Premier Andrew Fahie doubled down on his support for a controversial new cybercrime amendment this week, responding to criticisms from free-speech advocates for the first time since the law took effect on Feb. 12.
“I am satisfied that the section of which complaint is made does not prohibit or restrict freedom of expression in the sense envisioned by the founders of our Constitution,” Mr. Fahie said while delivering a statement on Tuesday in the House of Assembly.
Governor Gus Jaspert announced Feb. 12 that he had assented to the Computer Misuse and Cybercrime (Amendment) Act 2019 despite concerns about three sections of the law raised by the Beacon and international free-speech advocates.
The act, which makes changes to a 2014 law, is designed to curtail nefarious online behaviour, including bullying, stalking, character assassination and blackmail. However, free-speech organisations strongly criticised portions of the law. Of particular concern, they said, are a clause criminalising electronic defamation and a provision that could punish anyone who sends a “grossly offensive” email with penalties including prison time and a large fine.
The final law was not published in government’s Gazette until Tuesday, even though the governor said it had been enacted 13 days before.
In the HOA, Mr. Fahie justified the law by pointing out that the VI Constitution includes clauses that allow for limitations on the exercise of freedom of expression.
“While I respect the concerns expressed, it is clear that the right to freedom of expression is not absolute and must be exercised without violating or infringing certain other protected rights and interests, such as the right to protection of reputation and national security,” he said.
However, the law has drawn harsh criticism from at least four international media organisations: the Vienna-based International Press Institute, the New York-based Committee to Protect Journalists, the Paris-based Reporters Without Borders, and the regional Caribbean Media Workers Association.
The critics have decried three sections of the law, including section 14A, which criminalises “sending offensive messages through a computer.” The provision — which carries penalties up to 14 years in prison and a fine of up to $500,000 — 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.” It does not, however, explain what messages would qualify.
Free-speech advocates also expressed concern about section 14B, which criminalises electronic defamation and makes the offence punishable by up to three years in prison and a $100,000 fine.
Daphne Pellegrino, a representative from Reporters without Borders, previously told the Beacon that criminalising defamation “fosters a climate of fear and self-censorship” among reporters covering sensitive stories.
Also drawing fire is section 14P, which permits a police officer without a warrant to arrest a person “reasonably suspected” of committing a cybercrime offence.
Dokhi Fassihian, executive director of RWB’s North America bureau, said last week that the organisation was disappointed that the governor signed the bill into law with Sections 14A, 14B and 14P still intact.
“[RWB] stands by our concerns about the potentially chilling effect those provisions could have on journalism in the British Virgin Islands,” Mr. Fassihian said. “It has become increasingly common in recent years in many jurisdictions, not just in the British Virgin Islands: An alleged effort by lawmakers to address a narrow problem leads to expansive and vague laws that can be misinterpreted, or potentially even weaponised, to the detriment of free speech or a free press.”
Section 14A and 14P are nearly identical to clauses that were struck from a proposed law in Grenada years ago after an international outcry from free-speech groups.
The originally proposed version of Grenada’s 2013 Electronic Crimes Bill would have punished “sending offensive messages through communication services” with up to one year in prison — much lighter than the VI law’s penalty — and it would have given police broad powers to make arrests without a warrant.
However, those provisions never took effect in Grenada even though both remain in the VI law.
On Tuesday, Mr. Fahie acknowledged the need to protect free speech in the territory.
“It is important that whilst protecting against unlawful communication, there is also the need to always wear a balancing hat with the right to the freedom of expression,” Mr. Fahie said. The premier concluded his remarks with a promise to “never do anything to silence the media.”
When the governor announced his assent to the bill on Feb.12, he said he had recommended that acting Director of Public Prosecutions Tiffany Scatliffe-Esprit consider drafting guidelines to “help ensure that the offences created under the [law] as amended can be prosecuted fairly and effectively without compromising freedom of speech guaranteed by the Virgin Islands Constitution Order 2007, particularly protection for those commenting online and for journalistic reporting.”
The Governor’s Office declined to say what Mr. Jaspert hoped would be included in the guidelines, citing a constitutional provision that prevents the governor or anyone else from directing the DPP’s actions.
The Office of the DPP responded to Beacon queries on Friday with an unsigned response stating that the agency couldn’t share its plans for the guidelines either.
“The chambers cannot disclose the information sought as it is deemed privileged due to our instructions from [the governor],” the email explains.
Neither office responded to a question about the anticipated timeline for drafting the proposed guidelines.