation of online advocacy, and campaigning during elections that authorities may argue threatens “public order.” Individual politicians, including ruling party MPs may pressure officials to investigate, and limit online commentary, and social media content critical of them, debilitating opposition campaigns.

Emphasis mine.

Had the OSA been fully implemented, what Rathnayake notes in this stump speech around what the NPP did would have immediately and enduringly risked responses through the rubric of the OSA’s unprecedented and unbridled power (interpreted for partisan benefit through pliant magistrates and courts) to undermine the freedom of expression, freedom of assembly, political speech and other related rights that are key to electoral integrity and a free and fair election. From the very first application of the OSA this year, the weaponisation around what constitutes a “prohibited statement” could and, I argue, would have been used against the NPP had the OSA been in full effect.

Given how the Ranil Wickremesinghe government blatantly lied about, and patently misled even the United Nations around the nature, scope, legality and need for the OSA, the full implementation of the law under any government risks asymmetrically harming opposition parties and others who are critical of governance.

This is an active issue. As I tweeted recently in response to police requesting the full implementation of the OSA, and the establishment of the Online Safety Commission (OSC), “The OSC’s establishment will cement implementation of a draconian law against freedom of expression, & other rights in Sri Lanka. OSA also has no relationship whatsoever with cyber scams, for which there are other laws, & frameworks. New govt shouldn’t entertain this ignorance.”

Human rights based online regulations

The police request and Rathnayake’s submission are the best arguments for what I’ve proposed as a human-rights based approach to the regulation of online harms. This article was also translated into Sinhala, and Tamil.

Although I continue to maintain that OSA must be repealed and completely rejected, I acknowledged in the article to Groundviews that given a tragic history of social media’s weaponisation to foment offline violence in Sri Lanka and the very real possibility of this happening in the future as well, realpolitik assessments of the OSA under the NPP presidency and administration “…to completely reject and repeal the OSA may be perceived as taking away a law some in government may feel is a necessary instrument, even with limited application, to stop the spread of incendiary disinformation.”

A human rights framework that undergirds any law, policy or regulation addressing online harms is the only way Rathnayake’s narrative capture holds true for future elections, political communications, activism, mobilisation and the broader post-aragalaya content, and commentary generation that’s critical of the country’s governance.

The only way the NPP can guarantee for others in the future, in the same way they understand how social media mobilisation was integral to their electoral success and political mobilisation, is by tackling head on the significant, sustained threats posed to democracy by the OSA. To do so meaningfully requires the centring of human rights. One hopes Messrs Dissanayake, Herath and Rathnayake do so to fully realise a change in the country’s political culture and what ails it.