By: Nalinda Indatissa, PC
Modern technology has made it possible for serious harm, especially harm to children, to occur through online platforms. Recognising this reality, the law creates a system that both punishes offenders, stops harmful content quickly, and fairly defines the responsibility of internet service providers and intermediaries. Sections 21, 24, and 27 together form this legal framework.
Section 21 creates the main criminal offences relating to online abuse of children. It applies to any person, whether inside or outside Sri Lanka, who uses an online account or an online location to commit, or to aid and abet, offences against a child that are already recognised under specified provisions of the Penal Code. The physical location of the offender is therefore irrelevant; what matters is the use of the internet or online platforms to commit the offence. Liability under this section extends not only to the person who directly commits the act, but also to those who assist, facilitate, encourage, or enable the offence through online means.
Section 21 also specifically criminalises the publication of photographs, audio, or video of an abusive or pornographic nature relating to a child. Publishing includes uploading, sharing, forwarding, or otherwise making such material available online. Each act of publication causes continuing harm to the child, and the law treats such conduct as a grave criminal offence punishable with imprisonment, a fine, or both. In addition to punishment, the court may order the offender to pay compensation to the affected child or group of children, recognising the need for protection and restoration.
Although Section 21 does not expressly mention the removal or takedown of online content, it is based on the concept of unlawful publication and communication. Where abusive or prohibited content continues to remain accessible online, the offence and the harm continue. Courts therefore have the authority, as part of enforcing this section, to direct the offender to remove, delete, or stop further communication of such content in order to prevent ongoing victimisation.
Section 24 complements Section 21 by providing a fast preventive procedure. It allows any person affected by the communication of a prohibited statement to apply to the Magistrate’s Court by way of a petition supported by an affidavit. The purpose of this procedure is not punishment, but the immediate stopping of harmful online content. This enables victims or affected persons to seek urgent relief without waiting for the conclusion of a full criminal investigation or trial.
Upon considering such an application, the Magistrate may issue a conditional order directing the person responsible for the communication, or the Internet Service Provider or internet intermediary on whose platform the content appears, to stop the circulation of the prohibited statement. A conditional order requires immediate compliance unless the recipient appears before court within the specified time to show cause as to why the order should not be made final. The law recognises electronic realities and allows such orders to be served by email, social media accounts, or directly on service providers and intermediaries, in addition to traditional modes of service.
A person against whom a conditional order is made must either comply with it or appear before the Magistrate within two weeks. If the person ignores the order and fails to appear, the order becomes absolute and the person commits an offence. If the person appears, the Magistrate conducts a prompt inquiry and may confirm, modify, or set aside the order. Failure to comply with a final order is itself a serious offence punishable with imprisonment or a fine. In addition, the Magistrate may order steps to be taken to block access to the online location in Sri Lanka or to remove the prohibited content from the platform.
Section 27 addresses an important and sensitive issue: the liability of Internet Service Providers and intermediaries. This section recognises that service providers often act as neutral conduits or platforms and should not be automatically blamed for unlawful content created by users. Accordingly, it provides that persons who provide services such as internet intermediary services, telecommunications services, public internet access, computing resources, email, messaging services, or one-to-one voice communication services generally have no liability for prohibited statements communicated through their platforms or networks by third parties.
This protection, however, is not absolute. Section 27 makes it clear that the immunity applies only where the service provider remains neutral. If the provider initiates the communication, selects the recipient, selects or modifies the content, or fails to comply with the provisions of the Act, regulations, rules, or the Code of Practice issued by the Commission, the exemption from liability is lost. In such cases, the service provider may be held responsible for its conduct.
Section 27 also recognises practical realities such as third-party interference, hacking, or misuse. Where prohibited material has been uploaded or interfered with by third parties, or where certain content has been removed within the specified period after the Act comes into operation, the owner of the online account or the service provider will not be held liable. At the same time, failure to adhere to the applicable Code of Practice, resulting in wrongful loss to another person, may give rise to civil liability in the form of compensation.
When read together, Sections 21, 24, and 27 create a balanced legal structure. Section 21 identifies and punishes serious online offences against children and those who assist in such offences. Section 24 empowers courts to act swiftly to stop harmful online content and prevent further damage. Section 27 protects neutral service providers from unfair liability while ensuring that protection is withdrawn where they actively participate in wrongdoing or disregard their legal responsibilities.
In simple terms, the law punishes offenders, stops harm quickly, and protects responsible service providers, while holding accountable those who misuse online platforms or knowingly allow serious harm to continue.
