(Phase 1 — Project Spotlight)
Compiled by Team Law and Humanities
Introduction
The Internet has grown to the extent where Wi-Fi is seen as a ‘basic need’ by most of the youngsters. Networking, browsing the internet, surfing social media, scrolling the feed on Facebook or Instagram, sharing posts on Snap-Chat has become a part of the daily routine. Simply put, it is an age where people have started to live as “Netizens”. This hints at the depths of the possible issues in relation to CyberSpace. The focus of this article is on harassment, which takes place in the Cyber Space of Sri Lanka and how the national law provides protection. This article shall provide an insight as to the current situation with a dialogue of the current laws, and policy recommendations.
Cyber Harassment may occur in a plethora of forms. Cyber-Sexual Harassment may comprise of Cyber stalking, child pornography, trolling, extortion, sexting, Cyber bullying, virtual rape and grooming, and many more. On the other hand, hate-speech and defamation on social media platforms are also frequently encountered in Sri Lanka. Government espionage on professionals stemming from cyber security is another issue addressed in this article.These three areas of discussion may give a critical insight to the depths of the issue by looking at the current global trends in relation to the current laws within our jurisdiction.
Cyber-Sexual Harassment
Cyber Crime is one of the most Trending and regularly legislated topics in the Global Context however it is not so much the topic of conversation in Sri Lanka. The rhetoric remains as to whether Sri Lanka as a country does not encounter cybercrime at all. According to the report on “Internet and Broadband Penetration in Sri Lanka (2014)” prepared by the Sri Lanka Police, there are over 25 variants of Identified Cyber and allied attacks to Sri Lankan cyber space (Cybercrimes) including ones such as Cyber Stalking (Harassment) and Child Pornography. Most of the cyber-Harassing predators go unpunished for the simple reason that the victims are reluctant to step forward due to the social pressure which is the case with most offences of that color. This part of the article focuses on Cyber-crimes in Sri Lanka with a special emphasis on all forms of Harassment taking place in the digital world.
The authors of this paper believe that a brief exposition as to the terms used in the above paragraph is worthy before proceeding to the laws. This will reflect upon the potential for development in the laws concerning cyberspace and the severity of certain offences. It will also address how lack of recognition of such a concept will generate a myriad of risks locally, regionally and globally.
Unwanted sexual attention and gender harassment in cyberspace is a common issue which is mostly confronted by women rather than men. The LGBTQ+ community also will become a target of such harassment. Offensive messages, humiliating comments, videos and spamming which often take place in chat rooms or virtual gaming rooms or via emails, comprise gender harassment on the internet. Cyber-stalking on the other hand may include gathering information of the victim and causing emotional distress to the victim by impersonating the victim or allowing others to harass the victim.
Mohammed Chawki in an article about Online Sexual Harassment states that youngsters, mostly teenagers, may not be fully aware of the audience accessing their profile data. Sometimes the information that is made available might not be suitable for a public forum. He likewise distinguishes that status updates in online media might convey certain dangers, most regularly, stalking and tormenting. A 2005 report showed that social media accounts and disclosure of personal information will result in stalkers being able to track their targets using subtle methods. One may argue as to why this would be at issue since being a social media user entails the risk of having one’s personal details disclosed in any case. This argument does not entertain the rights of an individual to be safe in digital spaces and express themselves at will. The purpose of law is to ensure safety. In a study conducted with 799 youth in the age group of 12–17, a 90 percent turnout had responded that they often witnessed rude behavior on the internet which they tend to ignore.
Online Grooming is when an adult actively approaches and seduces children via the Internet with the ultimate intention of committing sexual abuse or producing child pornographic material depicting the child concerned (Kool, 2011). Virtual Rape is defined as an act which could involve non-consensual exposure and manipulation of the character representation in a virtual environment by online avatars. (2021)1 However, this may lack the character of the offence of rape in its conventional sense due to the loopholes in the definition suggested, for this novel concept of ‘virtual rape’. The mens-rea of rape is the absence of consent and the actus-reus will be penal-vagina penetration or oral or anal penetration, however, the concept of virtual rape was created to condemn the creation of real-life aggression by an individual who is actively participating in violent video games. This concept was first recognized in an article that was released in 1993 by Julian Dibbell. One may possibly assume that since the frequency of these concepts being heard in their immediate surroundings is less, it is not something that they have to really worry about. Note, that this term was first coined in 1993, after that in 2003 in Belgium. It has a history of almost two decades. Thus, it depicts that the concept is not as new as it may sound.
In a global village where everything is interconnected, one cannot draw geographical boundaries and therefore with no proper laws and regulations, the data and product transmission will be the most efficient. Meaning this shows the depths of the risks entailed in cyber related offences. It is an alarming fact that even though most victims choose to suffer in silence yet there have been over 400 reported cases in 2020 in Sri Lanka. These cases include blackmail, revenge porn, inappropriate editing of photographs and many more where offenders may have been either total strangers or even life partners.
An effort to understand the existing legal framework in relation to cybercrime in Sri Lanka.
As a result of contributions from the Committee on Law & Computers, Computer Crimes Act №24 of 2007 came into operation. In order to facilitate this act with regard to offences where computers were used as a tool, amendments were made in other legislations such as Penal code. Section 2 of the Act explains the jurisdiction and Section 3- 10 lays down the substantive offences under the Act. Further legislation such as Payment Devices Fraud Act No 30 of 2006 was enacted to provide security for specific offences (Above act dealt with credit card frauds). Substantive offences laid down in the Computer Crimes Act enhance the scope of provisions in Intellectual property Act No 36 of 2003.
Even with regard to Cyber Harassment, express provisions were made in relation to protection of Children by the Penal Code amendments in 1995 and 2006. Penal code (Amendment) №22 of 1995, section 286A can be extended to online child abuse images which meets the minimum requirements under article 9 of the Budapest Cybercrime Convention). Moreover, the 2006 amendment further introduced an offence, requiring all persons providing computer services to ensure that the services are not used for sexual abuse of children. Section 286B (1) sets out the duties of those who provide services via cyberspace to prevent ‘sexual abuse of the child’ as he or she will be in possession of the information regarding the alleged offender’s identity and must assist/ inform the officer-in-charge in the nearest police station. For the purposes of providing more clarity, the operators of cyber-cafes shall be considered as the persons referred under subsection 2 of 286B.
However, evaluating these express provisions, it is evident that these alone would not suffice to combat all forms Cyber Harassment. In fact, it is often criticized that Current laws are inadequate to deal with threats posed by technological development. Even though there are separate laws for offences such as Sexual Harassment there is no comprehensive legislation to address such offences that take place in the cyber space. The only connection we can draw between such offences and substantive offences of the Computer Crimes Act is only via Section 6 which sets out laws regarding danger to “Public Order” (not defined in the Act). The very nature of these provisions causes real issues in practical scenarios when dealing with such offences.
There are other progressive measures such as the establishment of CERT (Computer Emergency Readiness Team) in order to respond to cyber-attacks. However, there are complications with regards to their ability to effectively overcome such matters, taking into account their limited cyber forensic mechanisms. It should be noted that measures which can be taken by a victim should not penalize the victim him/herself but to take proportionate actions against the offender.
It is difficult to find the culprits using the IP address since the perpetrator can use different accounts to approach the victims. It is also noteworthy that harassment in cyberspace is common due to the massive reach.A leaked photo or any personal information of another would gain traction in a matter of seconds. Furthermore, unlike what is seen in traditional forms of harassment, in cyber harassment the offender cannot witness the direct consequences of their actions. This causes the offenders to continue tormenting the victims with no retaliation. This is the flip side of things that shall remain in the dark. In many instances, women play the role of the victim. This is often seen in the workplace and amongst teens.
Ironically Sri Lanka is a pioneer in ratifying treaties, however fails to follow up with the implementation of the laws and in execution of such laws. The lack of case law in this area of study, has restricted the growth of the laws. Furthermore, the lack of initiative by the judges to recognize these as issues has also complemented the growth to be handicapped. The main reason is the lack of public awareness in terms of the existence of such laws which will grant protection for issues such as those listed above under cyber-sexual harassment.
Sri Lanka lacks proper definitions for computer-based offences. The lack of elasticity in the existing laws makes it even more difficult to create the internet a safe place for everyone. Public awareness as to the existence of such offences and guaranteed protection from the law is crucial as many go silent even without taking the effort of reporting to the authorities.
Hate Speech and Defamation
There are many encounters where hate-speech has surfaced in Sri Lanka. Along with the lash out of the Easter Bombing, the upheavals were very much noticeable in this regard. Right to express is a human right, whereas hate speech is something that should be condemned and swept out of the premises as it has the capacity to distort the unison of the people in a multicultural country.
Hate speech is defined as “speech that attacks a person or group on the basis of race, religion, gender, or sexual orientation” (Bytes for All 2014:5). Gullible youth who will be used as tools by those with an agenda(s), with no proper awareness or knowledge will be hyped up and will showcase their bottled-up grievances and hatred in stock. The business failures of one race will be portrayed and consequently seen as gains of the other race, this was something which was seen in the ‘Black July’ horrific incident as well. Forget not, history repeats. Thus, it is worth exploring the economic, political and social relationships of the country which paved the way to such tragic events in conjunction with the recent incident.
The issue back then was between the Sinhala-Tamil ethnicites, while the recently issues emerged between Muslim-Sinhala ethnicites.. The reach in the recent event was alarming, because the rampage was via online platforms. The hatred was seen in shared posts, videos and voice messages which reached both young and old audiences with no boundaries. Use of VPN amidst the social media blockade which restricted the access to the internet temporarily created an impulse in the minds of the youngsters to evade the ban altogether as it was a little thrilling to evade the law.
The Penal Code, International Covenant on Civil and Political Rights (ICCPR), Act №56 of 2007, Prevention of Terrorism Act No 48 of 1979 are the three pillars which contain provisions against hate speech.
FaceBook recruiting more personals to cross-check the hidden meaning which entails hate speech in shared posts, which will not be detected through direct translations, and teaming up with Sri Lankan based youth networks such as ‘Sri Lanka Unites’ to take down hate-speech content shows the engagement in the promotion of peace and reconciliation mentality. The company has been revamping its algorithms for detecting and removing hate speech which violates the peace of the country. This effort coincides with their known attempts at reversing the age-old “race blind” practices in the US. It has been difficult to detect puns and subtle/nuanced variations of the use of the language (mainly Sinhala) and as a result, they were compelled to recruit more persons from the home country itself to conquer the task. Ms. Raisa Wickramatunge2 says that a similar approach should be taken in order to reach the youth and spread ‘flower speech’. Memes, humor and short stories to create a positive impact, spreading love instead of hate.
Defamation on social media platforms, has created a deep level of insecurity in the usage of the internet, where unclassified information gains wings and will be disposed of at the fingertips of some irresponsible persons making lots of unseen chaos in someone else’s life. Social Media is a playground for some, it is the workplace for some, and for some it is the space spent with friends and family. The scale of any wrong information or something which has the capacity of going viral may destroy another’s personal/social/academic life completely. Defamation which takes place in cyberspace has such capacity to reach a wider audience both domestically and internationally. The more a country gets integrated into the global network, the more there should be laws to protect those who interact within such a space.
The Pegasus Project and Sri Lanka
This is a project that is conducted to reveal the attempts of the authoritative governments to knock out pro-democratic journalists and professionals and phish information to contain their interests. This section shows the prospects of the possibilities and shows the need to have strict cyber-security nets and laws in order to make the internet safe for all every individual. The egalitarian democracies that facilitated different opinions and views are heading towards its death-bed, mostly in countries such as Sri Lanka. This should not be to the amusement of the public but should be treated as important, i.e., for the purposes of gaining knowledge in order to understand the extent of growing possibilities.
The right that is infringed under this project is the right to privacy. Many jurisdictions consider the right to privacy as a fundamental human right. However, in Sri Lanka it is yet to be enacted and recognized by the law. It only remains as a recommendation in the chapter on Fundamental Rights in the proposed new constitution for 2015. Furthermore, the proposed Data Protection Act is still in its draft stage, and has to be implemented. However, the Siracusa Principle clearly states that the International Covenant on Civil and Political Rights (ICCPR) should apply in compliance to the international mandate which requires the standards of legality, proportionality and evidence-based necessity. It is to the detriment of many that Sri Lanka lacks strong and efficient data protecting laws and regulations which are often trivialized and violated by the state and non-state actors to further their self-interest behind the veil of national interests.
The literature which focuses on the concept of privacy identifies three dimensions i.e., physical/spatial, informational and decisional privacy. Practices such as CCTV surveillance, unmanned aerial vehicles and live streaming may threaten the spatial liberty of a person whereas sharing data, collection and storage of information without consent of the person may amount to a violation of informational privacy. Decisional privacy will be obstructed when all other forms of privacy are lost and have amounted to a deterioration of one’s self-determination.
The Centre for Policy Alternatives (CPA) reveals that along with the change in the government in 2019, the focus of the suggested constitutional amendments which are pro-democratic, the proposed constitutional reform project will never come into life given the lack of political will. Since harassment in cyberspace is less popular compared to other issues which could attract more votes from the electorate and are more relevant to the majority of the population, commonly such issues will be deprioritized, and under- engaged.
Policy Recommendations
Tracking those who access the Sri Lankan cyberspace and commit offences from other territories is one among many concerns. Suggestions have been made with the help of the Interpol and countries with developed cyber security laws. By consulting stakeholders and non-governmental organizations, it is possible to formulate clear definitions for the legal concepts (stated in this article) which will undergird the breadth and the complexity of the concerns. This also shows the need to have adequate investigations and understanding of the persons handling such cases. This also manifests the need to improve preventative and early intervention methods which help mitigate the occurrence of aforementioned offences by minors and adults. Development of new technologies which could detect harassment, hate speech and defamation in social networking sites (SNS) such as the Fuzzy-rule based system and Genetic Algorithms could be relied upon to create more task-oriented laws.
Systematic awareness programs for all the public servants and officers, special training and equipment to help track the perpetrators is crucial. A dialogue which pushes the government and the law reforming authorities to smoothen the process in terms of implementing new laws without ad-hoc, time-consuming process. Efforts to increase digital literacy is critical in a growing digital world.
The vulnerability and the reluctance to enforce the existing laws and remove the loop-holes in order to improve safety within cyberspace and thereby the country itself, the laws should be made and enforced with the use of proper discretion awarded for those who are in such positions for the right reasons. Incentive and encouragement to report crimes and a general confidence in the Criminal Justice System are essential at a time where politics have seeped into every sector within the country. Impartiality is crucial for the existence of one rule for all. It should not be one law for the elite and another for the tuk-tuk driver.
References
- (2019). Cyber Guardians: Empowering Youth to Combat Online Hate Speech in Sri Lanka.
- (2020). Centre for Policy Alternatives (CPA). Right to Privacy in Sri Lanka. https://www.cpalanka.org/right-to-privacy-in-sri-lanka/
- (2021). Govt. is using Pegasus spyware: Harin. https://www.newsfirst.lk/2021/03/26/govt-is-using-pegasus-spyware-harin/
- [Concept of Virtual Rape-iPleaders]. Retrieved from: https://blog.ipleaders.in/concept-virtual-rape/
- Ariyadasa, A. (2019). Harassment Beyond Borders: Can Victims Be Protected by Cyber Bullying in Sri Lanka? https://www.colombotelegraph.com/index.php/harassment-beyond-borders-can-victims-be-protected-by-cyber-bullying-in-sri-lanka/
- Kodithuwakku, D. An Evaluation of The Legal Framework of Cyber Crimes in Sri Lanka. https://www.juniorbarbasl.lk/assets/files/Article%20by%20Damithri%20Thamila%20Kodithuwakku%20-%20An%20evaluation%20of%20the%20legal%20framework%20of%20cyber%20crimes%20in%20Sri%20Lanka.pdf
- Kuklytė, Jūratė. (2018). Cyber-Sexual Harassment as ICTs Development Consequences: A Review. European Journal of Business Science and Technology. 4. 10.11118/ejobsat.v4i2.137. https://www.researchgate.net/publication/330124310_Cybersexual_Harassment_as_ICTs_Development_Consequences_A_Review
- Mohamed Chawki, Yassin el Shazly, Online Sexual Harassment: Issues & Solutions, 4 (2013) JIPITEC.
- Young People Countering Hate Speech on Social-Media in Sri Lanka. Rapid Context Assessment Report. https://www.sfcg.org/wp-content/uploads/2020/05/SFCG-SRI_Lanka_Rapid_Conflict_Assessment_on_Hate_Speech_2019.pdf
Cyber Harassment under the Legal Microscope
Article by
Phase 1 Lead — Gaweshi Perera
Members — Senel Rathnayake
Editorial
Team Editor:
Ravihari Ravendrakumar
Kalara Perera
Shanali Abeysinghe
Anuradha Abewickramasinghe
Menasha Samaradiwakara
