Last year, a government audit of the BVI Ports Authority’s troubled cruise ship pier development alleged that officials “largely ignored” the proper tendering guidelines, adding that their behaviour raised concern about potential conflicts of interest.
The audit hadn’t been made public, but in October copies were leaked to several media outlets, including The BVI Beacon, which published articles based on its contents.
The fact that such articles could be considered criminal under the Computer Misuse and Cybercrime Act, 2014, which House of Assembly members unanimously approved with amendments last Thursday, raised concern from Julian Fraser (R-D3).
The bill, he told the HOA, might make public officers reluctant to share information with the media or any residents.
“How do they know what information to give, and what is the problem for a document such as the one that was published online, the auditor general’s report, to be published in the media?” Mr. Fraser asked during debate on the bill. “What’s the problem with that? Why all the secrecy with that?”
Praise and concern
Since the bill was Gazetted on Feb. 6, it has been defended by several legislators, who say it will protect the territory against computer criminals and child pornographers. Supporters believe it will serve as a much-needed safeguard both for the financial services industry and for all residents.
But other observers and international press freedom groups have criticised Section 13 of the law, which they say will have a chilling effect on the right of freedom of expression.
According to a copy of the final act obtained by the Beacon, the section levies maximum penalties of a $500,000 fine and 15 years in prison for publishing data obtained unlawfully from a “protected computer,” a category that includes national security, international relations, financial services businesses, public transportation, and other areas.
These maximums were reduced from the penalties contained in the original version of the law — $1 million and 20 years in prison — after several lawmakers voiced concerns last week that they were too high.
Additionally, legislators modified Section 13 to allow whistleblowers to provide confidential data that exposes wrongdoing to a “lawful authority” without being penalised under the act.
That protection, however, was not extended to whistleblowers who provide confidential electronic information to non-governmental institutions such as the media.
Other bills
At the start of the debate last Thursday, Premier Dr. Orlando Smith addressed some of the “negative publicity” the bill has received.
“Generally, the bill has been erroneously portrayed as innovative and designed to muzzle the right to free speech and the freedom of the press. The truth is the bill is about none of those matters,” he said.
He then listed 14 other jurisdictions that have similar bills: Barbados, Bermuda, the Cayman Islands, Jamaica, Guernsey, Isle of Man, Jersey, Portugal, the United Kingdom, the United States, Australia, Hong Kong, Malaysia and Singapore.
“I make these jurisdictional comparisons, Madam Speaker, simply to stress the point that careful research and analysis has gone into developing this bill before the House,” Dr. Smith told the HOA.
But when this reporter reviewed the laws cited, he was unable to find provisions similar to the VI bill’s Section 13, which prohibits publication of unlawfully obtained data.
Attorney general
When this reporter wrote Monday to Attorney General Dr. Christopher Malcolm to clarify this newspaper’s findings about the differences in the bills, Dr. Malcolm argued that the cybercrime bill only enhances an existing VI law.
“Whether other states have expressly penalised such publication may not be as material as might appear at first blush. In this vein, you will firstly note that section 13 of the Computer Misuse and Cybercrime Act, 2014 takes account of and reforms the now repealed section 272G of the Criminal Code. That section had, since being promulgated in 2007, penalised publication,” he wrote.
The attorney general added that Dr. Smith noted in his HOA statement that the cybercrime bill was being “augmented to suit local circumstances.” Thus, he wrote, the premier’s statement could not “be considered to have been misleading.”
The Beacon requested an interview with Dr. Smith to discuss why the VI’s bill differs significantly from the jurisdictions he listed, but Communications Director Arliene Penn said he wasn’t available to be interviewed.
“Please be advised that AG’s response reflects government’s position,” Ms. Penn wrote in an e-mail.
Legislative debate
All 13 legislators spoke about the bill during a four-hour debate last Thursday, largely in support. Several mentioned the damage done to the reputation of the territory’s financial services industry that took place beginning in April 2013.
That’s when the Washington, DC-based International Consortium of Investigative Journalists in collaboration with several media outlets worldwide began publishing the series “Secrecy for Sale: Inside the Global Offshore Money Maze.” The series relied on a “data leak” of 2.5 million files largely linked to two VI trust companies that were contained on a hard drive ICIJ Executive Director Gerald Ryle said he received in the mail.
“We’ve got to do what we must to protect this industry,” Education and Culture Minister Myron Walwyn said during the HOA debate. “You’re talking about an industry that provides 60 cents out of every dollar of government revenue. Education, health care, roads, water, you name it. Financial services is responsible for what we have in the modern-day Virgin Islands.”
Marlon Penn (R-D8) said the bill introduces a legal framework to protect the territory from modern threats.
“You’re talking about literally obliterating an entire industry, destroying an entire economy with some act of espionage, some act of terrorism,” he said.
Most lawmakers also downplayed fears that whistleblowers would be less likely to come forward under the new act.
“If a minister is doing something that somebody knows clearly is against the laws of the Virgin Islands, you can’t enact a law where you can’t say anything about it. You can’t do that: In a democratic society that is wrong,” Mr. Walwyn said, later adding, “You have to pass information on to the competent legal authority to deal with the matter. The competent authority can’t be the media.”
Several opposition members, including Mr. Fraser and Andrew Fahie (R-D1), said that they supported the bill but that extensive consultations with the public should have taken place first.
At the close of Thursday’s debate, Alvin Christopher (R-D2) asked that the bill be referred to a standing select committee of the HOA for further review, in part to give the public more time to discuss the bill. The HOA voted down that motion.
International reaction
Meanwhile, international media advocacy groups continued to decry the bill as a setback for press freedom.
“We are concerned that this bill was drafted without considering the very serious consequences it could have for the free exercise of journalism and the free flow of information in the British Virgin Islands,” Scott Griffen, a press freedom manager with the Vienna, Austria-based International Press Institute, wrote in an e-mail. “While we certainly welcome the reported reduction in the disproportionate sentences, we are troubled that no public interest exception has been added and that media could face criminal liability in a manner contrary to regional and international standards.”
Andrew Helsop, the director of press freedom for the World Association of Newspapers and News Publishers, spoke similarly. He said the act exposes journalists to “the kind of lack of protection that you see in countries where the rule of law really isn’t respected, and that’s a very worrying development.”
The Caribbean MediaWorkers Association has expressed similar concerns.
The bill, although approved by the HOA, isn’t yet law. It won’t take effect until it receives assent from Governor Boyd McCleary, a process that typically takes weeks.
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