Revised Cybercrime Bill still impinges on freedom of expression (Pt 1)

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According to a publication in Searchlight newspaper of Aug. 9, 2016 with amendments to the Cybercrimes Bill 2016, we see that there are still problems of anti-freedom of expression clauses in the bill.

1. There is now an offence called libel by electronic communication. This is akin to the criminal libel provision on our books (274) and is internationally recognised as damaging to freedom of expression by international and regional organisations globally. It should be decriminalised and not find its way in our cybercrime legislation. (Reporters Without Borders, International Press Institute, Centre for Law and Democracy, Association of Caribbean Media Workers, Committee on Protection of Journalists, European Court of Human Rights, OAS rapporteurs on Freedom of Expression, Article 19 Global campaign for freedom of expression under the UN Human Rights Committee and International Convention on Civil and Political Rights (to which SVG is a state party since 1981). Also, the passage of online criminal libel in a harassment section of Grenada’s Electronic Crimes Act 2013 was repealed in the Electronic Crimes amendment Act 2014. It was their section 6!

2. Sexual harassment by electronic communication-: This is an entirely new clause recommended by the Minister of Information to the select committee. It is a type of violation of privacy clause. In fact, if you look at clause 14, which deals with Violation of Privacy, you will see an inherent problem in its draft where, one must “capture”, “publish” or “transmit” the image of a “private area” of the person without their consent. It does not require that you publish the person’s identification (like face, etc.). But this sexual harassment clause requires this personal identification information, which includes several things, such as the “voice print” of the person. Now, violation of Privacy is a tort dealt with in civil law but is here now presented as a criminal offence. While this clause will deal with revenge porn matters (although in a criminal sense), it lacks a public interest defence clause, which is necessary for appropriate cases. Example: What if someone publishes the sexually explicit image of a politician or a religious leader in a crime (rape, etc.) with a minor. In so doing, he or she smartly hides the identity of the minor/victim but exposes the identity of the perpetrator to help in crime solving and to expose the corruption of the perpetrator. This clause would criminalise this public interest exposure. Furthermore, Vincentians must ask themselves, what would they prefer? To go to civil court and get financial compensation for the non-consensual exposures of their sexually explicit photos/videos or to have the one who violated their privacy pay a fine to the state or go to jail or both? Regardless, it needs a public interest defence clause as indicated above or such “expression” as it relates to exposure of corruption will be damaged.
3. Cyberbullying is now a separate offence split into two: A. Cyber-bullying of a person other than a child or vulnerable and B. Cyber-bullying of a child and a vulnerable. The penalties for the cyber-bullying of a child or vulnerable have been raised to $150,000 or 3 years in prison or both at summary conviction and $250,000 or 5 years or both at conviction on indictment. This is higher than for the cyber-bullying of an adult who is not a vulnerable. Of course, this means that in a case of a child who is convicted of cyber-bullying another child, he or she, on the face of it, already faces a greater maximum penalty than an adult cyber-bullying an adult. This will criminalise children, the youth and criminalise the truth. Furthermore, the same vague, subjective and legally uncertain words are used to define cyber-bullying such as causing a person “to feel frightened”, “humiliated”, “distressed” and or causing “harm to the health or reputation” of the person. “Vague statutes violate due process because they fail to provide fair notice of what conduct is prohibited; they set an “unascertainable standard.” Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971) And “A statute is vague, and therefore facially invalid, if persons of “common intelligence must necessarily guess at its meaning.” (Quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926). In the absence of clarity, these vague terms open room for arbitrary interpretation by law enforcement and prosecutorial and judicial officers.

To be continued…

Anesia O. Baptiste

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