CYBERCRIME BILL

PRESS RELEASE dated 15th May 2015 by Trinidad & Tobago Publishers & Broadcasters Association (TTPBA) on CYBERCRIME BILL

The Trinidad & Tobago Publishers & Broadcasters Association (TTPBA) is surprised at the reintroduction into Parliament of the Cybercrime Bill, without consultation. On a previous occasion in 2014, when the bill was brought before Parliament, the TTPBA expressed the need for consultation and then Ministers of National Security, Gary Griffith, had agreed to such. Unfortunately the meeting never took place due to the Minister’s departure from office. We raise our concerns publicly as we wish to reiterate the need for
consultation. We again appeal to the government to begin a round of consultation and to work with stakeholder associations so that a better way forward can be defined.

We again call on the Government to maintain the promise set forth by our Honourable Prime Minister Mrs. Kamla Persad-Bissessar at the International Press Institute World Congress on June 2012 where she stated, “In this moment of reflection, and planning for our future, my solemn assurance as Head of Government is that this administration will protect, defend and uphold press freedom and the rights of journalists to “tell the story”. This solemn assurance is also equally made to protect, defend and uphold the freedom of each and every single man, woman and child in our country. We appreciate that a free press is an integral component of our democracy, as the voice of the population which is determined to “have a say” on issues of national importance, and as a channel for important public debates on issues. The free press is also what we all depend on to inform, inspire, monitor and support the interests of our citizens. In Trinidad and Tobago, the freedom of the press and of expression, are constitutionally guaranteed, regardless of whether it coincides or diverges with the views and priorities of the Government, or of State institutions.”
The TTPBA understands the need for a Cybercrime Bill but it urges government to strongly reconsider this and any other legislation which may ultimately result in the demise of our democracy. We look forward to being part of a stakeholder consultation and lending our assistance and cooperation to ensure our democracy is not undermined.

Mailing Address: c/o I95.5FM., 47 Tragarete Road, Cor. Gatacre & Tragarete Roads,
Newtown, Port of Spain.
Contacts: President – 622-9292, Fax 628-7024; Secretary 688-7412
Directors, Daren Lee Sing –President, Kiran Maharaj – Vice President, Christopher Peru - Treasurer,
Rhonda Ottley, Lisa Agard Yaseen Rahaman, Lennox Toussaint, Peter Ames

Media groups express concerns over Trinidad and Tobago cyber crimes bill

IPI urges government to carry out stakeholder consultation

Prime Minister Kamla Persad-Bissessar addresses the nation in the media room of the Diplomatic Centre in St Ann's, Port-of-Spain, February 2, 2015. REUTERS/Andrea De Silva.

VIENNA, May 19, 2015 – The International Press Institute (IPI) today urged lawmakers in Trinidad and Tobago to take into account concerns by media stakeholders over a proposed cybercrime law.

The country’s Parliament is preparing for a third reading on a wide-ranging online crimes bill that targets, among other things, unauthorised data access, cyber-bullying and identity fraud. However, media groups, including the Trinidad and Tobago Publishers and Broadcasters Association (TTPBA) have raised alarm over the bill’s potential to chill investigative journalism in the twin-island Caribbean state.

At issue are two clauses, Arts. 9 and 13, intended to combat illegal data access, but which critics warn could pressure journalists and whistleblowers into silence. Under Art. 9, anyone who “without lawful excuse or justification” obtains privileged computer data faces up to five years in prison. Likewise, under Art. 13, anyone who receives or is given access to privileged data from another person also faces up to five years in prison “regardless of whether or not he knows that the other person obtained the computer data through authorised or unauthorised means”.

Trinidad and Tobago Housing Minister Dr. Roodal Moonilal announced today that Cabinet officials had agreed to meet with the TTPBA as well as the Media Association of Trinidad and Tobago (MATT) on Wednesday morning to address the groups’ concerns. The TTPBA had previously criticised what it viewed as the government’s failure to allow sufficient public consultation on the bill, which was introduced in May 2014.

“We look forward to being part of a stakeholder consultation and lending our assistance and cooperation to ensure our democracy is not undermined,” the TTPBA said in a statement released last weekend, adding that it urged the government to “strongly reconsider this [bill], and any other legislation which may ultimately result in the demise of our democracy”.

IPI Director of Press Freedom Programmes Scott Griffen said IPI reiterated its position – first stated last summer – that Parliament must allow media representatives the opportunity to highlight elements of the bill that may affect journalists’ ability to carry out their work.

“As we have previously suggested, the dangers lurking in Arts. 9 and 13 of the cyber crimes bill are clear,” Griffen said. “Journalists should not face criminal prosecution for divulging information in the public interest and this bill does not provide any safeguards against such prosecution. Our position is that the bill in its current form is a threat to press freedom and the right to information in Trinidad and Tobago and should not be passed.”

He added: “In order to improve the measure, it is essential that the government and Parliament take into account the concerns of TTPBA and MATT, who understand the ways in which it may negatively affect their work.”

Other jurisdictions in the Caribbean region have grappled with drafting properly balanced cyber crime measures, Griffen noted. The legislature of the British Virgin Islands faced an outcry from journalists and international press freedom groups after passing a law that included a clause providing up to 15 years in prison for anyone who publishes unlawfully obtained information from a “protected computer”. Lawmakers ultimately passed an amendment to provide a public-interest exemption.

INITIAL COMMENTS ON CYBERCRIME BILL MARCH 2014

The Cybercrime Bill provides for the creation of criminal offences related to cybercrime and for other related matters.

The government recognizes that the Bill would be inconsistent with the guaranteed human and fundamental rights in sections 4 and 5 of the Constitution since the Bill has endorsed on it that recognition. The government therefore acknowledges that the Bill, if made law would be inconsistent with the human rights, including freedom of the press.

The Bill creates offences in respect of accessing and obtaining information from a computer system, in creating and/or producing and/or distributing a computer device or program, in receiving and/or storing computer data. The Bill will create criminal offences of computer related forgery, computer related fraud, sending multiple email messages which are not solicited which causes harm to persons or damage to a computer and the offence of harassment through the use of electronic means with intent to cause emotional distress.

Clause 23 imposes liability for offences committed by a body corporate or any person purporting to act in such capacity. Such an offence is committed if the court is satisfied that a director, manager, secretary or other similar officer of the body corporate or any person who purports to act in such capacity –

  • committed in or consented to the commission of the office; or

 

  • failed to exercise due diligence to prevent the commission of the offence.

 

the director, manager, secretary or other similar officer or person purporting to act in that capacity also commits an offence.

The other clauses of Part (III) deals with other enforcement provisions of the Act and Part (IV) with Internet Service Providers and Part (V) with Child Offenders.

 

INITIAL SUMMARY OPINION

The Constitution of the Republic of Trinidad and Tobago in Section 4 (k) guarantees the freedom of the press. This freedom is regarded as a primary right in a democracy and a right without which effective rule of law is not possible. The press is involved in investigating and securing information which it has a duty to communicate to the public. The public depends upon the press to get information about the functioning of government and generally to assess whether government is working for the public or against it. The press plays a very important role in exposing government if there is official corruption, misconduct or abuse or misuse of power.

The free communication of information, opinions and arguments about governance and the policies of government are essential ingredients of truly democratic government. These are values which the Constitution aims to protect. The press plays a central role in controlling government and safeguarding democracy and the rule of law.

Chapter 1 of the Constitution in which the human and fundamental rights are guaranteed imposes a fetter upon the exercise of the plenitude of powers by the executive arm, the judicial arm or the legislative arm of the State.

See the decision of the Judicial Committee of the Privy Council in the case of Hinds v The Queen Privy Council Appeal Nos. 4 and 5 of 1975 see page 5 per Lord Diplock which states:

“The more recent constitutions on the Westminister Model, unlike their earlier prototypes, include a Chapter dealing with Fundamental Rights and Freedoms. The provisions of this Chapter form part of the substantive law of the state and until amended by whatever special procedure is the exercise by the Legislature, the Executive and the Judiciary of the plenitude of their respective powers.”

The effect of this decision is that there is a positive obligation on the State whether by its actions or inactions to protect the human and fundamental rights guaranteed in Section 4 and 5 of the Constitution. The Parliament therefore as the legislative arm of the State in putting forward Bills to Parliament and/or in enacting them, must take steps to ensure that the freedom of the press is not subverted or violated in anyway. Since the functions of the press includes the press taking steps to secure information by investigation or otherwise to communicate that information to the public to have the maximum effect, it is the constitutional duty of the government and the Parliament to ensure that there are no restrictions or obstacles placed in legislation to obstruct and/or intimidate the press in discharging its functions to the public.

The computer and the internet are important tools and systems which the press must use in order to obtain, secure or get the required information for it to perform its duty to the public. If restrictions are placed in a law which could adversely affect the ability or the right of the press to use the computer and the internet to discharge its duty that would amount to interference with freedom of the press. Similarly, if the press in the discharge of its functions in using the computer and the internet can by the provisions of a law be intimidated (risks of criminal prosecutions) in the bona fide discharge of its duties that also would amount to an obstruction and/or restriction of the press in the discharge of its duties to the public.

The summary of the material provisions of the Bill stated above demonstrates the risks which would be involved by journalists and the owners of media houses including their employees. The provisions of the Bill certainly place restrictions and/or obstructions to the free discharge by journalist and the owner of media houses in the discharge of their duties to the public as members and owners of the media.

There are restrictions, obstructions and risks which journalists and media houses would have to endure if the Bill becomes law.  It would be difficult to amend every impugned Clause of the Bill to have provisions to protect the press. It would be difficult to rewrite and revise each Clause with the requisite drafting in the limited time available. 

RECOMMENDATION

Under this circumstance we recommend that the government stay the Parliamentary process to enact the Bill until the media has given to it a redrafted Bill or until government redrafts the Bill including input from stakeholders, such as TTPBA, to ensure that the Bill does not violate the freedom of the press and that it has the necessary safeguards to protect and promote the freedom of the press. 

The following are examples of flaws in the Bill, which are a hindrance to free media. 

Section 13 is anti-free speech, anti-knowledge and anti-whistleblower law.  It makes it illegal for someone to receive any evidence of wrongdoing.  Receipt of evidence is essential for any investigation!  This clause would make the police unable to undertake investigations of wrongdoing, both in the traditional non-electronic and electronic spheres!   The problem is that this provision tries to deal with "unauthorised" access to data, as opposed to unauthorised access to computer systems.   The Cybercrime is usually, in best practice, associated with the latter (as evidenced in Section 5), not the former.  

Indeed, the question arises as to whether there is existing law which makes the having custody of information illegal.  This is anti-intellectual, anti-transparency and anti-development.   The closest possible thing in prevailing domestic law to "having of information" being an illegal action would be unauthorised use of intellectual property, and even then

(i) the mischief is the unauthorised copying or distribution without the authorization of the copyright holder; and

(ii) the penalty ascribed to this "mischief" is far more punitive than that which exists in law. 

Further, this section makes someone's innocent and ignorant receipt of information a criminal offence!  This is unheard of!!

Section 21(3):  this provision says it is illegal to share information about an individual if it is deemed by that individual embarrassing, even if it is true!!  Is there a provision in prevailing law that is so oppressive on free speech?  This says that one commits an offence, even if there is no libel or slander!!!  Further, by the drafting of this provision, the offence outlined in sub (b) is not even associated with the use of a computer system!  In effect, if I am informed that a new neighbour is a convicted child molester, even though this is true, it would be an offence to inform my other neighbours about this fact.  Indeed, this would apply if the rumour is as banal as being aware that "a man get horn."  This provision makes gossip illegal!  This provision would restrict the courts from publishing, either on its website or in its annual reports, that persons have been divorced, declared bankrupt or any other such update as evident pursuant to the completion of cases!!!  Section 21(3) should be deleted.

Section 26 (b) should be reviewed in the context of the Data Protection Act, and the Electronic Transactions Act.  The former needs to be considered because this act would be in breach of the Privacy Principles of the Data Protection Act unless the request for information is extremely specific.  As drafted, this provision does not require the necessary specificity.  The latter is needed as no information can be validated as being an unchanged and accurate representation of what was removed from the "apparatus" in question without the use of Electronic Authentication Products issued by a registered Electronic Authentication Service Provider (EASP).  As the relevant Part of the Electronic Transaction Act has not been proclaimed, there are no registered EASP's in Trinidad and Tobago.

Section 29(1)(a), why is the evidence of an order a secret?  This should be clarified. 

CONCLUSION

There are several other clauses that are dictatorial, a threat to democracy and an abuse of authority, which need to be deleted.  The only way forward is a redrafting of the Bill to allow for its original intention to create criminal offences for cybercrime.  If this Bill is passed, we will have no free media, and no democracy.

Journalists warned: Be aware of being manipulated

Election workshop: Stephen Weeks, right, US Embassy public affairs officer, addresses participants in yesterday’s Journalism Workshop on Elections Coverage at the Embassy’s Public Affairs Section, Briar Place, Sweet Briar Road, Port of Spain. Seated from left are Patrick Butler, Vice President, Programmes, International Centre for Journalists, and Keith Gilges, Chargé d’Affaires US Embassy. —Photo: AYANNA KINSALE

BE AWARE of when you are being manipulated, Vice President of Programmes at the International Centre for Journalists (ICFJ) Patrick Butler urged local journalists yesterday. In an effort to avoid being placed in a comprising position in this regard the media personnel who travel with United States President Barack Obama pay their own way, Public Affairs Officer at the US Embassy Stephen Weeks said yesterday. Association of Caribbean Mediaworkers (ACM) general secretary Wesley Gibbings yesterday said he was ashamed to hear accusations of journalists being paid to write stories by government officials. “Shame on you, if it is true, if there is anybody here or outside shame on you that is my message to those people, all that will do is help to destroy the quality of the journalism that is practised here,” Gibbings said. The statements by Butler, Weeks and Gibbings were made yesterday on the opening day of a two-day training workshop for journalists entitled “Covering Elections in Trinidad and Tobago”. The workshop was organised by the Trinidad and Tobago Publishers and Broadcasters Association (TTPBA) and the Association of Caribbean Mediaworkers (ACM) in collaboration with the United States Embassy and IFCJ. It was held at the meeting room of the US Embassy’s Public Affairs Section in Briar Place in Port of Spain. Among the topics discussed yesterday were “Journalistic Ethics and Coverage of Elections”, “Conflict and Elections”, “Achieving Journalistic Balance and Fairness at Election Time” and “Citizen Participation through Social Media”. “News media are often the most important channel of communication that exists between sides in a conflict, they will speak to each other through us and that is a good thing and a bad thing, it means that we are playing that important role of being a conduit of information between the two sides but it also means it is easy for us to be manipulated,” Butler said. “So we have to be careful in the media to make sure that we are not letting the sides in the conflict use us to their own ends without questioning them on what they are trying to do”. “Be aware of when you are being manipulated, when you are being used by the candidates in the campaigns to advance their ends. It does not mean you don’t report on what they are saying but it means that you ask questions, tough questions of the candidates and the leaders of the (political) parties about why they are doing what they are doing,” Butler said. Paying your way Last year the national spotlight was placed on several local journalists with respect to their relationship with the government. On the heels of allegations that selected journalists were offered $1,000 vouchers by the government at Christmas, came word that the Ministry of Communication offered cheques, ranging between $13,000 to $15,000 to reporters and cameramen who accompanied Prime Minister Kamla Persad-Bissessar on a trip to China during the period February 23-28 last year. The cheques were offered as a “per diem” during the media representatives’ coverage of the Prime Minister’s official visit.

Question political parties

By Darcel Choy Tuesday, March 10 2015

A journalist’s job is never easy but it becomes difficult when accusations and counter accusations are made by political parties during campaigning.

Patrick Butler, Vice President, Programmes at the International Centre for Journalists, said this is when it is most important for a journalist to question claims being made by one person against another.

He was speaking yesterday at the two-day workshop for journalists on covering elections, held at the United States (US) Embassy’s Public Affairs Section, Sweet Briar Road, Port-of-Spain. The workshop is hosted by the Trinidad and Tobago Publishers and Broadcasters Association, Association of Caribbean Media Workers and the US Embassy. Butler was addressing the topic of conflict and elections where he said the media’s role was to correct misconceptions.

“Media often encourages the disputing sides to revise their views and move closer to reducing conflict by showing where they are wrong. So when a party makes an accusation against another party that is simply not correct, you can show that. Don’t simply report it and not challenge it, you have to challenge when accusations are logged against the opposition that are not really true,” Butler said.

He added that another very important thing for journalists to do is to humanise their stories.

“If there’s conflict over a specific issue like corruption we try to humanise that by showing somebody whose been the victim of corruption, who has paid a bribe and is suffering economically because they were forced to pay a bribe,” he said.

Butler also told journalists in attendance that describing the problem in a different way can sometimes reduce tension, so editors and reporters should always look for a different angle that would still attract an audience to the story.

“Good journalism can help re-frame the conflict from various sides,” he said.

Newsday’s Editor-in-Chief Jones P Madeira said elections are the quest and conflict is the by-product of that quest. He said it was desirable that everything be done to eliminate conflict, but professional journalists do not set out to reduce conflict. “As a journalist you seek to present accurate and impartial news,” he said.