If passed in its current form, the proposed Computer Misuse and Cybercrime Act would pose a serious threat to press freedom in the Virgin Islands.
Legislators should amend the bill in order to ensure that the media can continue to operate effectively in this democracy as allowed by the 2007 Constitution, which guarantees the right to freedom of expression.
The underlying intent of the proposed legislation is sound: At a time when cybersecurity is increasingly important — especially to the territory’s delicate financial services industry — the bill is designed in large part to update the territory’s laws for the Internet age. As such, it contains new penalties for data theft, digital child pornography, and other cybercrimes.
But the act also catches the media in its sweeping dragnet: It could subject journalists to million-dollar fines and multi-decade prison terms for publishing the sort of investigative reporting that is badly needed in this territory.
The law, for example, would prohibit the publication of information illegally 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 would be subject to fines of up to $1 million and prison time of up to 20 years. (Meanwhile, the bill’s maximum punishment for the dissemination or publication of child pornography is $250,000 and 10 years in prison.)
We believe the bill would strongly discourage the publication of the sort of sensitive information often used in effective investigative journalism.
Consider the following scenario:
In the course of his or her job, a public official comes across documents that implicate a government minister in corruption. Wanting to do the right thing for the territory, the official downloads the documents and leaks them to the press in contravention of the General Orders that govern public officers. The press publishes the information.
By our reading of the law, the journalists involved likely would be liable to the aforementioned fine and prison term. (As the leaker, the public officer could be subject to even stricter penalties of up to 60 years in prison and $3 million in fines.)
We don’t mean to suggest that journalists should be allowed to break the law in order to obtain information: They are subject to the same laws as other citizens.
But the media should be allowed to publish any information of public interest that comes into its possession. Otherwise, it would have the onerous, if not impossible, task of determining the precise origin of any document it obtains.
Given these considerations, it is hardly surprising that the proposed Computer Misuse and Cybercrime Act has already drawn censure from international watchdogs.
This week the Association of Caribbean MediaWorkers expressed concern about the act and “what appears to be a new wave of oppressive legislation in the Caribbean aimed almost exclusively at online media.”
“The issue at hand is the degree to which such penalties under such regulations generate a chilling effect on free expression and seek to forcibly impose regimes of prior censorship on the media,” ACM General Secretary Wesley Gibbings wrote to the Beacon.
Last week, the Vienna-based International Press Institute expressed similar fears, opining that the VI bill “could lead to the criminalisation of legitimate journalistic activity.” To mitigate this possibility, the non-profit advocacy organisation called for a “clear exception for information in the public interest, as journalists must be free to report on issues that affect democratic accountability.”
We second this recommendation, and note that the child pornography section of the act includes a similar exception for material used for a “bona fide scientific, research, medical or law enforcement purpose.”
Our arguments concerning the proposed bill are not new. The IPI cited a 2004 joint declaration on public secrecy laws from the Organisation of American States, the Organisation for Security and Co-operation in Europe, and the United Nations: “Journalists and civil society representatives should never be subject to liability for publishing or further disseminating [legally secret] information, regardless of whether or not it has been leaked to them, unless they committed fraud or another crime to obtain the information.”
The United Kingdom’s former director of public prosecutions, Keir Starmer, has also spoken recently about the importance of allowing the media to pursue complex investigative stories without fear of prosecution — as long as their work is in the public interest.
To further that end, in 2012 Mr. Starmer issued guidelines for UK prosecutors on assessing the public interest in cases involving the media. The guidelines are quite sound, and the VI DPP’s Office should review them with an eye toward issuing and publishing a similar policy here.
The IPI’s strong response to the proposed law highlights another problem: Besides the bill’s potentially disastrous effects on press freedom in the territory, it would also bring negative publicity from abroad.
To understand this much, one need only consider Grenada’s recently passed Electronic Crimes Bill, which criminalises libel in the country. After strong criticism from the IPI and other media advocacy groups, the Grenada government now plans to amend the law.
At a time when the VI’s financial services industry is facing negative publicity from abroad — which, paradoxically, was probably the impetus behind the proposed bill — the territory needs to show the world that it is committed to openness, transparency and good governance. In its current form, the Computer Misuse and Cybercrime Act, which would affect local and international journalists alike, would send the opposite message.
If this sort of law had been in effect in the United States in the 1970s, journalists at the Washington Post may have been imprisoned instead of receiving Pulitzer Prizes for exposing the Watergate scandal that led to the resignation of President Richard Nixon.
A free press matters greatly to any democracy, and it should be jealously guarded.
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