THE LEGAL REGIME GOVERNING THE INFORMATION COMMUNICATION TECHNOLOGY IN SRI LANKA

Abstract

Introduction ICT is made up of certain basic elements. The elements have all been present since the birth of the technology, but their relative significance and their visibility are still changing. The elements are automation, information, communication, integration, and sensation.1The ICT sector includes computer hardware and software, tele communications, consumer electronics, and Internet-based contents, applications and services.2 ICT stands for Information and Communication Technology, that is, technologies that store, transmit, and/or process information and communication. Although the term can be read literally to include all kinds of information-processing technologies, such as printing presses, Xerox machines, and abacuses, the term is generally used to indicate “modern” or “high” technology, electronic dataprocessing technologies.3The growth of Information Communication Technology (ICT) marks a revolutionary turn in the twentieth century. Compared to other  Attorney -at- Law lecturer in Law, Institute of Human Resources Advancement University of Colombo Lecturer, Department of Legal Studies, Open University centuries, twentieth century is marked by rapid development in the areas of commerce, communication and globalization. The developments made in the ICT sector has had a propound impact on this rapid evolution from Alexander Graham Bell’s telephone to Sir Timothy John Berners-Lee’s World Wide Web. This growth has brought dramatic changes by revolutionizing our customs and traditional methods of conducting business, communication and other activities which were based on paper methods. The days of analogy system with terrestrial transmitters are being rapidly overtaken by digital technology with satellite technology4 .The ICT cluster of technologies emerged around the time of the Second World War and since then they have been the most important driver of global economic and social growth and change. Earlier clusters were based on textile machinery in the late 1700s, the steam engine (including railways and steam ships) in the early 1800s; electricity and steel in the late1800s; and 1P. Seipel, Law and Information Technology: Swedish Views (Swedish Government Official Reports, Stockholm 2002) 2M. Fransman, The New ICT Ecosystem (1st edn, Cambridge, CUP 2010), Preface 3J. Koops et al, Starting Points for ICT Regulation: Deconstructing Prevalent Policy One-liners (1st edn, T.M.C. Asser Press, 2006)28 4A.J. Mambi, ICT Law Book (1st ed, Mkuki Na Nyota, Tanzania 2010), Preface. ©All rights reserved ISSN 1800-055X Vol. Iv the internal combustion engine, oil and petrochemicals in the early 1900s. According to Mambi5 ICT advances since the end of the 20th century have led to multiple convergences of content, computing, telecommunications and broadcasting. The development of ICT has led to significant social, economic and consequently legal changes. Technological change has one of its widest impacts on society and everyday life through ICT.6 The sheer impact of the new developments in the field of ICT necessitated for its proper regulation. ICT law can be identified as that branch of law which tries to regulate the ICT activities of a country. There are no fixed definitions for the term ‘ICT Law’. According to Mambi, it can be briefly defined as, the legal subject that emanated from the development of technologies, the innovation of computers and other related devices, the use of Internet and Electronic Data Interchange (EDI), etc. Law regulates technologies and solves conflicts and co-ordination problems related to those technologies. However, new technologies have had more powerful impacts on nature and on society and on our individual and organisational interrelationships with others. This means that there are also new risks, which must be managed. The new developments in Information and Communication Technologies have significantly affected the traditional legal concepts and brought about the necessity for the review and the reform of the law receptive to modern electronic dimensions. The role of the law is to recognise, regulate human conduct and 5Ibid, Page 2 to enforce such regulation. Law is a method of technological risk management and plays a constantly increasing role in that regard. With the development of ICT, most of the traditional ways in which people used to engage in commerce and communication changed and with it came the instantaneous methods of doing things which would have otherwise taken much longer. However, with these advantages came many risks and disadvantages that needed to be managed as well. Today we speak of online transactions without paper money, and in the same time we also speak of cyber hacking and cyber theft almost like two sides of the same coin. In considering the development of ICT in a Sri Lankan context, it can be said that we have been trend followers rather than trend creators in this arena. Sri Lanka has inherited many of its laws from the British and mainly in the areas of commercial law. Even after gaining its independence, Sri Lankan legislature was very reluctant to part ways with its British inheritance. Even regarding laws which have been enacted in the country regarding ICT have been influenced by the British tradition. Several enactments have been introduced to both take the advantages of the rapid growth in the ICT sector and to tackle the problems created with the boom of the same sector. Even though the ICT boom started to occur from the 1970’s, Sri Lankan legislature did not take cognizance of the fact till the mid 1990’s and it went on from there till the middle of the first decade of the new millennium.

Introduction ICT is made up of certain basic elements. The elements have all been present since the birth of the technology, but their relative significance and their visibility are still changing. The elements are automation, information, communication, integration, and sensation.1The ICT sector includes computer hardware and software, tele communications, consumer electronics, and Internet-based contents, applications and services.2 ICT stands for Information and Communication Technology, that is, technologies that store, transmit, and/or process information and communication. Although the term can be read literally to include all kinds of information-processing technologies, such as printing presses, Xerox machines, and abacuses, the term is generally used to indicate “modern” or “high” technology, electronic dataprocessing technologies.3The growth of Information Communication Technology (ICT) marks a revolutionary turn in the twentieth century. Compared to other  Attorney -at- Law lecturer in Law, Institute of Human Resources Advancement University of Colombo Lecturer, Department of Legal Studies, Open University centuries, twentieth century is marked by rapid development in the areas of commerce, communication and globalization. The developments made in the ICT sector has had a propound impact on this rapid evolution from Alexander Graham Bell’s telephone to Sir Timothy John Berners-Lee’s World Wide Web. This growth has brought dramatic changes by revolutionizing our customs and traditional methods of conducting business, communication and other activities which were based on paper methods. The days of analogy system with terrestrial transmitters are being rapidly overtaken by digital technology with satellite technology4 .The ICT cluster of technologies emerged around the time of the Second World War and since then they have been the most important driver of global economic and social growth and change. Earlier clusters were based on textile machinery in the late 1700s, the steam engine (including railways and steam ships) in the early 1800s; electricity and steel in the late1800s; and 1P. Seipel, Law and Information Technology: Swedish Views (Swedish Government Official Reports, Stockholm 2002) 2M. Fransman, The New ICT Ecosystem (1st edn, Cambridge, CUP 2010), Preface 3J. Koops et al, Starting Points for ICT Regulation: Deconstructing Prevalent Policy One-liners (1st edn, T.M.C. Asser Press, 2006)28 4A.J. Mambi, ICT Law Book (1st ed, Mkuki Na Nyota, Tanzania 2010), Preface. ©All rights reserved ISSN 1800-055X Vol. Iv the internal combustion engine, oil and petrochemicals in the early 1900s. According to Mambi5 ICT advances since the end of the 20th century have led to multiple convergences of content, computing, telecommunications and broadcasting. The development of ICT has led to significant social, economic and consequently legal changes. Technological change has one of its widest impacts on society and everyday life through ICT.6 The sheer impact of the new developments in the field of ICT necessitated for its proper regulation. ICT law can be identified as that branch of law which tries to regulate the ICT activities of a country. There are no fixed definitions for the term ‘ICT Law’. According to Mambi, it can be briefly defined as, the legal subject that emanated from the development of technologies, the innovation of computers and other related devices, the use of Internet and Electronic Data Interchange (EDI), etc. Law regulates technologies and solves conflicts and co-ordination problems related to those technologies. However, new technologies have had more powerful impacts on nature and on society and on our individual and organisational interrelationships with others. This means that there are also new risks, which must be managed. The new developments in Information and Communication Technologies have significantly affected the traditional legal concepts and brought about the necessity for the review and the reform of the law receptive to modern electronic dimensions. The role of the law is to recognise, regulate human conduct and 5Ibid, Page 2 to enforce such regulation. Law is a method of technological risk management and plays a constantly increasing role in that regard. With the development of ICT, most of the traditional ways in which people used to engage in commerce and communication changed and with it came the instantaneous methods of doing things which would have otherwise taken much longer. However, with these advantages came many risks and disadvantages that needed to be managed as well. Today we speak of online transactions without paper money, and in the same time we also speak of cyber hacking and cyber theft almost like two sides of the same coin. In considering the development of ICT in a Sri Lankan context, it can be said that we have been trend followers rather than trend creators in this arena. Sri Lanka has inherited many of its laws from the British and mainly in the areas of commercial law. Even after gaining its independence, Sri Lankan legislature was very reluctant to part ways with its British inheritance. Even regarding laws which have been enacted in the country regarding ICT have been influenced by the British tradition. Several enactments have been introduced to both take the advantages of the rapid growth in the ICT sector and to tackle the problems created with the boom of the same sector. Even though the ICT boom started to occur from the 1970’s, Sri Lankan legislature did not take cognizance of the fact till the mid 1990’s and it went on from there till the middle of the first decade of the new millennium.