The final Cybercrime Bill should be fair, balanced and reasonable

It is a pity that our parliamentary system does not allow for the publication of reports of Select Committees before those reports are submitted to Parliament, to allow for public comment.

Over the last few weeks, a Select Committee has been meeting to examine the Cybercrime Bill which had its first reading in Parliament on May 31, and which, since then, has been the subject of much scrutiny and discussion, including by international organizations who serve as watchdogs for press freedom.{{more}}

As we stated in the brief submission SEARCHLIGHT made to the Select Committee in June, the Bill is generally a good piece of legislation which is needed for the protection of our citizens in the virtual world of the Internet, in the same way as there are laws to protect us in the real world.

We raised concern in our correspondence about Clause 7 of the Bill which pertains to “Illegal acquisition of data”, especially in relation to the consequences for journalists who publish information that may have been “protected against unauthorized access”, but do so in the public interest. We found the offence as stated to be very broad and somewhat vague.

Concerns have also been raised, and rightly so, by others, including the international organizations, about Clause 16, which deals with “harassment utilizing means of electronic communication” or “cyber bullying”. The concern in relation to Clause 16 is the vagueness and subjectivity of the language. What constitutes the “private affairs of another person” and who determines if publication of those “private affairs” caused “fair, intimidation, humiliation, distress or other harm to another person” or “detriment to another person’s health, emotional well-being, self-esteem or reputation?”

Prime Minister Dr Ralph Gonsalves, who is piloting the Bill through Parliament has said in his written response to Delphine Halgand of Reporters Without Borders (RSF) that substantial amendments have already been made to the Bill, including to Clause 16. We have also been advised that Clause 7 has also been amended.

It is very likely that many of the issues raised by persons making submissions to the Select Committee have been dealt with satisfactorily, but we will not know before the second reading of the Bill, which is now scheduled for August 11.

In relation to the issue of criminal defamation in the Bill and the existing provision of criminal libel in our Criminal Code, we would rather they be removed altogether from the law, as journalists should not have the spectre of imprisonment hanging over their heads as we seek to defend our democracies by holding public figures accountable.

The Prime Minister has stated his support for the continued inclusion in our laws of the offence of criminal libel. He has argued that a fine imposed by the court means nothing to a penniless person and there must be some deterrent to an indigent person who sets out recklessly to defame another. But this many not be the only circumstance in which someone could be charged criminally for defamation. The Director of Public Prosecution, who stands as gatekeeper, may decide that a journalist who made an error in something that was published, should be charged with criminal defamation, instead of civilly, which is usually the case, for whatever reason. This is cause for concern.

Leader of the Democratic Republican Party Anesia Baptiste, though not a member of the Parliamentary Opposition, has taken on the whole weight of the opposition since the first reading of the Cybercrime Bill, given the failure of the Parliamentary Opposition to participate in the Select Committee. She was invited by the government to attend meetings of the Select Committee given her interest and work in other jurisdictions on similar legislation.

Some may not appreciate the manner in which Baptiste goes about her work, but she must be commended for her alertness and for drawing to the attention of the public some of the more problematic aspects of the Bill, which might have otherwise gone unnoticed.

As we await the report of the Select Committee, we would like to urge the government to heed the concerns expressed, to not allow the actions of an irresponsible minority cloud its better judgement and to not proceed in haste to enact legislation which we may all come to regret later. Let us not be afraid to take positive recommendations on board and to ensure that the legislation, finally enacted, is fair, balanced and reasonable.