In the midst of harsh criticism from free-speech advocates about a cybercrime amendment that took effect last Wednesday, the House of Assembly is now considering another proposed law that has drawn fresh concerns about potential censorship and other threats to press freedom in the Virgin Islands.
The Electronic Transactions Act 2019, which was introduced in the HOA in December along with three related bills, is part of the government’s ongoing effort to modernise the territory’s legal framework for the digital age. But it also contains provisions that free-speech advocates believe could have a chilling effect on independent journalism here.
The bill, for example, apparently would empower a government minister to unilaterally order the removal of online news articles he or she believes to be defamatory, and it could also require journalists to disclose confidential sources, among other provisions questioned by press-freedom advocates.
“If you are a public figure, you are subject to criticism,” said Ravi Prasad, the director of advocacy for the International Press Institute, a Vienna-based global network of editors, journalists and media executives dedicated to promoting independent journalism. “And if every criticism is taken as defamation, then it will be impossible for people in a democracy to voice their opinion.”
The bill — which, like the controversial Computer Misuse and Cybercrime (Amendment) Act 2019, is largely a verbatim copy of a Grenada law—includes various measures designed to facilitate and regulate electronic commerce in the territory.
To that end, it would set up a legal framework for electronic contracts, digital signatures, electronic filing and other online activity.
But Mr. Prasad and another free-speech advocate criticised a section of the bill that regulates “intermediaries and electronic commerce service providers” — a category that apparently includes news organisations that post articles online.
Under a provision labelled “Procedure for dealing with unlawful, defamatory, etc. information,” such providers would be required to remove any published material upon learning that it “gives rise to civil or criminal liability.”
Most reputable new organisations would take this step on their own as a matter of responsible practice, but a more controversial provision follows: The bill doesn’t leave judicial courts to identify defamation; instead, it empowers the government minister with responsibility for e-commerce to require a provider to remove problematical material.
Natalie Southwick, of the New York City-based Committee to Protect Journalists, was troubled to see language that would put the power of censorship in the hands of government officials, who presumably would be the ones deciding if information is potentially defamatory.
“It’s giving them a lot of leeway to make these determinations that really should be hashed out in the court system, and within the framework of international human rights,” said Ms. Southwick, who is the CPJ’s programme coordinator for Central and South America and the Caribbean.
Mr. Prasad spoke similarly, and noted that the bill also requires service providers to notify the minister and the “appropriate law enforcement agency” of the source of problematical material.
“That is against the principles of journalism and press freedom,” he said. “Journalists are not supposed to reveal their sources. That compromises their credibility.”
Under the law, he added, information in online records (for example, an email) would be subject to more restrictions than facts shared in person.
“That would also compromise the safety of journalists who are doing investigative journalism,” he said.
Ms. Southwick pointed to the potential for lost news coverage as a result of laws such as the Electronic Transactions Act.
“I think this is something we’re increasingly seeing, at least in the region: states looking for different, maybe not necessarily intentional, ways to institutionalise this kind of censorship, but we’re seeing bills that are reportedly to address everything from cybercrime to terrorism, … and that those have certain provisions in them that allow for pretty broad application of censorship,” she said.
The bill would also require providers to follow a code of conduct drafted at the minister’s direction.
Though the bill does not specify what standards the minister could implement, it does detail the consequences for violators: They would first get a written warning from the minister, who may then make them cease and desist or “otherwise correct” their practices.
After that, a violator could face a fine of up to $50,000 upon summary conviction, and another $1,000 per day as long as the offence continues.
Facing the threat of such penalties, Mr. Prasad said, journalists may overcorrect by opting not to provide legitimate information of public interest.
“This is exorbitant,” he said. “You cannot prosecute journalists just because they are exposing corruption. … That is their duty. It is the responsibility of the journalist to do that. If journalists are not allowed to do this, corruption will never come out.
“Journalists are the watchdogs of society. They speak truth to power. And if they are
not allowed to speak truth to power, then they can’t practise journalism.”
Origins in Grenada?
The proposed Electronic Transactions Act is part of a group of e-commerce legislation that was introduced in the House of Assembly in December and could be passed as early as next Thursday, when the HOA’s next meeting is scheduled.
The bill and three others — the Electronic Filing Act, the Electronic Transfer of Funds Act, and the Data Protection Act — contain language that is largely identical to a set of laws from Grenada.
This is not the first time the VI government has proposed legislation mirroring that country’s laws.
Two of the controversial sections in the VI’s cybercrime amendment are nearly identical to clauses that were struck from a proposed law in Grenada years ago after an international outcry from free-speech groups.
Grenada’s 2013 Electronic Transactions Act, however, remains intact, and much of the language in the VI’s bill is a verbatim copy of it.
An earlier Bahamas law also shares largely matching language: The country’s Electronic Communications and Transactions Act of 2003 empowers a minister to order the removal of an electronic communication, though the maximum fine for failing to follow a government-mandated code of conduct is $5,000. The VI’s maximum is 10 times larger.
Ms. Southwick said it is troubling to see legislators passing near-verbatim copies of bills from other countries, a practice she said could unintentionally codify practices such as censorship.
“I cover Latin America more broadly, and we’ve absolutely seen this happen in other countries, where there are examples of almost complete copying and pasting of legislation that was passed in one country that they’ll then try to incorporate somewhere
else,” she said. “It specifically does affect press freedom and freedom of expression.”
Though such bills are often passed without the intention of infringing on free speech, she said, the harmful provisions still become law.
“I think that’s certainly something legislators that are crafting these laws have to be really careful about,” Ms. Southwick added. “Sometimes it may just be that people crafting this legislation really haven’t considered potential implications for press freedom and freedom of information — or in some cases it’s perhaps a bit more intentional, where it’s a way to exert a little more power over particularly online speech and expression.”
It’s up to free-speech advocates and legislators who are aiming to address issues like cybercrime to be cognisant of the legal by-products of their decisions, Ms. Southwick said.
Attempts this week to reach Attorney General Baba Aziz, whose office often drafts the legislation that comes to the HOA, were unsuccessful, and he hasn’t responded to previous requests for comment on the cybercrime amendment.
Premier Andrew Fahie also did not respond to a request for comment on the Electronic Transactions Act 2019.
Ms. Southwick outlined the potential backlash of the proposed law.
“There’s definitely a chilling effect that comes from this kind of broad legislation and the potential for either fines, or in some other countries we’ve seen jail time for defamation,” she said. “It’s one of those things that’s really difficult to measure — it’s hard to measure the absence of something. It’s hard to say, ‘Here are the cases of self- censorship; here are the cases where a newspaper decided not to publish something.’ But certainly anecdotally, the effect is that the press really thinks twice, or often is forced to think twice about what they’re going to publish and whether they may be potentially liable.”
Ms. Southwick said this is particularly concerning for small news organisations that don’t have the resources to fight extended legal battles. Larger entities, she explained, can then unfairly leverage their smaller competitors’ weakness.
Mr. Prasad added, “The whole thing will have a chilling effect on journalism and the media community. If you face the threat of prosecution and high penalties, then you will be practising self-censorship, and that self-censorship is bad for journalism in any country.”
The concerns Ms. Southwick and Mr. Prasad raised echo ongoing criticisms they and other organisations have expressed recently about the Computer Misuse and Cybercrime (Amendment) Act 2019, which passed the HOA in October and received Governor Gus Jaspert’s assent last week.
Despite previously calling on Mr. Fahie to address “some concerns raised” about the amendment, Mr. Jaspert announced Wednesday evening that he had assented to the bill, bringing the law into effect.
The announcement ended an apparent standoff between the governor and the premier over the bill.
Mr. Fahie came out in strong support of the amended cybercrime bill at the end of last month.
In spite of the governor’s concerns, he did not send the bill back to the House of Assembly to allow for greater protection of free expression. Instead, he said Wednesday, he asked the director of public prosecutions to consider drafting guidelines to make sure offences are “prosecuted fairly and effectively without compromising freedom of speech.”
The legislation is an amendment to a 2014 law, and it is designed to curtail nefarious online behaviour, including bullying, stalking, character assassination and blackmail.
But international media organisations have strongly criticised portions of the bill, which they believe would stifle free speech and hinder the media from doing its job.
Reporters Without Borders, the world’s biggest non-governmental organisation specialising in the defence of media freedom, recently published a letter warning against chilling journalism here.
The Dec. 16 letter also called on the governor to reconsider multiple sections of the cybercrime amendment, which the organisation stated “could be used to criminalise the actions of journalists and others in the general populations who publish and disseminate digital information, as similar laws have been used to control the press in other countries around the world.”
Other organisations took similar action. On Dec. 3, the IPI called for segments of the cybercrime bill to be reconsidered, and the Committee to Protect Journalists urged Mr. Jaspert to reject the legislation or require the addition of protections for press freedom.
Following the criticisms, Mr. Jaspert said in December that he had written to the premier about “some concerns raised” about the bill.
Mr. Fahie, however, stood by the bill. During a Jan. 20 event, he said he saw no need to amend it and called on the governor to grant his assent.
Last week Mr. Jaspert addressed the issue again during a press conference. “The bill is an important bill,” he said. “It has some very important areas that have been flagged to me about speech and what is the right level of speech. Those are important issues. What is the right of the media to cause inconvenience? Is it right or wrong that journalists can cause inconvenience? Those are some of the issues that are being debated.”
Mr. Jaspert said at the time he was still discussing the issue with the premier and hoped to reach a conclusion soon.
A global issue
In other countries, journalists have been arrested and prosecuted under e-commerce legislation.
The Federation of Nepali Journalists claims that dozens of reporters and editors have been arrested and fined since that country’s Electronic Transaction Act came into effect in 2006.
The Nepalese law is similar in some ways to the VI’s bill, but it also includes a provision that is much more restrictive: It outlaws publishing information that “may be contrary to the public morality or decent behaviour” or “which may spread hate or jealousy against anyone or which may jeopardise the harmonious relations subsisting among the
peoples of various castes, tribes and communities.”
Amnesty International, a global organisation of more than seven million people campaigning to end abuses of human rights, highlighted concerns about the law in its 2019 year-end report “Nepal: A year of shrinking freedoms.”
“In Nepal, laws like the Electronic Transactions Act 2006 were used to arbitrarily arrest journalists and artists,” according to the report. “By the end of the year, three new bills — the Media Council Bill, the Mass Communication Bill and the Information Technology Bill — were proposed that would further restrict the right to freedom of expression.”
On Jan. 16, Amnesty International also called on Nepal’s parliament to amend its Information Technology Bill and “ensure that the law is not used to criminalise the peaceful exercise of the right to freedom of expression.”
This bill would allow the government to arbitrarily censor content on social media and online as a whole, according to AI. It could also levy fines up to $13,000 and prison time up to five years.
As governments around the world attempt to curtail online crimes while protecting individual rights such as free speech, Ms. Southwick said they can keep a few best practices in mind.
She suggested that lawmakers remain diligent in thoroughly reviewing proposed legislation for clauses that could be used to stifle free speech.
Ms. Southwick added that lawmakers should also reach out either to local civil society organisations, which are in a good position to weigh in on the unique needs in an area, or international organisations like CPJ that can provide advice based on global norms for protecting human rights.
Mr. Prasad said it is important to protect those rights everywhere.
“If you cannot criticise public figures, politicians, others who are in the public domain as leaders, then how can you practise journalism?” he asked. “It’ll stifle the ability of journalists to report critically, and that will be an attack on the expression of freedom.”