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.