8 December, 2019

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Legal Action Viable Against ISPs That Block News Sites: Verité Research

Legal action can be taken against Sri Lankan Internet Service Providers (ISPs) that have imposed blockades on certain news websites, think-tank Verité Research has highlighted.

TRC head Anusha Palpita

TRC head Anusha Palpita

In a piece published in today’s Daily Mirror Business section, it has been pointed out that although the government has been blamed for influencing the ISPs to block certain news sites such as Colombo Telegraph, due to the lack of evidence of the blockage being legally instituted by the government the ISPs are vulnerable to legal action in the future.

Presently there are two ISPs listed in the Colombo Stock Exchange and the piece points out that the ISPs can be sued in the future by any of their subscribers or even a virtual class action/ representative action for past damages on behalf of millions of subscribers.

“The larger the subscribers base of the ISP, the greater the vulnerability,” it notes.

The piece further notes although the TRC is legally entitled to license and exercise oversight to ISPs under the Sri Lanka Telecommunications Act – it does not grant any legal right for the TRC to express right to the ISPs to issue any arbitrary directive to block or restrict access to some websites at its own discretion.

It points out the laws have been carefully drafted in fact to be on the contrary – among the general objectives of the Act being to ‘to ensure that operators are able to carry out their obligations for providing a reliable and efficient service free of undue delay, hindrance or impediment’.

Hence, Verité points out that:

1. No other authority, not even the president, is empowered to give a directive to the ISPs, apart from the TRC –directives to the ISPs can be lawful only when they come through the TRC.

2. Directives from the TRC should have been received in writing by the ISPs and available for examination by a court of law. Principles of administrative law wouldn’t ascribe credibility to claims of receiving directives only orally.

3. The TRC has no power to issue directives at its whim and fancy. The directives of the TRC are lawful only when they conform to the Legality-Test.

Therefore, it notes that if an ISP is unable to establish that the blocking of a website has been done with proper due diligence in respect of the above, then it can be accused of having acted illegally. In order to establish its actions have been legal, it would need to be able to provide evidence of a request from the TRC which cites the relevant published decisions of the government or asserts itself to be based on written directives of the minister.

The piece has also stressed on the importance the basic right of any customer of an ISP to know the limits imposed on the service for which she is paying.

“It is curious that despite the significant public concerns no Sri Lankan ISP has so far made the list of sites that they block public. The failure to share this information can be seen as increasing their culpability, in the event that the blockades themselves are one day found to be illegal,” it notes drawing examples from the Internet giant Google, with the manner in which it deals with situations if it is pressured governments of politicians to act in way inimical to public interest, it either.

“It is curious that despite the significant public concerns no Sri Lankan ISP has so far made the list of sites that they block public. The failure to share this information can be seen as increasing their culpability, in the event that the blockades themselves are one day found to be illegal,” it notes drawing examples from the Internet giant Google – with the manner in which it deals with situations if it is pressured by governments or politicians to act in a way that is inimical to public interest, by either refusing or resisting requests that are not lawful or not in the public interest or publishing requests made and how they were handled.

Related posts;

President Rajapaksa Phoned TRC Palpita To Ask Colombo Telegraph Blockade

Ranil Demands Rajapaksa Unblock Web Sites

TRC Head Palpita ‘Selective’ And ‘Inconsistent’

Dhanapala Steps Down From Dialog Board

Fears For Ad Revenue From Dialog Stops Sri Lankan Print Media From Taking Dhanapala Issue

Dhanapala Must Take A Stand And Resign From Dialog, Condemn Its Illegal, Unethical Behaviour – Kumar David

‘I Give Dhanapala The Benefit Of The Doubt’ Says Radhika

Calling Jayantha Dhanapala A Liar, Or The Tragedy Of Lankan Public Life

Swedish Govt. Appointee Dhanapala’s Unethical Behavior Embarrassment To The SIPRI

‘Dhanapala Must Choose’ Says Saravanamuttu

Picture Evidence: After Dhanapala Addressed BASL Meeting Dialog Blocked Colombo Telegraph Again

Unlawful Restrictions On Media By State Or Private Actors Is A Matter Of Serious Public Concern And Must Be Questioned – Bishop Chickera And Prof. Savitri

Dialog Unblocked Colombo Telegraph For Dhanapala To Address A Public Meeting

Jayantha Dhanapala Is A Liar; Caught Lying Over Silence On Colombo Telegraph Blocking

Jayaratne Says Dhanapala Will Stand By Best Practices, Dhanapala Pussyfoots On Illegal Web Blocking

International Press Institute Urges UN To Ensure Interference With Colombo Telegraph Ends

Colombo Telegraph Has Every Right To Raise Dhanapala’s Conflict Of Interest; Friday Forum Member Speaks Out

Article 19 Slams Ban On Colombo Telegraph Website

Dialog Board Director And Friday Forum Member Jayantha Dhanapala Fails To Stop CT Blockade On Dialog Network

Dhanapala May Be Influenced By Large Payment He Receives From Dialog – Professor Kumar David

‘Dhanapala’s Position Ethically Untenable’ Says Dr. Pradeep Jeganathan

Sara Says ‘Dhanapala – WebBlocking’ Issue Needs To Be Resolved Within The Framework Of Good Governance

Subtle Business Interests More Damaging Than Anti–Democratic Regime: Dhanapala Should Answer Conflict Of Interest Questions – Dr. Nirmal Ranjith

Sri Lanka Blocks Websites And The President Lies On Twitter

Once Again Colombo Telegraph Blocked; Dialog And Etisalat Tamper DNS Responses 

TRC Blocks Colombo Telegraph, Warns Service Providers To Maintain It’s A ‘Technical Glitch’

Colombo Telegraph Blocked, How To Reach Us Now: Sri Lanka Telecom And Mobitel Joins The DPI Club!

Sri Lankan Govt. Periodically Blocked Colombo Telegraph In 2013: US Human Rights Report

History of Colombo Telegraph blocking

First -December 26, 2011 – We are blocked but we will not be stopped

Second – May 8, 2012 – Colombo Telegraph Blocked Again

Third – March 29, 2013  – Sri Lanka Blocks Colombo Telegraph and Selected Tweets: Colombo Telegraph Unblocked

Fourth – August 23, 2013 – Colombo Telegraph Blocked, How To Reach Us Now: Sri Lanka Telecom And Mobitel Joins The DPI Club!

Other attempts 

October 26, 2012 – Colombo Telegraph Was Hacked

August 9, 2012 ColomboTelegraph Password Cracking Attempt Blocked

Freedom House Report: Freedom On The Net 2012, Sri Lanka Is A Country At Risk

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Latest comments

  • 3
    0

    TRC head Anusha Palpita

    “Legal action can be taken against Sri Lankan Internet Service Providers (ISPs) that have imposed blockades on certain news websites, think-tank Verité Research has highlighted.”

    “In a piece published in today’s Daily Mirror Business section, it has been pointed out that although the government has been blamed for influencing the ISPs to block certain news sites such as Colombo Telegraph, due to the lack of evidence of the blockage being legally instituted by the government the ISPs are vulnerable to legal action in the future.”

    What about a class action lawsuit by the subscribers for the unauthorized and selective blockage of services.

    Also do a fundamental rights fundamental rights class action petition to the supreme court. Let it be put on record, and make them act ans spend resources to defend their illegal Shillong activities.

  • 4
    0

    Legal action can be instituted where rule of law is upheld not in banana states where law of the jungle prevails.
    Our present CJ itself is an illegal appointment . Where do we go.

    MARA AND GORA CALLS THE SHOTS WHEREVER ONE GOES FOR JUSTICE. WHAT DO YOU EXPECT.

  • 0
    0

    Telecommunication today, is a vehicle of access to speech of others and a means of expression of ideas, constituting speech. The usage of printed newspapers are declining and the use of electronic newspapers and news websites are increasing. Way back in 1980’s when the Telecom Act was drafted, this aspect was not foreseen.

    It s interesting to note that a Media authority, proposed in late 1990’s, which had some similarities of the Telecom Act, was knocked down by requiring it to be passed by a two thirds majority in Parliament and a referendum.

    It is also interesting to note that the guy today who is heading the Telecommunication sector was the head of the Government Information Department before, an ideal candidate to control content in the electronic media.

    I, for one would not advocate the abuse of Telecommunication to create mayhem. But given the powers in today’s context, it should not be used to clamp free speech.

    People who have brains would use their critics to their advantage, others clamp them down.

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