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

July 31, 2014

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

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.

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