Divisive Cybercrime bill passed

-gov’t cuts sedition clause but concerns remains

Basil Williams

Government yesterday used its majority to pass the contentious Cyber-crime Bill with an amendment excising a controversial sedition clause.

However, it failed to win the support of the parliamentary opposition, which said the amendment did not go far enough.

Opposition Chief Whip Gail Teixeira called on the National Assembly to amend the Cybercrime Bill by deleting the proposed Section 18, which had contained the clause, in its entirety.

In making her case for an amendment to this effect in her name, she noted that when the British Parliament decided to remove sedition in 2009, then Parliamentary Under Secretary of State in the Ministry of Justice Claire Ward stated that sedition and seditious and defamatory libel were arcane offences from a bygone era when freedom of expression wasn’t seen as the right it is today. “Freedom of speech is now seen as a touchstone of democracy and the ability of individuals to criticise the state is crucial to maintaining freedom,” Teixeira said.

Anil Nandlall

Section 18, which had been the subject of intense criticism for government, originally provided at Subsection (1) (a) that a person commits an offence of sedition, punishable by imprisonment for five years, 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 brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in Guyana.

The subsection was removed by way of an amendment brought by Attorney General Basil Williams, who noted that government amended the bill based on criticisms received.

In presenting the bill, he noted that Cabinet considered the comments on the clause and decided to delete Subsection (1) (a), which was the main cause of concern. Additionally consequential changes were made and the clause was revised by the Drafting Division of his ministry in collaboration with a free speech and media attorney.

Following the passage of the amended bill by government majority, Section 18, which previously addressed “Sedition,” now addresses “Offences against the state.”

Earlier during the debate of the bill, Minister of Public Telecommunications Cathy Hughes accused the opposition members of failing to adequately perform their duties in the select committee that had been reviewing the bill for almost two years, while Teixeira accused Williams of sneaking in the sedition clause by laying a bill different from the one which stakeholders had been invited to comment on.

Former Attorney General Anil Nandlall, who was also a member of the committee, accepted responsibility for failing to perform his duties as a member of a parliamentary committee but refused to accept any blame for the inclusion of the contentious clauses in the first place.

“We were absent for a few meetings. Justifiably, we were criticised. We accept those criticisms. As the lead person with responsibility for the legal sector on the opposition, I was accused of abdicating my responsibility. I plead guilty. What I will not accept is putting Clause 18, Clause 9 and the other objectionable clauses in this bill. That is what I will not accept responsibility for. The bill that was circulated for public consultation did not have Clause 18,” Nandlall declared. 

Williams, in turn, labelled the opposition presentations as “lame excuses,” saying that nothing was snuck in.

Apart from Section 18, a further amendment to Section 9 was tabled by Williams and passed by the House.

Section 9(1) previously read: “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.” It now prescribes that: “A person commits an offence who through authorised or unauthorised means obtains or accesses electronic data which (a) is commercially sensitive or a trade secret (b) relates to the national security of the State or (c) is stored on a computer systems and is protected against unauthorised access and intentionally and without lawful excuse or justification grants access to or givers the electronic data to another person’s whether or not he knows that the other person is authorised to receive or have access to the electronic data.”

According to both Williams and Prime Minister Moses Nagamootoo, amendments to Section 9 resulted from concerns raised by the international watchdog Reporters Without Borders.

According to Williams, the group expressed concern that the provisions could be used to penalise journalists and media for publishing information from confidential sources even if the journalists had no basis to suspect that the information was illegally obtained. He stressed that the clause has since been amended to remove the provision that may pose an obstacle to the freedom of the press, that is, the criminal aspect of receiving the electronic data.

“The type of conduct being criminalised has now been revised and is more specific while the types of electronic data to which this clause refers to have also been defined,” he told the House. 

Also deleted were two other sub-sections, which individually stated that “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” and “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.”

It still provides that a person who commits an offence under this section is liable (a) on summary conviction to a fine of three million dollars and to imprisonment for three years; or (b) on conviction on indictment to a fine of eight million dollars and to imprisonment for five years.

Meanwhile, a proposed amendment to Section 12, submitted by PPP/C MP Harry Gill, was rejected by government.

Gill’s proposed amendments asked for electronic systems critical for the Guyana Elections Commission (GECOM) to discharge its role and functions as provided for under the constitution and laws of Guyana to be included as part of the “critical infrastructure” whose disruption constitutes and offence.

Government did not share Gill’s point of view, voting instead to restrict the definition of “critical infrastructure” to any computer data, computer system, or computer network so vital to the State that the incapacity or destruction of, or interference with of such computer data, computer system, or computer network would have a debilitating impact on (a) the security, defence or international relations of the State; (b)the existence or identity of a confidential source of information relating to the enforcement of the criminal law of the State; (c) the provision of services by the Office of the Director of Public Prosecutions and the Ministry of Legal Affairs; (d) confidential educational material, such as examination materials;(e) the provision of services directly related to communications infrastructure, banking and financial services, public utilities, public transportation or essential public infrastructure such as hospitals, courts, traffic lights, bridges, airports and seaports; (f)               the protection of public safety, including systems related to essential emergency services such as police, fire brigade services, civil defence and medical services;  (g)the provision of services of the Revenue Authority established under the Revenue Authority Act; or (h)the provision of services of the Bank of Guyana.

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