DRP SVG condemns, urges removal of clause 16 of Cybercrime Bill 2016

Editor: As leader of the Democratic Republican Party of St Vincent and the Grenadines (SVG), I, Anesia Baptiste, condemn and urge immediate removal of clause 16 of the Cybercrime Bill 2016 which was introduced into SVG’s House of Parliament in June 2016.

The Bill, which is currently before a select committee of the House, is expected to be debated in Parliament at its next sitting on August 4 and I believe it will pass if select committee work is completed by that time.

I am an invitee to select committee meetings on the Bill, have highlighted my concerns on national radio programmes and repeatedly at select committee meetings about various aspects of the Bill, particularly with clause 16 as currently constituted and even after proposed changes at the select committee stage.

With my experience as a former senator and the holder of a Bachelor of Laws degree with honours from the University of London, I pointed out that clause 16 of the Bill has two main features which are dangerous to God-given and constitutionally guaranteed human freedoms of expression, speech, the press and information. Clause 16 creates an offence “Harassment utilizing electronic means of communication” and this offence basically criminalizes electronic criminal libel and communication, which constitutes cyberbullying, according to its definition in the Bill.

The problems here are:

1. Criminal libel is an antiquated and draconian law, which uses the disproportionate punishment of imprisonment for publishing wrong speech (speech that is false). While criminal libel has been on our criminal code for many years, it’s true, it has fallen into disuse because such laws have a chilling effect on free speech and have been used by tyrants in old times to punish political opponents and dissenters. As a result, international press freedom agencies such as the International Press Institute (IPI), Reporters without Borders (RSF), as well as legal bodies such as the Parliamentary Assembly of the Council of Europe (Resolution 1577 (2007) “Towards Decriminalisation of defamation) and others have long encouraged nation states throughout Europe and the Caribbean to decriminalise libel in the interest of the protection of the people’s freedom of speech. Libel or defamation is proportionately addressed in a civil and not a criminal court, since to criminalise a man’s speech, giving a man a criminal record, sending a man to jail for words puts the right to free speech itself in jeopardy. It sends a message of fear and self-censorship among journalists and regular citizens, which is destructive to society’s need to hold government accountable. And no law proposing to create a just limitation on free speech must have the effect of destroying the freedom of speech itself. Therefore, criminal libel laws are simply not justifiable, reasonable or even necessary in modern societies which practise democratic methods. Grenada became the first Caribbean country to take the forward move in 2012, with Jamaica and Antigua and Barbuda
following subsequently. Trinidad and Tobago decriminalised it partially in 2014. However, in some of these countries, cybercrime laws are a threat to the progressive move of decriminalising libel, as in our case today. Meanwhile, the UK, from whom we inherited criminal libel on our criminal code, has since decriminalised it in 2009 because of its threat to free speech and free press. I call upon our Government to repeal the criminal libel provision on our books and to refrain from passing electronic criminal libel in the Cybercrime Bill 2016.

2. Cyberbullying, as defined in our Bill, will criminalise the truth published by anyone and criminalise the youth/children for speech published over cyberspace, which, in either case, hurts another. This is seen in the definition of cyberbullying drafted in the Bill. Intentional or Reckless Cyberbullying is done if you publish information (including images, statements etc) using a computer system which causes a person “fear, intimidation, and / or causes “detriment to health, self-esteem etc.” Not only are these words vague, subjective and lacking legal certainty and therefore not meeting the standard requirement of properly drafted law, but their broadness also means that the section can give rise to abuse by prosecuting and judicial authorities and the very TRUTH can be criminalised, just because someone claims that its publishing via a computer system “causes” them to FEEL any of the above. For example, a Christian preacher publicly rebuking immorality in the public life of a politician in society, using cyberspace for his preaching or even radio programming that is broadcast in cyberspace. Think of John the Baptist and King Herod in the Gospel account. Note the information could simply be the truth. If passed into law, not only can persons be criminalised with heavy fines of up to two hundred thousand Eastern Caribbean dollars (EC$200,000) and/or a jail sentence of maximum five years under clause 16, but the decision to convict will be left up to the arbitrary feelings of a magistrate or judge, in the absence of legal clarity on the terms which define the offence. Even if the matter never reaches the court, the police and prosecution, through whom complaints will be made, can be flooded with time wasting, nonsensical claims, which they will arbitrarily assess because of the lack of clarity in the law. Children use cyberspace also and they too may use it to bully each other, but is bullying criminal if the words do not constitute credible threat of violence to another’s person and or property? It should not be! Even the truth published repeatedly may be seen as bullying by some. While it is unpleasant to be harassed and bullied, the solution is not to criminalise this behaviour, but to encourage social interventions among the children and youth, using the school environment and interventions with parents in counselling and other measures to teach responsible use of cyberspace, strengthen tolerance and other civil reactions to bullying. Otherwise, we will see children criminalised under this Bill.

Clause 16’s criminalisation of cyberbullying will legalise THIN-SKINNEDNESS and this will breed more thin-skinnedness and discord in the population. People who would usually have overlooked and ignored hurtful words will now be encouraged to harbour them in their minds and rush to engage the police and the courts for revenge. A thin-skinned society, rather than a mature one, will result, breeding a people who are intolerant, contentious and full of confusion making, over words that are not credibly criminal, published on Twitter, shared on Facebook, Whatsapp etc.

I am horrified at the rationale presented for limiting free speech by the tenets of this clause and the discussion at select committee:

a) the lack of interest in ensuring drafting has legal certainty, preferring instead to leave the matter up to “evidence in court”,

b) the insanity in drafting, emphasising what seems like the need to have revenge and carry out vendetta, seemingly ready to hunt down those who have wronged you on Facebook or on radio, for example and

c) the absolute emphasis on ensuring the state can prosecute, rather than ensuring that the law is used as a shield to protect the rights and freedoms of the people, only using it proportionately as a sword against credible wrongs.

Elected and appointed parliamentarians must understand that people do not put them into office to violate their rights and freedoms with heavy-handedness, but to protect them is their sacred duty. Not to protect their interest with a political leader, but to protect the inalienable rights and freedoms of the people is their mandate. For if you sit complicit in the making of bad laws against the people’s God-given rights, you shall have to answer to the great legislator of the universe – GOD. In addition, you do not sit to make law to satisfy the hurt feelings of your family members who are thin-skinned, for we live in a free SVG, not an oligarchy!

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Anesia Baptiste