Last Thursday was a dark day for freedom of speech in the Virgin Islands.
Legislators doubtlessly had good intentions when they passed the Computer Misuse and Cybercrime Act, which is designed in large part to protect the financial services industry by updating the territory’s laws for the Internet age.
However, they failed to omit or adequately amend a section of the law that poses a grave threat to freedom of the press.
Though legislators did lower penalties included in the original draft, Section 13 of the act still could subject journalists to staggering fines and lengthy prison terms for publishing the sort of legitimate investigative reporting that is badly needed in this territory.
The section, for example, prohibits the publication of information unlawfully obtained from a “protected computer” — a category that is very broadly defined to include national security, international relations, financial services businesses, public transportation, and communications infrastructure, among other areas.
Violators are subject to fines up to $500,000 and prison terms up to 15 years, maximum penalties that were reduced from $1 million and 20 years.
Journalists, we believe, could easily run afoul of this act when conducting routine investigative work.
We don’t suggest that journalists should be allowed to break the law in order to obtain information: They shouldn’t, as they are subject to the same rules as anyone else. But we maintain that the media should be permitted to publish any information of public interest that comes into its possession.
Ours is not the only voice to raise alarm about the act. Besides other local media representatives, criticism has come from at least three international media watchdogs: Like the Beacon, the World Association of Newspapers and News Publishers, the International Press Institute, and the Caribbean MediaWorkers Association all have argued that Section 13 infringes on press freedom.
This week, the director of press freedom at the WANNP said the VI act exposes journalists to “the kind of lack of protection that you see in countries where the rule of law isn’t respected, and that’s a very worrying development.”
The IPI, a well-respected advocacy organisation based in Austria, opined that the law could lead to the “criminalisation of legitimate journalistic activity,” and urged that it be amended to include an exception to protect journalists who publish information that is in the public interest.
No such amendment was made last week.
While defending the bill in the House of Assembly, lawmakers explained that cybersecurity legislation has been enacted recently in several other countries and territories, some of which compete directly with the VI’s financial services sector.
They are absolutely right, and similar legislation is doubtlessly needed here.
However, they glossed over an important point: Few, if any, other countries’ cybersecurity laws appear to have provisions that muzzle the press. In fact, after reviewing more than 15 other such laws, we have been unable to find a single one that includes a section that corresponds to Section 13 of the VI act.
Because our review of such legislation was by no means exhaustive, we asked the Premier’s Office and the Attorney General’s Chambers to direct us to any cybersecurity laws that include a similar section. Neither office has complied. Accordingly, we have found no evidence to suggest that Section 13 of the VI law is not anomalous.
Lawmakers also argued last week that legislation similar to Section 13 already exists in the territory. They seem to be on target: A 2007 amendment to the Criminal Code includes related provisions, though it prohibits “dissemination” rather than “publication” of unlawfully obtained material and levies maximum penalties of only $10,000 in fines and five years in prison.
The existence of this law, however, does not justify trampling press freedom. On the contrary, the passage of the new act should have been used as an opportunity to amend the 2007 provision to accord with international standards.
Considering the gravity of our concerns, we also were disappointed about the speed with which the cybercrime law was passed after beingGazetted on Feb. 6.
To our knowledge, government did not publicly request input from the community or media houses, in spite of the concerns that were widely reported here and abroad.
After requests for comment from this newspaper, the government responded only with a short statement defending the law and broadly accusing the “local and international press” of publishing “erroneous” articles on the act. Government then declined to provide further details or to clarify its claim of “erroneous” reporting.
The new legislation — along with the clumsy response to the media’s concerns — is particularly disappointing coming from a government that has repeatedly touted its commitment to transparency.
Though the government has taken some steps in this direction since coming to office in 2011 — tabling more documents in the House of Assembly and making leaders available to the press more often than some predecessors, for example — it has yet to take substantive action toward comprehensive transparency reform.
The long promised Freedom of Information Act has not been tabled in the HOA, and the register of legislators’ interests remains closed to the public.
Now, Section 13 of the Cybercrime and Computer Misuse Act represents a major blow to transparency.
Since the law won’t take effect without the assent of the Crown, we call on Governor Boyd McCleary to send it back to the HOA for amendments that will protect press freedom in this democracy.
But before the act is amended, public consultations should be held, and legislators should reconsider establishing a standing select committee to carefully review the law, as requested last week by the opposition.
The right to freedom of expression is enshrined in the 2007 Constitution, and any potential infringement should not be taken lightly.
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