In December 2017, Groundviews received a list of 13 websites that had been blocked from 2015 onwards by the Telecommunications Regulatory Commission (TRC), via a Right to Information request. The documentation uncovered the process that goes into blocking a website in Sri Lanka. In at least four instances, the order came directly from the Presidential Secretariat, who via the Media Ministry made applications to block specific websites, often on the grounds of providing incorrect or false information about the President.
Subsequent information received by Groundviews confirms that the website Lanka E News was blocked following a complaint from the office of the President in November 2017. This information was initially denied to Groundviews on national security grounds, but has since been released following an appeal to the RTI Commission.
The following were the questions Groundviews posed in the original RTI request.
- Complaints against news websites received by TRC from January 2015 to date and identity of authorities making requests
- Any websites blocked to ISPs in Sri Lanka as a result of complaints from 2015 onwards, and reasons given for the block
- Any complaints against news website Lanka E News in 2017, and identity of State authority making the complaint
- Any order to block Lanka E News in November 2017, identity of the authority making the order and reasons given for the same.
- Records of TRC involvement in blocking Lanka E News, if any.
The TRC only responded to question 2. On question 1, it said the information was not in their possession, custody or control. This was strange as the question asked for complaints received by the TRC, which meant that there should, theoretically be documentary record of it. Questions 3 to 5, which were on information pertaining to the blocking of Lanka E News, was rejected on national security grounds. Lanka E News has a chequered history, having faced 14 contempt of court charges against its editor. The site was also blocked in 2010 and 2011, though the TRC denied involvement in some instances.
In the past, the Rajapakse regime regularly blocked news sites critical to them. As such, news of the block of Lanka E News in November 2017 was cause for concern, under a government that came to power promising a marked change from the previous regime. It was for this reason that Groundviews decided to appeal the decision, arguing that information on the blocking of news websites was in the public interest, and asking on what basis providing this information could undermine national security. The appeal was first heard before the Right to Information Commission on December 29, 2017.
On Question 1, the TRC, represented by Information Officer and Assistant Director – Legal Sujeewa Rodrigo, said that they only received telecommunication-related complaints, while complaints on news websites were lodged with the Media Ministry. Since the request made specific reference to the TRC, they decided not to forward the request, Rodrigo said. However, as the Commission pointed out, public authorities have a duty to transfer requests to the correct public authority in instances where the Information Officer is aware of the correct authority to apply to, under Regulation 4 (6) of the Right to Information Regulations of 2017. Despite the TRC knowing that the information provided would likely be at the Ministry of Finance and Mass Media, they did not forward the request as per the regulations. The RTI Commission subsequently and based on our appeal, directed the TRC to forward the request to the Media Ministry. Groundviews today received acknowledgment that this request has been forwarded to the Presidential Secretariat.
On the question of Lanka E News, the TRC asked for time to make submissions. At the next hearing, on March 23, 2018, the Director General of the TRC, P.R.S.P. Jayathilake also attended. The explanation given by the TRC for using the national security exemption was that the editor of Lanka E News, Sandaruwan Senadeera, was based overseas. Attempts to contact him for corrections on stories published by Lanka E News had been unsuccessful, leading to the decision being made to block the website.
The RTI Commission in its ruling noted that the request made by Groundviews was legitimate and that there was no reason for it to be denied on national security grounds. Below is the scanned copy of the ruling providing details of the case.
During the hearing, the Commission noted – as has been noted before – that while the RTI Act allows for national security to be cited as an exemption, it does not allow for blanket use. The public authority must justify the use of the national security exemption. In this instance, the TRC did not do so, even upon appeal to the Designated Officer, Director General P.R.S.P Jayathilake. Noting this, the Commission ordered the release of the information on Lanka E News.
This is a significant step forward from the past, and before the passage of the Right to Information Act. In a broader political context, national security has been used as justification for everything from the arrest of those who photograph official Government buildings (under the Official Secrets Act) to the unimpeded use of intelligence services and the arbitrary detention of political prisoners even after the end of the conflict. The blanket use of the term, along with legislation such as the Official Secrets Act, has allowed for a lack of transparency on the part of the State.
The information provided on appeal however, was very revealing.
A letter dated November 6, 2017 and issued from the Office of the President noted that the website Lanka E News had been publishing false articles about the President and family members. The letter, signed by Dharmasri Bandara Ekanayake from the President’s Media Unit, notes that the site is run from outside Sri Lanka, and that the office had tried to contact the Lanka E News editor via email and phone. It adds that the President’s Office could not proceed with legal action, since the editor was based outside the country. The letter directed the Director General of the TRC to examine the regulations and “take suitable action”. It was following this letter that Lanka E News was blocked.
Printed copies of specific articles were also provided as evidence that Lanka E News had published false or misleading information.
The Commission did not presume to rule on the veracity of the articles provided.
The articles themselves deal largely with the topic of corruption. The first is around a Russian warship deal, allegedly between
Kili Maharaja of Capital Maharaja Organisation Ltd. and President Sirisena’s son-in-law. While there were several reports of a Gepard 3.9 class warshipdeal to Sri Lanka, between the Government and the Russian state-owned enterprise for defence exports, Rosboronoexport last year, it was not possible to determine whether this was the specific case being cited, since the publishing date on the articles provided has been redacted. Groundviews was unable to find any verified reports in the public domain around the involvement of the President’s son-in-law in the deal, let alone of Maharaja himself.
The next article provided was pertaining to the bribery scandal involving Snowy Mountains Engineering Corporation (SMEC) and President Sirisena. As reputed foreign media reported, an investigation revealed that Sirisena had allegedly requested a “donation” from SMEC while he was Minister of Irrigation. At the time, Sirisena said he had no knowledge of such kickbacks and ordered a probe. There has been no news of the results of that probe, to date. The Lanka E News story focused on the World Bank ban of SMEC. However, the article also makes reference to President Sirisena’s nomination for a Nobel Prize, a rumour that was never verified. It also implies that in banning SMEC, the World Bank acknowledges that Sirisena did accept bribes, which is a stretch.
Another article refers to an agreement with Dialog Axiata for their underwater sea cable. Lanka E News alleges that the President has delayed this agreement on the advice of Kili Maharaja, who does not want what it terms the “broadband backbone” the cable provides to be shared with others. As such, it claims the Malaysian Prime Minister himself reprimanded Sirisena for the delay. These claims were put forward without any supporting evidence to back them. However, another ruling from the RTI Commission revealed that a spectrum telecommunications frequency had been allocated to Mobitel (headed by President Sirisena’s brother, Kumarasinghe Sirisena) bypassing the competitive bidding process. This surfaced in response to a request submitted by Dialog Axiata, which was initially denied by the TRC on the grounds that revealing the information would be prejudicial to commercial interests.
Curiously, a political column written by Wimal Dheerasekara has also been included in this list. The column lambasts Sirisena for delaying the constitutional reform process, claiming that he delayed the SLFP’s proposals on the constitution. The column is fairly merciless and often stoops to personal attacks and insults.
The final article included was around the resignation of Navy Commander Travis Sinniah, claiming the reason for his short tenure was because he was inquiring into allegations made against former Navy Commander Admiral Karannagoda and his use of white vans.
The articles themselves appear to take liberty with facts, putting forward claims without any evidence to back them. The question to be asked is whether this misreporting and perhaps even deliberate misinformation is grounds to block the site itself. In addition, why was information around the blocking of Lanka E News considered a threat to national security, as the TRC argued?
The Colombo Declaration on Media Freedom and Social Responsibility called on the Government to avoid blocking or censoring sites without reasonable grounds, and to promote and protect free speech on the Internet. Sri Lanka does include freedom of speech and expression as a fundamental right in its Constitution, but the issue on whether the Internet differs from other forms of media has not been addressed adequately in court. While there is no composite law on freedom of expression on the Internet, several pieces of legislation, such as the Computer Crime Act, the Sri Lanka Telecommunications Act, the Information and Communication Technology Act, and the Electronic Transactions Act do relate to various “piecemeal” aspects of Internet use. Globally, the former Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression Frank La Rue hasexpressed concern around the use of blocking and filtering as a method of censorship or regulation. He added that the right to freedom of expression must be a norm on the Internet, and any limitations, an exception to the norm.
In the past, there have been attempts to infringe on free expression online – from the Department of Government Information repeatedly asking websites to register in 2011 and 2016, to the Ministry of Media and Information admitting that they had blocked 6 websites on grounds of ‘character assassination’ and ‘violation of privacy’.
In this sense, the news that the Office of the President continues to order the blocking of websites in response to criticism when other methods of legal recourse are available should be met with concern.
A further point of concern is the date on the order issued by the President’s Office – November 2017.
Four months before, on July 4 to be precise, Austin Fernando was appointed Secretary to the President.
On July 19, he was also appointed Chairman of the TRC. This has in fact been standard practice for years, and has been flagged as a point of concern in Sri Lanka’s Freedom of the Net report in 2017.
“President Sirisena has…largely chosen political appointees to run the TRC, with mixed success. Like his predecessor, he appointed his Permanent Secretary, P. B. Abeykoon, as Chairman. The position is reserved for the Secretary to the Minister of Telecommunications under the law, and President Sirisena held the portfolio for a time,” the report notes. It also flags a “disconcerting pattern of TRC compliance with orders from government officials.”
At the time Lanka E News was blocked, Austin Fernando was both Secretary to the President and Chairman of the TRC. Although the letter was addressed to Director General Jayathilake, this does raise questions about the extent to which an industry regulator can maintain its independence, if headed by political appointees.
When contacted, Chairman TRC Austin Fernando said that he had no knowledge of the letter and said the Media Division was separate to the Presidential Secretariat. He directed Groundviews to the Presidential Media Division. Attempts to contact Dharmasri Ekanayake who wrote the letter on Lanka E News have been unsuccessful.
While Lanka E News’ articles are certainly controversial and perhaps even false, in the end blocking the site only brought it more visibility and possibly more traffic – something which ironically would have not occurred, had the President simply dismissed the claims made as those of a mere gossip site or tabloid. The move led to civil society criticism, and heightened reportage around the block itself. During violence meted out against the Muslim community in March, the Government once again blocked social media in an attempt to curb the violence. This method proved ineffective. The enduring fascination of government blocking and banning websites and social media proves time and again the power of the Streisand Effect.
When running for President in 2015, a key chapter in Sirisena’s own manifesto was dedicated to freedom of the press. As Groundviews noted in 2015, the manifesto committed to lifting the block on websites run from abroad. This is a direct quote from that manifesto,
“Matters worth attention and that should reach the attention of society are hidden away, and trivial matters without substance are highlighted in the media.”
A worthy goal and one worth promoting. Yet, instead of working towards this, President Sirisena has himself resorted to the same tactics he condemned in his predecessor. It appears to be the case, and not for the first time with Sri Lankan politics, that the more things change, the more they stay the same.