Once again, freedom of speech is in danger in the Virgin Islands.
The House of Assembly is considering amendments to the 2014 Computer Misuse and Cybercrime Act that would stifle the media, criminalise online defamation, put some social media users at risk of arrest, and probably violate the 2007 Constitution.
The bill — which is already drawing harsh criticism from free-speech watchdogs abroad — must not be passed in its current form.
Legislators say that the proposed amendments would help deter nefarious online behaviour like cyberbullying, identity theft and stalking. And parts of the bill — such as a ban on violating privacy by publishing images of someone’s “private area” without consent — are reasonable measures that could help achieve that goal.
But other sections are so backward-thinking that we were shocked to see them included.
One provision, for example, would prohibit using a computer to send a message that is “grossly offensive or has menacing character.” The penalty? Fourteen years in prison and a fine of up to $500,000.
It is easy to see the problems with this vaguely worded clause. What, for instance, qualifies as “grossly offensive?” We don’t know, and the legislation doesn’t explain. Thus, the courts presumably would have to decide. But who can say that they would not agree with a person who feels “grossly offended” by an interview request from a journalist, a WhatsApp message from a former business partner, a reasonable Facebook post by a community member, or any other legitimate communication?
The same draconian penalties are attached to sending an email “for the purpose of causing annoyance or inconvenience.” But here again, what is “inconvenience,” and should causing it really be punished by lengthy prison time? Of course not.
Another clause prohibits using a computer to defame another person, with penalties up to three years in prison and a $100,000 fine. This provision would be a giant step backward at a time when other countries have been decriminalising defamation in keeping with the advice of the United Nations and other international organisations. As the UN has rightly pointed out, victims of defamation already have recourse in the civil courts.
Besides penalising creators of illegal content, the bill would also penalise people who send it, setting up a sweeping dragnet that could catch anyone who inadvertently forwards a problematical email or text message.
Such provisions are unacceptable. But you don’t have to take our word for it.
Already, the VI bill has been harshly criticised by four reputable international watchdogs that advocate for free speech and independent journalism: the Vienna-based International Press Institute; the Paris-based Reporters Without Borders; the New York City-based Committee to Protect Journalists; and the regional Association of Caribbean Media Workers.
As these groups rightly point out, politicians in other countries have used cybercrime laws to target the press and other critics. We hope that this is not VI leaders’ intention, but the watchdogs’ criticisms are only a taste of the embarrassing censure that would come from abroad if they proceed.
Worst of all, we also believe the cybercrime bill probably violates the 2007 Constitution’s protection of free speech.
For all of these reasons, it is deeply troubling that the legislation even reached the HOA in its current form. We don’t know who is ultimately responsible for conceiving the details of the bill: As usual, Attorney General Baba Aziz, whose office typically drafts laws for the HOA, has not responded to requests for comment.
However, this would not be the first time that Mr. Aziz’s office apparently has produced ill-conceived legislation that threatens free speech. When the 2014 Computer Misuse and Cybercrime Act was introduced, it included a clause that would have criminalised the publication of leaked information, potentially punishing legitimate investigative journalism with prison terms of up to 20 years and fines of up to $1 million. (By contrast, the original bill’s maximum punishment for publishing child pornography was 10 years in prison and a $250,000 fine.)
The HOA lowered the penalties somewhat, but passed the law in spite of vocal protests from this newspaper, other media outlets, and several international free-speech watchdogs. Fortunately, the governor didn’t sign off on the law, instead pressuring the HOA to add a clause that protects journalists reporting on matters of public interest.
But like the amendment under consideration now, that bill never should have reached the governor’s desk.
We fervently hope that today’s legislators are more strongly committed to protecting free speech.
It is a good sign that they didn’t pass the bill during their most recent sitting this month, when it was scheduled for second and third readings. Instead, they sent it to be reviewed by a select committee of five legislators: Premier Andrew Fahie (R-D1); Health and Social Development Minister Carvin Malone (R-at large); Education, Culture, Youth Affairs, Agriculture and Fisheries Minister Dr. Natalio “Sowande” Wheatley (R-D7); Opposition Leader Marlon Penn (R-D8); and opposition member Mitch Turnbull (R-D2).
These members should educate themselves about free speech. Then they should remove all the sections that endanger it and push for a bill that would better achieve the government’s stated goals. To encourage them to do the right the thing, residents should contact them and voice their support for such revisions.
Meanwhile, Governor Gus Jaspert should be watching closely. If the HOA ultimately passes the bill without the needed changes, he should send it back.
In the digital age, it is wise to legislate against cyberbullying and other anti-social online behaviour. But it is a grave mistake to stifle free speech in the process.