MAIN AMENDMENTS TO THE CYBERCRIME BILL

The Amended Cybercrime Bill, which is being proposed to Parliament was distributed to Parliamentarians yesterday. SEARCHLIGHT obtained a copy of the amended Bill and shares below the amendments that were made to the most contentious parts of the Bill.

Clause 16 has been substantially amended and has been expanded into four clauses – 16, 17, 18 & 19.

The penalties have also been substantially reduced.{{more}}

The Bill will have its second reading in Parliament this Thursday, August 11.

CLAUSE 7

ORIGINAL VERSION

Illegal acquisition of data

7. A person who, intentionally and without lawful excuse or justification, obtains for himself or for another person, computer data which is not meant for him or the other person and which is protected against unauthorized access, commits an offence and is liable on –

(a) summary conviction to a fine of two hundred thousand dollars or to imprisonment for three years or to both;

(b) conviction on indictment to a fine of five hundred thousand dollars or to imprisonment for seven years or to both.

AMENDED VERSION

Illegal acquisition of data

7. (1) A person who, intentionally and without lawful excuse or justification, obtains for himself or for another person, computer data which is not meant for him or the other person and which is protected against unauthorized access, commits an offence and is liable –

(a) on summary conviction to a fine of one hundred thousand dollars or to imprisonment for two years or to both; or

(b) on conviction on indictment to a fine of three hundred thousand dollars or to imprisonment for five years or to both.

(2) Subsection (1) does not apply to a person who shows that in the particular circumstances the obtaining was justified in the public interest.

(3) Nothing in this section shall be construed as protecting the unauthorised access –

(a) To personal data consisting of information of a person’s physical or mental health; or

(b) To any other information the disclosure of which is prohibited by law from disclosure.

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CLAUSE 16

ORIGINAL VERSION

Harassment utilizing means of electronic communication

16. (1) A person who uses a computer system to cyberbully, intentionally or recklessly, another person commits an offence.

(2) A person who uses a computer system to disseminate any information, statement or image, knowing the same to be false, and who –

(a) damages the reputation of another person; or

(b) subjects another person to public ridicule, contempt, hatred or embarrassment,

commits an offence.

(3) A person who, intentionally or recklessly –

(a) uses a computer system to disseminate any information, statement or image; and

(b) exposes the private affairs of another person, thereby subjecting that other person to public ridicule, contempt, hatred or embarrassment,

commits an offence.

(4) A person who commits an offence under this section is liable on –

(a) summary conviction to a fine of one hundred thousand dollars or to imprisonment for two years or to both;

(b) conviction on indictment to a fine of two hundred thousand dollars or to imprisonment for five years or to both.

(5) For the purpose of this section, “cyberbully” means to use a computer system repeatedly or continuously to convey information which causes –

(a) fear, intimidation, humiliation, distress or other harm to another person; or

(b) detriment to another person’s health, emotional well-being, self-esteem or reputation.

AMENDED VERSION

Sexual harassment by electronic communication

16. (1) A person who intentionally and without lawful excuse or justification and without the consent of the depicted person, uses a computer system to distribute or transmit the sexually explicit image of the person that conveys or contains the personal identification information of the person, commits an offence.

(2) A person who commits an offence under subsection (1) is liable –

(a) on summary conviction to a fine of one hundred thousand dollars or to imprisonment for two years or to both; or

(b) on conviction on indictment to a fine of two hundred thousand dollars or to imprisonment for five years or to both.

(3) for the purposes of this section –

“sexually explicit image” in relation to a person means an image depicting –

(a) a private area of the person; or

(b) the person engaged in sexual activity or conduct.

“personal identification information” in relation to a person means a name or number that may be used alone or in conjunction with any other information to identify the person including –

(a) the name, postal or electronic mail address or telephone number of the person; or

(b) the unique biometric data, such as fingerprint, voice print, retina or iris image, or other physical representation of the person.

Cyber bullying

17. (1) A person who, intentionally or recklessly, uses a computer system repeatedly or continuously to distribute or transmit any information, statement or image –

(a) that causes a person, other than a child or vulnerable person , to feel frightened, intimidated or distressed; and

(b) that causes harm to the health or reputation of the person, commits an offence.

(2) A person who, intentionally or recklessly, uses a computer system repeatedly or continuously to distribute or transmit any information, statement or image –

(a) that causes a child or vulnerable person to feel frightened, intimidated, distressed or humiliated; or

(b) that causes other harm to the health or reputation of a child or vulnerable person, commits an offence.

(3) A person who commits an offence under subsection (1) is liable on summary conviction to a fine of one hundred thousand dollars or to imprisonment for two years or to both.

(4) A person who commits an offence under subsection (2) is liable –

(a) on summary conviction to a fine of one hundred and fifty thousand dollars or to imprisonment for three years or to both; or

(b) on conviction on indictment to a fine of two hundred and fifty thousand dollars or to imprisonment for five years or to both.

(5) For the purposes of subsection (1) and (2) to “use a computer system repeatedly or continuously to distribute or transmit any information, statement or image” includes the use of the computer system on any one occasion that results in the repeated or continued distribution or transmission of the information, statement or image.

(6) For the purposes of this section –

“vulnerable person “means a person other than a child who is suffering from –

(a) an impairment or abnormality of the mind; or

(b) an enduring physical impairment.

Harassment by electronic communication

18 (1) A persons who intentionally or recklessly –

(a) uses a computer system to send to another person any information, statement or image that is obscene, constitutes a threat or is menacing in character; and

(b) thereby causes that person or any other person to feel intimidated, harassed or threatened, commits an offence.

(2) A person who commits an offence under subsection (1) is liable on summary conviction to a fine of twenty-five thousand dollars or to imprisonment for one year or to both.

(3) For the avoidance of doubt, nothing in this section or section 17 shall be construed as restricting the right of freedom of expression under the law upon any subject.

Libel by electronic communication

19. (1) A person who uses a computer system to unlawfully publish any defamatory matter concerning another person, with intent to defame that other person, commits an offence.

(2) A person who commits an offence under subsection (1) is liable on conviction to a fine of fifty thousand dollars or to imprisonment for two years or to both.

(3) Sections 275 to 281 of the Criminal Code shall apply to an offence under this section.

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THIS CLAUSE HAS BEEN REMOVED COMPLETELY

Interception of content data

23. A Judge, if satisfied on an ex parte application by a police officer that there is reasonable ground to believe that the content of electronic communications is reasonably required for the purpose of a criminal investigation or criminal proceedings, may –

(a) order an internet service provider in Saint Vincent and the Grenadines through application of technical means to collect or record or to permit or assist competent authorities with the collection or recording of content data associated with specified communications transmitted by means of a computer system; or

(b) authorize a police officer to collect or record content data through application of technical means.

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ORIGINAL VERSION

Assistance

34. (1) A person who has knowledge about the functioning of the computer system or measures applied to protect the computer data stored in the computer system that is the subject of a search warrant shall, if requested by the police officer authorized to undertake the search, assist the police officer by –

(a) providing information that facilitates the search for and seizure of the apparatus and computer data sought;

(b) accessing and using an apparatus to search computer data which is stored in, or lawfully accessible from or available to, that system;

(c) obtaining and copying the computer data; and

(d) obtaining an intelligible output from an apparatus in a format that is admissible for the purpose of legal proceedings.

(2) A person who fails to comply with this section commits an offence and is liable, on conviction, to a fine of one hundred thousand dollars or imprisonment for two years or to both.

AMENDED VERSION

Assistance

36. (1) A person who is in possession or control of an apparatus or computer data that is the subject of a search warrant under section 35 –

(a) shall, if required by the police officer authorised to undertake the search, assist by providing information that facilitates the search for and seizure of the apparatus and computer data sought; or

(b) shall permit, and assist if required, the police officer authorised to undertake the search –

(i) to access and use an apparatus to search any computer data available to, or in, the apparatus;

(ii) to obtain and copy the computer data; or

(iii) to obtain an intelligible output from an apparatus in a format that is admissible for the purpose of legal proceedings.

(2) A person who, without lawful excuse or justification, contravenes subsection (1) commits an offence and is liable on summary conviction to a fine of one hundred thousand dollars or to imprisonment for two years or to both.

(3) For the avoidance of doubt, it is a lawful excuse or justification for a person to contravene subsection (1) on the ground that if he complies with subsection (1) he might incriminate himself or expose himself to a penalty.

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THE EXTRADITABLE OFFENCES HAVE NOW BEEN LIMITED TO THESE LISTED BELOW

ORIGINAL VERSION

Extraditable offences;

Cap. 175

37. An offence under Part II is an extraditable offence for which extradition may be granted or obtained under the Fugitive Offenders Act.

AMENDED VERSION

Extraditable Offences

39. (1) the following offences are extraditable offences for which extradition may be granted or obtained under the Fugitive Offenders Act –

(a) an offence under section 9;

(b) an offence under section 11;

(c) an offence under section 12;

(d) an offence under section 13; and

(e) an offence under section 15

(2) The offences referred to in subsection (1) shall be deemed to be included in the description of relevant offences in the First Schedule to the Fugitive Offenders Act.

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THE ACT IS NOW SUBJECT TO REVIEW AFTER THREE YEARS

Review of Act

47. Not later than three years after the commencement of this Act, a Select Committee of the House of Assembly shall review the provisions of this Act.