An analysis of the proposed Cybercrime Bill for Guyana

Part I

The proposed Cybercrime Bill addresses several important issues inclusive of cyberbullying, child pornography, sexual grooming and luring children into sexual activity, revenge pornography and cyber blackmail and copyright infringements all using computer systems (see definition subsequently) among other important matters. TIGI believes that these are necessary inclusions in the bill.

The proposed bill makes activities such as posting and sharing videos of minors engaged in sexual activities, photographs and videos of adults engaged in sex, without their consent or of former partners in compromising positions, all of which seem to have recently become commonplace in society, criminal offences.

Infringement of copyright in general is another inclusion in the bill that stands to impact on popular practice in the country. Activities such as ripping compact discs and digital versatile discs for the purpose of reproduction and distribution, unauthorised use and reproduction of photographs and other artistic work etc. are also criminalised in the bill. It is important to note that all infringements in the Cybercrime Bill involve a prison term which with only three exceptions is at least three years in duration.  Though the bill addresses several important matters involving the use of computer systems (see definition subsequently), it also includes provisions that encroach on freedom of expression, seek to legislate reverence for government officials, shut down whistleblowing in cases of corruption. This is not an exhaustive list of problematic issues in the bill, however, we confine this article to these issues and will address the others in a subsequent instalment of this column.

Definitions

Section I of the proposed Cybercrime Bill provides definitions for several key terms. The definitions of three terms are especially problematic. These are the definitions of child, computer system and computer data.

Child. The bill defines a child as a person under 18 years old. Whereas this definition corresponds to the legal age by which we determine who is an adult and who can vote in elections, it proves to be problematic when applied indiscriminately to issues such as sex with and sexual grooming of minors where the relevant age of consent is 16 years. There will be clash between the provisions of the bill and the established age of consent in relevant cases that involve use of a computer system.

Computer System. The definition of computer system is of utmost importance. The term computer system is used throughout the bill to identify the equipment and or devices employed to transmit, manipulate or in general utilise computer data. The definition includes several devices that one would expect to be included but it also alludes to “smart phone” (no other type of phone mentioned) and “smart television”. The use of “smart” to describe such devices is quite subjective and undeserving of use in the law. As an example, Mr. Christopher Clarke in his 2017 undergraduate research thesis submitted to the Department of Computer Science at the University of Guyana, questions Samsung’s classification of its refrigerator as a “smart refrigerator”. The “smart” label is about marketing and it would be rather naïve of Guyana to enshrine such subjectivity in its law. This label might well be a prominent feature in cases that are tried as cybercrimes.

Computer Data. Among the items included in the definition of computer data are representation of facts and representation of concepts. This seeks to the broaden the scope beyond explicitly written statements of facts to include other representations. It would seem, for example, that cartoonists and other artists are likely to have their work scrutinised especially under the sedition clause (addressed subsequently). Consistent with this and even more nebulous, is the inclusion of representations of concepts. What are concepts and how can they be represented? Overall, this definition appears to include expressions of opinions and ideologies.

Shutting down whistleblowing

Article 9 of the bill shuts down whistleblowers by targeting both the whistleblower and those to whom they might disclose information. It makes no allowances for whistleblowing when there is corruption or malfeasance. It does this in three parts:

9. (1) A person who is not authorised to receive or have access to computer data commits an offence if he intentionally and without lawful excuse or justification receives or gains access to computer data from another person, whether or not he knows that the other person obtained the computer data through authorised or unauthorised means.

(2) A person who is authorised to receive or have access to computer data commits an offence if that person intentionally and without lawful excuse or justification receives or gains access to computer data from another person knowing that the other person has obtained the computer data through unauthorised means.

(3) A person commits an offence if the person obtains computer data through authorised means and intentionally and without lawful excuse or justification, gives that computer data to another person who he knows is not authorised to receive or have access to the computer data.

Article 9 seeks to establish an impenetrable ring around computer data by making it a criminal offence for people to send or receive information apart from when both parties are positively authorised to access it. In the absence of robust whistleblower protection, one will be hard-pressed to find a legal justification for using computers to expose corruption.

Subsection (1) makes it so that media houses and civil society organisations, for example, will have committed a crime by receiving information from a whistleblower whether or not that person is authorised to access the data provided. This is essentially the end of leaked information because both the recipient and the sender would have committed a crime that is punishable by incarceration and a fine of at least $3million. Given the reach of the proposed Cybercrime bill, these provisions will conflict with laws in other countries which will likely negate enforcement.

We note for emphasis that intellectual property is dealt with separately in the bill so that protection of such data is not the target of article 9. In addition, this article is not specific to security matters or to ongoing investigations.

Assault on Freedom of Expression

Article 18 (1) (a) of the bill states that:

“A person commits an offence of sedition if the person, whether in or out of Guyana, intentionally publishes, transmits or circulates by use of a computer system or any other means, a statement or words, either spoken or written, a text, video, image, sign, visible representation, or other thing, that –

(a)   brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards Government established by law in Guyana; …”

In (4) (a) of the same article, it is clarified that ““disaffection” includes disloyalty and all feelings of enmity”.

Essentially therefore, if someone uses electronic means to make statements or to transmit any other kind of data that arouses feelings of disloyalty towards the government, he/she has committed a crime and can be imprisoned for five years. Sedition as defined in the bill is quite subjective and is likely to be abused by governments. Even if one is able to overlook the subjective nature of the offence, one is confronted by the reality that Guyana will be unable to claim that it is a modern democracy.

Yet, some in government have claimed that the bill does not restrict freedom of expression. This is usually done with allusion to article 18. (4) (b) which sets out what is not considered sedition. To test this claim in a concrete way, we find it necessary to be provocative and say something that we would neither otherwise say nor encourage anyone else to say. Suppose for a moment that someone wants to say that “the president is an idiot”. The TIGI President has tested this statement with a few individuals and what essentially emerged is that whereas many believed the statement to be distasteful, none believed that it is one for which anyone should be prosecuted and incarcerated. One can also imagine a cartoonist characterising a public official as, for example, some animal in order to make a point.

Recall that the definition of computer data encompasses not only statements made as though they are facts but also representations of facts and representations of concepts (and we believe opinions) using computing devices (e.g. mobile phone or tablet). Article 18. (1) would indicate, depending on the day, that a person who has made a provocative statement about the president has committed sedition. The only hope for avoiding prosecution then lies in article 18. (4) (b) which indicates that

“The following do not constitute an offence under subsection (1) –

(i)    comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without, exciting or attempting to excite hatred, contempt or disaffection;

(ii) comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection;

(iii)  comments that the President, Prime Minister or any Minister of the Government or the Government has been misled or mistaken in their measures;

(iv)  comments that point out errors or defects in the Government, Constitution or Parliament;

(v)  comments that procure, by lawful means, the alteration of any matter of government; and

(vi)   comments that point out, for the purpose of removal, matters that produce or tend to produce feelings of hostility and ill-will between different classes of persons in Guyana.”

Clearly, there is no protection for a person who would have for example posted on their Facebook page a provocative statement about the president. How then, can one soberly argue that article 18 does not restrict freedom of expression? The exceptions outlined in subsection (4) seek to provide a restrictive structure within which to criticise the government and it is clear that one can criticise the advice given to government officials and the measures such officials may have taken, but not the individuals themselves. The sedition clause is an unbridled attempt to legislate reverence for government officials.

Our experience in Guyana is that if something is available, it will be used whenever it is convenient. Mr. Mark Benschop recently reminded us that he and others were charged with sedition (See Stabroek News, May 1, 2018) under the previous administration which stands opposed to the sedition clause in the Cybercrime bill. Furthermore, if we look at how laws have been interpreted recently, especially that relating to selection of the GECOM Chair, one would be wise to ignore expressions of good intentions and require that the law closes the possibilities for silencing the people. TIGI therefore reaffirms its call for the sedition clause in the bill to be scrapped.

Conclusion

Shutting down whistleblowing which would otherwise provide concrete information about corrupt activities and simultaneously silencing the people with an ever-present threat of sedition will create a society in which people are afraid to criticise the government and one in which corruption is concealed by legal provisions. The proposed Cybercrime Bill therefore appears as an ingenious way of ensuring impunity and rolling back centuries of political development.

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