By Kaveesha Coswatte

Image Credit: Electric Literature

The internet has become a place for us to relate to content and express ourselves with fewer boundaries due to the variety of audiences, both local and global, we may find. For LGBTIQ+ persons, it has become a space to explore their identity or find figures that will inspire them and give them hope for their future. Sometimes, it is a space that brings together other LGBTIQ+  individuals and creates friendships to battle the isolation that one may face due to his/her/their identity. Within a country that criminalizes LGBTIQ+ lives and uses loopholes in the law to discriminate publicly against the community, the online sphere remains where many LGBTIQ+ persons can simply be themselves virtually even if they cannot thoroughly do so in public. This can be distressing to those who identify as part of the community, especially since that research Equal Ground suggests that one in eight adults between the ages of 18-65 years in Sri Lanka identify as LGBTIQ+. Due to these restrictions, exploring and creating content that celebrates and respects LGBTIQ+ is comforting, especially if this is not something they experience in their offline everyday lives. Their virtual identity may be their true identity, and they may find strength and the support they need to be true to themselves without fear.

However, the LGBTIQ+ community still faces significant threats to their lives: their safety and mental health. Not everyone has the privilege of expressing themselves as who they identify directly, as they may not be publicly out yet, and their virtual content may be exposed to their family, friends, or work circles, eliciting dire consequences. In addition to this, specific state laws and policies also raise valid concerns about the wellbeing of LGBTIQ+ persons online. Among these, a recent policy where “anyone creating, publishing, sharing, forwarding, or aiding and abetting the spread of ‘false news’ on social media will be considered to have committed an offense was introduced in July 2020. This was further given approval by the Cabinet to codify these policies along with hate speech provisions as law in April 2021. Per this draft law, such persons deemed to have committed the offense can be arrested under provisions in the Police Ordinance, the Penal Code, the Prevention of Terrorism Act (PTA), the Computer Crimes Act, and other applicable laws. These legal developments remain a critical concern that can be used to control the virtual lives of LGBTIQ+ community members.

How do these laws affect LGBTIQ+ lives online?

Due to the existing laws meshed with the current social stigma against LGBTIQ+ persons, it is no secret that police violence has been inflicted on community members continuously. The Prevention of Terrorism Act, The Penal Code sections 365, 365A (provisions that criminalize LGBTIQ+ relations and 399 (cheating by impersonation provision) and the Vagrants Ordinance has been almost the “Holy Trinity” used to target and arrest without warrant, those who identify as LGBTIQ+ or the Police perceive to be part of the community. Until recently, these laws were used almost exclusively in the physical public sphere, offering some solace for LGBTIQ+ persons who could still turn towards being themselves online. However, with the impending legislation mentioned, this small safe space they can access may also all disappear since this law too will impart the power of arrest without a warrant. Although the State has assured those concerned about the danger of these proposed reforms that these “fake news” arrests will be to curb “disturbances to the peace, disharmony between communities, sexual crimes against women and children, harassment to religious belief, and various frauds,” for those who currently experience how the existing laws are used to perpetuate violence and injustice on the LGBTIQ++ community, this reassurance are merely words in the wind.

Studies already show that it is not easy being LGBTIQ+ online. There are some harassments and barriers that are unique to community members, from being able to access the internet at all to filtering through fake profiles or using an alias to avoid exposure. For example, the research report published by Women and Media Collective, “Disrupting the Binary Code: Experiences of LGBTIQ+ Sri Lankans Online,” highlighted some key issues:

1. where citizens are required to present a national identity card when setting up an internet connection, which creates a problem for transgender persons who have not received a NIC that matches their gender identity,
2. using dating apps are dangerous due to the number of fake profiles, impersonation, and, in some instances, targeted harassment to expose closeted community members,
3. instances where phone repair shops extracting content from phones without consent to post online and
4. “leaks” from members of the LGBTIQ+ community or other individuals,

These real-life problems raise valid concerns regarding the safety of LGBTIQ+ persons in all aspects of using the internet. For example, the study showed that “over 40 percent of respondents’ sexual orientation or gender identity had been broadcasted online without their consent”.

While navigating such issues, if the laws regarding fake news pass through, LGBTIQ+ persons will now have to censor themselves further to avoid possible arbitrary arrest. It is not clear how the proposed laws will define fake news or fake content. Does this mean a trans person portraying themselves as their preferred gender identity will be considered committing an offense under these policies? Will information that LGBTIQ+ member posts regarding their experience at the Police and how they were treated inhumanely based on his/her/their perceived sexual orientation be considered spreading misinformation about law enforcement officers? Can a member of the LGBTIQ+ community facing targeted harassment online by another or a group seek protection under these laws without being subject to further violence or criminalization by the very body he seeks protection from? The current practice of law enforcement bodies does not offer much assurance for this. For example, in May 2020, an openly gay actor/model Ram Dulip was targeted by a YouTuber who used his content as fodder in his videos claiming that homosexuality is targeting children and is the same as pedophilia seeking to destroy Sri Lanka and took the harassment a step further by inciting violence on him and resorting to physical threats. Ram mentioned that he received legal assistance and went to the CID Cyber Crimes Division to lodge a complaint:

“I went with two lawyers to lodge my complaint against him, and the Police refused to take down my complaint. When I asked her (the officer) why, they said that if they take this complaint down, it will look like the Police are supporting homosexuality in Sri Lanka and that if I was a woman or a child, at least they could do something for getting threats. But because I am a man, there are no laws to protect men in Sri Lanka. I was shocked. I pleaded with them not to view me as a gay man, but just as a human being.”

This is just one such case where an LGBTIQ+ member faced online violence and sought protection from the correct authorities. In this type of atmosphere, it is no surprise that the LGBTIQ+ community and Human Rights defenders view such proposed reforms as new ways to oppress their lives more, now even in the virtual space.

Against all this, under our Constitution, our country notes the freedoms of Thought and Conscience, of Expression, of Association (articles 10 to 14), and also recently Right to Information. These rights, on paper, are supposed to apply to all citizens regardless of their gender identity or sexual orientation. The LGBTIQ+ community engages more visibly in the online space now more than perhaps a decade ago, especially the youth population who mainly consumes content through different social media platforms such as Facebook, Instagram, Snapchat, and TikTok. They still do so while facing harassment and risk, but it is clear that just like everyone else in this country engages in the online sphere, they do too and have every right to do so. However, they do so while knowing that the laws that exist and will exist in the future act as a looming predator waiting to pounce.

About the Writer

Kaveesha Coswatte is the Legal and Programs Analyst for iProbono in Sri Lanka and a lecturer at the APIIT Law School. Her work mostly involves legal drafting and reform, providing pro bono legal services to vulnerable minorities: mainly women, children, and the LGBTIQ community, and awareness building. In the field of higher education, Kaveesha has co-authored the BSc Law and Psychology program for the Open University of Sri Lanka, unifying the criminal justice system and psychological aspects that contribute to crime and victimology. She is also a published author in multiple legal types of research based on accessibility to justice, human trafficking and legal status of LGBTIQ persons in Sri Lanka; and poetry focused on contemporary social taboos and gender. As hobbies, Kaveesha is passionate about travelling, singing, slam poetry and volunteering for international disaster relief and refugee education.