Since coming into power in 2005, the ruling United People’s Freedom Alliance (UPFA) has pursued an ambitious information, communications, and technology (ICT) policy characterized by the widespread provision of internet access and improvement in digital literacy. The new government’s initiatives have also led to the adoption and further development of the decade-old e-Sri Lanka project, which is geared towards building “information infrastructure and an enabling environment, developing ICT human resources… leveraging ICT for economic and social development,”[1] and providing access to “diverse and unrestricted sources of information and means of communication.”[2]

Despite recognition of the internet’s value and impact on economic growth, the military campaign against the Liberation Tigers of Tamil Eelam (LTTE, or Tamil Tigers)—which ended in May 2009—hindered adequate investment in the ICT sector and expansion of the internet across the country. Furthermore, the empowering impact of the internet in Sri Lanka has been undermined by the government’s efforts to arbitrarily block, filter, and regulate online content that provides dissenting views and reportage on sensitive political issues.

In January 2007, internet access and mobile phone connections in the northern and eastern regions of the country were disconnected on account of national security concerns.[3] In the same year, the government made its first attempt to clamp down on online content in response to reportage on the military campaign against the LTTE and civilian casualties.[4] While there is a clear trend with respect to the restriction of online content under the current government, since 2007 there has also been an incremental growth in the number of online news sites, new media initiatives, and the leveraging of social media for socioeconomic and political activism. However, in a post-war context, the arbitrary blocking of websites has continued in 2011—a trend that contradicts the government’s own recognition of the role of ICTs in promoting access to information and free of expression—and the government has expressed a need for greater regulation of online content.[5]

The internet was first introduced in Sri Lanka in 1995, but penetration remained low for many years. Fifteen percent of the population had access to the internet in 2011, up from 2.5 percent in 2006.[6] Government expenditure and private investment in the information technology (IT) sector has gradually increased, leading to the implementation of several projects for the development of an island-wide telecommunications infrastructure.[7] In July 2011, it was announced that WiFi zones would be established with a focus on providing internet access in schools, government buildings, and public transport areas.[8]Notwithstanding a literacy rate of 94.2 percent—the second highest in the region—and increased investment in the sector, a critical barrier to the penetration of ICTs is digital literacy, which stood at 35 percent in 2011 according to the Department of Census and Statistics.[9] Digital literacy is higher in urban over rural areas due to unaffordable personal computers and/or laptops, which affects lower-income families, the lack of a substantive IT literacy program instituted at all schools with adequate IT facilities, and the unavailability of software compatible with the Sinhala and Tamil language. However, as part of the e-Sri Lanka project, the government has supported the Nenasala (Knowledge Centre) project through the Information Communication Technology Agency (ICTA) to address the issue of literacy and access in rural areas.[10] Furthermore, the availability of computers in households both within urban and rural areas is increasing, with higher acquisition rates reported between 2005 and 2009, particularly in rural areas.[11]There are additional concerns about the extent to which broadband penetration, which is the lowest in the region at 6 percent of the population, will increase given relatively high market prices and a low penetration of computers.[12] Nevertheless, reports in March 2011 indicate that the price of commercial broadband had been reduced as service providers lowered leased line prices in order to attract foreign ICT and business process outsourcing firms.[13] In a country with an estimated 16 million mobile phone users and a mobile penetration rate of over 87 percent in 2011,[14] increasing internet access through mobile broadband is also a challenge, limited primarily by expensive 3G/3.5G mobile handsets.[15]In addition to the requirements of an expanding economic sector, the demand for internet access is driven by a growing youth population and its engagement with YouTube, Facebook, Twitter and international blog-hosting services, which are all freely available and widely-used. As of March 2012, there are over 1.2 million Facebook users in Sri Lanka and 1,084 blogs syndicated on the blog aggregator www.kottu.org.[16]The two largest internet service providers (ISPs) are Dialog Axiata and Sri Lanka Telecom (SLT). The latter commands more than 50 percent of the market, and a majority of its shares is owned by the state. The broadband market is competitive and a few firms dominate wholesale access; however, SLT has the largest fiber-optic national backbone.[17] While there is no legal monopoly of the market, there is also absolutely no legal requirement for SLT to sell backbone access to its competitors. In contrast, Dialog Axiata has allowed wholesale access to its backbone network.[18] For mobile phones, the main service providers in the country are Dialog Axiata, which has the largest customer base of over six million subscribers, Mobitel (a subsidiary of SLT with a customer base of 3.8 million[19]), Bharti Lanka (with 1.8 million customers), Etisalat (with 3.5 million customers), and Hutchison Telecommunication (with under one million customers)The regulatory environment under the Telecommunications Regulatory Commission of Sri Lanka (TRCSL) has led to concerns about transparency, independence, and overt politicization.[20] Following the ratification of Eighteenth Amendment to the Constitution in October 2011, which removed term limits to the executive presidency and allows the president to appoint the heads and members of all commissions,[21] any legislative guarantees for the independence of the TRCSL (and other statutory institutions) were subverted. The TRCSL now falls under the ambit of President Rajapaksa,[22] who appointed his permanent secretary as the Commission’s chairman. The regulatory body’s interventions to restrict online content and pronouncements on strengthening online regulation have been viewed as partisan, extralegal, and overly repressive.[23]

Since 2007, there have been numerous cases of arbitrary blocks on websites that report on human rights violations, corruption, and governance issues. These instances have occurred alongside the consistent failure by authorities to provide a legal basis for the blocks, follow due process in terms of judicial intervention in order to legitimize any move to restrict content, or protect partisan interests when it comes to content that is critical of government policies and actions.[24]It is not clear whether the government possesses the expertise and funds to implement sophisticated methods of online content restriction—such as deep-packet inspection (DPI), real time filtering, and offline filtering—although there are unofficial reports that one or two Sri Lankan telecoms might have DPI programs for the enhancement of mobile data services. There were also reports in 2010 of IT experts from China’s military intelligence division assisting the government in blocking “offensive” websites.[25]The current system of censoring online content involves monitoring websites that publish sensitive political content and blacklisting them under the TRCSL, which requests ISPs to block access to blacklisted websites in the country. Any legal requirement for ISPs to comply to requests from the TRCSL to block websites are based on either specific license conditions—which is difficult to confirm given the lack of transparency in licensing—or political pressure. However, existing license conditions for ISPs also involve compliance with directions to act with the consent of the TRCSL and to address any matter that the ministry may find “…requisite or expedient to achieving the objectives” of the TRCSL.[26]In the absence of an independent body for redress, a fundamental rights application challenging the blocking of a website or the imposition of any other restrictions remains the only method for appealing online freedom of expression violations. However, the application is rarely pursued due to a lack of trust in the country’s politicized judiciary and fears of setting a repressive precedent.[27]Since 2007, the regime’s efforts at web censorship have focused primarily on targeting websites that report on human rights issues, government accountability, corruption, and political violence. The frequency with which websites are blocked increased considerably after 2009 when the government began restricting pornographic websites and the police sought to ban access to pornography on mobile phones.[28] However, instances of blocks on websites have not been properly coordinated or comprehensive, with some targeted websites available at times on one or more ISPs and at other times inaccessible on all ISPs. One particular case is Tamilnet.com, which has been blocked since 2007 and continues to be blocked in 2011, but not uniformly across all fixed-line and mobile broadband networks.[29] In 2009, SLT blocked access to most of the Tamil news websites that operate outside the country, but most of these sites were accessible throughout 2010 and 2011. In June 2011, the citizen media sites, Groundviews.org and Vikalpa.org, were temporarily blocked for a day on SLT broadband services but remained accessible on other ISPs,[30] and in October 2011, the news website Lankaenews.com was blocked allegedly due to coverage of intra-party violence associated with the Sri Lanka Freedom Party (SLFP), President Mahinda Rajapaksa’s ruling party.[31]In November 2011, five popular news websites known for their reporting on human rights, governance issues, and corruption were arbitrarily blocked.[32] Prior to this incident, the government and the TRCSL had never admitted to blocking websites but did so in this case on the premise of concerns about defamation and the violation of privacy. In December 2011 and intermittently in November 2011, Colombotelegraph.com, a news and commentary website run by exiled Sri Lankan journalists, was also blocked with absolutely no justification provided by authorities,[33] but is accessible as of early 2012. The authorities have occasionally blocked website domains hosted on the servers of blogging platforms rather than specific blogs themselves,[34] although only a few of the most popular blogs publish political content and dissenting narratives.In addition to its blocking activities, the government has been intensifying its efforts to restrict internet and mobile phone content. For example, the government announced in December 2011 plans to introduce more comprehensive legislation to control internet use, including the use of Facebook, ostensibly to crackdown on child abuse online.[35] On March 9, 2012, the Media Centre for National Security (MCNS) announced that mobile phone SMS news alerts on matters related to “…national security and security forces, the police…” must be approved by the MCNS[36] prior to dissemination,[37] which could result in the censorship of news related to the security establishment. The MCNS, however, did not delineate the possible consequences of failing to comply with this directive and the legal basis upon which it could issue such an order.A majority of the alternative news websites—such as Srilankaguardian.org, Colombotelegraph.com, and Tamilnet.com—are operated by exiled journalists and publish news covering human rights violations, political violence, and corruption, while online news sites of the mainstream media are more likely to self-censor controversial content out of fear of reprisals. In fact, self-censorship “on matters that would damage the integrity of the island” is actually encouraged by the current government.[38] The few pro-government websites in existence are the online platforms of the main state-run newspaper, a broadcasting network, and other news initiatives that are inclined towards the incumbent government.[39]Despite the restrictions on certain ICT content, there are still diverse, free, and widely accessible sources of information, particularly on socioeconomic and political issues written in English, Sinhala, and Tamil. Notwithstanding the intermittent blocking of the Human Rights Watch website during the height of civil war in 2009,[40] all other websites of major international media institutions, human rights organizations, and media rights groups were freely accessible in the country in 2011. The emergence of blogs and social media has contributed to creating a space for the anonymous and pseudonymous critique of governance, development, political process, human rights and policymaking within government. The impact of citizen media initiatives such as Groundviews.org and Vikalpa.org is a demonstration of the increased engagement of human rights activists,[41] political commentators,[42] citizens,[43] and local as well as international journalists[44] who bear witness to critical post-war issues and provide reportage on topics that would otherwise not be covered by mainstream media in the country.

The right to freedom of speech, expression and publishing is guaranteed under Article 14 (1)(a) of the Constitution but is subject to numerous restrictions for the protection of national security, public order, racial and religious harmony as well as morality. The Supreme Court has recognized the “indispensability” of freedom of expression to the “operation of a democratic system” and the importance of wide dissemination from “diverse and antagonistic sources.”[45] However, there is no specific provision under the Constitution that recognizes access to the internet as a fundamental right or guarantees online freedom of expression. Further, the Supreme Court has never had the opportunity to consider the applicability of existing freedom of expression guarantees to the internet.The laws that impact the use of ICTs in the country are focused primarily on computer crimes and intellectual property rights violations, and they allow information contained within computers to be admissible in civil and criminal proceedings. It is also an offense to report on or publish official secrets, information about parliament that may undermine its work, malicious content and any content that could be considered an incitement to violence or cause disharmony.[46] As a result, online content that can be deemed an incitement to ethnic and religious violence, or poses a threat to national security, runs the risk of restriction and/or criminalization.A key issue with the existing legislation is its overly broad scope and lack of detailed definitions, which may be used to prosecute or restrict legitimate forms of online expression. For example, in October 2011, the Ministry of Justice announced that it would introduce new legislation on obscenity in order to prevent the circulation of pornography with specific mention of regulating obscene content on “electronic media.”[47] However, as with previous legislation on obscenity, the ministry failed to provide an exact definition of what is constituted as “obscene.”The Lessons Learnt and Reconciliation Commission[48] (LLRC)—a key post-war commission of inquiry appointed by President Rajapaksa in May 2010—highlighted the importance of freedom of expression and the right to information[49] in its final report, which was released in November 2011.[50] As of March 2012, the government had still not put forward a roadmap or time frame for the implementation of the recommendations detailed in the LLRC’s report.A culture of impunity, circumvention of the judicial process through arbitrary action, and a lack of adequate protection compound the poor enforcement of freedom of expression guarantees. Furthermore, online journalists and bloggers are not afforded the same rights and protection as broadcast and print journalists. In November 2009, the Criminal Investigations Department (CID) arrested a blogger for using the internet to make offensive comments about the president and secretary of defense.[51] No information was provided about the legal basis of the arrest, exact nature of the content, and why this specific case resulted in such action. There have also been arrests based on the content of text messages, revealing the possible existence of a sophisticated surveillance regime. During the 2010 presidential election, the authorities detained opposition supporters who had accused the government of electoral fraud via text messages[52] and other supporters for sending out text messages to organize protests following the announcement of the election results.[53]Despite the fact that extrajudicial surveillance of personal communications is prohibited under the Telecommunications Act No.27 of 1996, this law can be circumvented by an order from a minister or by an employee of a telecommunication service acting in “pursuance of his official duty.”[54] Additionally, there is no provision under the legislation that requires officials to notify a user that s/he is under surveillance. For example, in 2010, there were reports of Facebook and Twitter users being monitored in an effort to clamp down on dissent against the government, raising suspicions that the authorities were either hacking into user accounts or setting up fake accounts for infiltration.[55]The threat to user rights in the country is further exacerbated by the lack of substantive laws for the protection of individual privacy and data respectively, which is extremely problematic given the government’s proclivity for pervasive surveillance.[56] The involvement of Chinese telecoms, such as ZTE[57] and Huawei,[58] in the development and maintenance of Sri Lanka’s ICT infrastructure has also raised concerns about the possibility of backdoor espionage and surveillance,[59] which is in line with international reportage about Chinese telecoms assisting Central Asian states with surveillance or “eavesdropping” technologies.[60] Nevertheless, it is not clear what exact technology or a prospective technical framework for it has been transferred in order to buttress the country’s censorship and surveillance regime.In November 2011, the Government Information Department instituted a registration policy for certain websites, stating that sites “carrying any content relating to Sri Lanka or the people of Sri Lanka” should register with the Ministry of Mass Media and Information.[61] The request was criticized for its lack of clarity and necessity as well as infeasibility, particularly in terms of the possible imposition of liability for content published, the categories of websites that are required to register, and the legal framework under which registration could be imposed.[62]There was also concern expressed about the compliance of ISPs to arbitrary requests for blocking websites without the requirement of judicial intervention. A similar announcement was made in 2010 by the Ministry of Defense concerning the registration of mobile phone users to collect user information for the purpose of “curbing negative incidents,” which included “raising unnecessary alarm or creating panic.”[63] While the directive and penalty of disconnection for users failing to register was never enforced, real name registration and the provision of identity and banking documents has been a standard policy for mobile phone subscription.In December 2011, the operator of a website who challenged the blocking of his site through a fundamental rights petition at the Supreme Court agreed to a settlement with the TRCSL and other institutions. In return for lifting the block on the website, the settlement required compliance with several terms and conditions that included the immediate registration of the website with the TRCSL and Ministry of Mass Media and Information. The website was also required to “delink” other sites blocked by the TRCSL.[64]While the possibility of legal penalties threatens freedom of expression online, online reporters and web users in Sri Lanka have faced various forms of physical intimidation and violence. On January 24, 2010, the Lankaenews.com online journalist and cartoonist, Prageeth Ekneligoda, was abducted and little progress has been made on his case despite widespread international pressure for progress with investigations.[65] It is speculated that Ekneligoda was abducted because of his anti-government writing, and at present, the government appears to have very little concern about the case, opting instead to accuse Ekneligoda of seeking asylum and living in hiding in another country.[66] Sri Lanka is ranked fourth on the Committee to Protect Journalists Impunity Index with nine unsolved murders.

In January 2011, over a year after the abduction of Ekneligoda, there was an arson attack on the offices of Lankaenews.com,[67] which was followed a few months later by the arrest of the website’s editor and another journalist on charges of intimidation and contempt of court, respectively.[68] The attack and increased restrictions on websites as well as the continuing intimidation[69] and assault[70] of mainstream journalists reinforce the chilling effect on freedom of expression in the country and widespread self-censorship.

An additional threat to internet freedom is the rise of cyber-threats, particularly with regard to privacy breaches on social media and email accounts.[71] The issue of technical violence such as cyberattacks against websites is largely focused on the activities of cyber-terrorist networks associated with the LTTE that have attempted to hack into national security networks and carry out web defacement attacks.[72] The government has recognized the need to strengthen its defensive capability in order to prevent further cyberattacks and combat web propaganda campaigns, leading to the purchase of more sophisticated surveillance technology, which could in turn be used to restrict legitimate forms of expression on the internet.