cybercrime bill
Premier Andrew Fahie affirmed his support of recently enacted cybercrime legislation during House of Assembly on Feb. 20. (File Photo: FREEMAN ROGERS)

Legislators on Friday passed an amended version of a bill that international media watchdogs have warned could stifle free speech in the Virgin Islands and hinder the media from doing its job.

It is unclear, however, if the new version of the Computer Misuse and Cybercrime (Amendment) Act 2019 includes the clauses that media rights groups found most objectionable, including provisions that would criminalise defamation and punish “grossly offensive” emails with up to 14 years in prison and a fine of up to $500,000.

The debate over the bill took place in committee on Friday and was not open to the public. Opposition Leader Marlon Penn told the Beacon in a WhatsApp message that the bill — which now requires the assent of Governor Gus Jaspert before it takes effect — included “some additional changes” from the original, but he did not comment further.

Premier Andrew Fahie said HOA Clerk Phyllis Evans could provide a copy of the amended legislation and did not respond to further questions. As of press time, however, Ms. Evans had not provided a copy.

Original bill

In an Aug. 1 HOA meeting, legislators said the bill would help deter cyberbullying, character as sassination, electronic blackmail and other nefarious online behaviour.

The original bill included several amendments to the Computer Misuse and Cybercrime Act 2014 that would increase penalties for several existing offences, add new ones to the list, and give the police broader powers to investigate suspected wrongdoing.

However, media rights organisations expressed concerns about clauses in the bill they said could threaten freedom of the press, including one that would criminalise defamation.

“This sort of law could empower government officials who have a grudge against a news outlet or an individual journalist or a blogger, and it could have a truly chilling effect,” Daphne Pellegrino — the advocacy manager for the North America Bureau of Reporters Without Borders, an international nonprofit organisation that advocates for freedom of information and press freedom —told the Beacon in August. “So my organisation thinks that it would be a grave mistake to include amendments like this in the British Virgin Islands in this law.”

Mr. Fahie told the Beacon at the time that he disagreed, saying in a WhatsApp message that the bill would not infringe on media rights.

“The press will remain free and void of interference and so will everyone else, but now everyone will be responsible in the exercising of their freedom,” he wrote in the message, which did not provide further details to support his claim. “I am [a] firm believer that the media should never be censored and this bill does not seek to do so.”

Legislators from both the government and the opposition touted the potential benefits of the law in the Aug. 1 HOA sitting, noting measures that they said would help ensure privacy and security and better protect minors.

Though some expressed hesitation about the stiff penalties in the bill, little mention was made of other potential drawbacks.

The original bill created new cyber-offences including “sending offensive messages through a computer,” electronic defamation, electronic forgery, electronic fraud, misuse of encryption, electronic stalking, spoofing and violation of privacy.

Other provisions included replacing the words “child pornography” with “child abuse material” so as to include offences like facilitating child abuse online.

The bill defined “child abuse material” as audio recordings or material that visually depicts a child — or a person “who appears to be a child” — engaged in sexually explicit conduct, or that depicts a child in the nude or in a sexually explicit manner.

The proposed law would also strengthen the penalties for many offences under the existing law, including unauthorised computer misuse, unauthorised use or interception of computer service, and unlawfully making available a device or data for a commission of an offence.

Free-speech watchdogs

Representatives of four international free-speech watchdogs — who reviewed the original bill at the Beacon’s request — said in August that the legislation went too far.

“The experience that we have from seeing these laws in action across the world shows that criminalising offences like defamation fosters a climate of fear and self-censorship and intimidation that discourages journalists from tackling sensitive stories and stories that could potentially upset the people who are being written about,” said Ms. Pellegrino, the representative from Reporters Without Borders, which is based in Paris.

Ravi Prasad, director of advocacy for the Vienna-based International Press Institute, also took issue with Section 14A of the VI bill, which criminalises “sending offensive messages through a computer.”

The provision specifically prohibits sending any electronic message that is “grossly offensive or has menacing character” or that is sent “for the purpose of causing annoyance or inconvenience.”

The maximum penalty for breaching the prohibition is a 14-year prison sentence and a $500,000 fine.

Terms not defined

Mr. Pravad explained that the law “does not either define these terms or state who would determine that a message in question transmitted via a computer has actually caused harm.

The decision to prosecute journalists and columnists based on arbitrary definitions decided by policymakers and politicians is extremely detrimental to press freedom.”

He added that such laws have been used to control the media in other countries.

“Many governments around the world are attempting to change existing legal provisions and have come up with new legislations to deal with what they describe as fake news, but in fact it’s a devious ploy to silence critics and independent media,” he wrote in an email.

Wesley Gibbings, a Trinidadian press freedom advocate and former president of the Association of Caribbean Media Workers, also took issue with Section 14A, pointing out that the language in the bill penalises not just the creator of illegal content, but anyone who sends or forwards it.

Journalists in particular might be liable for conviction if they receive such “offensive” content from a source and send it to an editor or to another source for comment, he explained.

“Literally, it means that journalists can be prosecuted and be found guilty for sending by means of a computer” the types of information laid out in the bill, he said. “So obviously the bill is highly problematic.”

Criminal defamation

Anika Kentish, president of the Association of Caribbean Media Workers, said she was surprised to see criminal defamation in the bill, as it goes against the trend seen in the wider Caribbean of removing such laws from the books.

Criminalising defamation, she said, “is not something that people are seeking to do now. It’s something that people are seeking to correct in their law by removing it, not in adding it at this time. Unfortunately, it is not a progressive step. And hopefully the authorities will see that.”

Natalie Southwick, programme coordinator covering Central and South America and the Caribbean for the New York-based Committee to Protect Journalists, said that criminal defamation laws that remain in effect in the region often aren’t enforced, but they still create an atmosphere of intimidation and self-censorship.

“Even when the laws aren’t being enforced, just the existence of those in the legal code can really restrict what journalists feel they can do,” she said.

She added that her organisation opposes criminal defamation.

“Our position is that defamation shouldn’t be adjudicated in criminal court: It should be a civil matter,” she explained. “The international community is moving in that direction. This is really kind of a step backwards.”

HOA discussion

In the Aug. 1 HOA sitting, opposition member Mark Vanterpool (R-D4) said that while he supported the bill in general, he was concerned that the high penalties could be used too liberally.

“Some of the penalties, I am not saying that they are wrong, but when I hear 200 thousands and 500 thousands and seven years in prison, 14 years in prison and so on, it might be justified, … but I want to say that when you’re passing these bills it sounds good until our cousin or brother or friend happens to fall in it,” he said.

However, Education, Culture, Youth Affairs, Fisheries and Agriculture Minister Dr. Natalio “Sowande” Wheatley pointed out that the listed penalties are maximum limits, and that a judge could decide on a lower punishment based on the circumstances.

He also said that stricter penalties would encourage people to behave more responsibly.

“I certainly have to say that given the breakdown of the morality in society, I do see it as necessary, as putting some more firm measures in place to help us to rebalance,” he said, adding, “Sometimes it’s necessary to be extra stern and extra firm to set a particular tone. And then perhaps once you have properly established a standard you can show some more discretion.”

Dr. Wheatley did, however, express some concern that the bill’s penalties might go too far, as did other members including Opposition Leader Marlon Penn and Health and Social Development Minister Carvin Malone.

“We just have to be mindful in terms of how far we go,” Mr.Penn (R-D8) said. “And we have to make sure that the necessary safeguards are in place to ensure that persons don’t abuse the power that has been bestowed upon them to really investigate, to go after persons who they deem might commit some of these crimes.”

For example, he said, someone might be caught with illegal materials simply by being in a group chat or on an email list.

Mr. Malone also noted Section 14P, which would grant police with no warrant the power to arrest someone “reasonably suspected” of committing an offence under the act.

“I’m always wary of the subjective powers that people may have,” he said, adding, “There must be other laws that help to protect one’s right of privacy.”

Dr. Wheatley also expressed mild misgivings.

“There’s a little bit too much potential there to criminalise someone for perhaps a mistake,” he said. “It perhaps might deal a little too harshly in some instances. I think we should be open to that. But I do think we’re going in the right direction.”

Previous concerns

This year is not the first time that cybercrime legislation has raised alarms about free speech in the territory.

When the Computer Misuse and Cybercrime Act was introduced in 2014, 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.

VI journalists and free-speech watchdogs from abroad protested vocally, but theHOA passed the bill anyway after easing the penalties somewhat.

However, Governor Boyd McCleary never assented to the law, instead pressuring the HOA to revisit it.

Legislators subsequently added a clause that helps protect journalists who publish information that is in the public interest.