Sedition and cybercrime

Considering the bewildering array of criminal behaviour in cyberspace – in particular the purveying of child pornography and human trafficking –the advancing of a draft law on these matters and the compromising of computer systems is welcome. However, considering the urgency of the matters at stake one can preliminarily lament the disconcerting sloth in moving the draft legislation along.

The Cybercrime Bill 2016 was first published on August 4th 2016 and sent to a Select Committee of Parliament on that same day after its first  reading, The Committee held its final meeting on April 8th, 2018 and its report was circulated at last Thursday’s sitting, April 26, 2018.  The refined draft bill will now be scheduled for second reading and hopefully vigorous debate. Clearly there is need for Parliament and its administration to efficiently expedite the people’s business.

While the expectation had been that the bill would focus primarily on the protection of members of the public from the real dangers lurking in cyberspace, it seems that the government is also keen to avail itself of shelter under the umbrella of offences and penalties enshrined in the draft law. Unsurprisingly, given their conjoined and passionate interest in limiting criticisms of sitting governments and since both sides of the House have had long tenures at the head of the administration of this country, the governing APNU+AFC and the opposition PPP/C have found common cause in giving their blessings to a bill with an offensive clause that seeks to curtail free speech in cyberspace under the  archaic offence of sedition.

Clause 18 (1) of the bill says: “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, 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 the Government established by law in Guyana”.

Clause 18 (4) quaintly says disaffection “includes disloyalty and all feelings of enmity” and then sets about defining what doesn’t constitute an offence under Clause 18(1) including “comments expressing disapprobation of the measures 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” and “comments that point out errors or defects in the Government, Constitution or Parliament” but the major damage has been done by the clear intent to circumscribe free speech.

There are also other subsections dealing with matters such as treason but it is the sweeping scale of Clause 18 (1) that immediately raises questions about a clash with the fundamental right of free speech as enshrined in the constitution.

The government can only be seeking solace in such legislative provisions to attenuate free speech rights in a medium that has become the lifeblood of democratic expression, discourse, debate and disquisition in many polities. As broadly expressed as it has been, Clause 18(1) can be used to target any type of free speech and comes with a five-year prison sentence.

As an offence, sedition’s lineage in the reign of absolute monarchies is essentially now a political offensive to infringe upon vigorous if oftentimes course and tasteless arguments. The fact that both sides of the House agree with it is an exquisite statement on the quality of the country’s political culture. One expects that Clause 18 (1) won’t see the light of day after the second reading of the bill and that MPs with a conscience who are committed to the principle of free speech will argue fearlessly against it no matter where they sit in the House.

That seditious libel and criminal defamation remain on the statute books here exposes both sides of the House to justifiable criticism that they are unwilling to permit the media, in particular, the latitude to hold them fully accountable to the people.

Sedition and a number of prominent offences on the law books are relics of the colonial heritage of the region which has long seen the mother country rid herself of the shackles of these vestigial nuisances.

In January of 2010 in the UK,  Section 73 of the Coroners and Justice 2009 Act swept away the old common law offences of sedition and seditious libel among others. Speaking at the time, the UK’s Justice Minister Claire Ward said tellingly: “Sedition and seditious and defamatory libel are arcane offences – from a bygone era where freedom of expression wasn’t seen as the right it is today.

“Freedom of speech is now seen as the touchstone of democracy, and the ability of individuals to criticize the state is crucial to maintaining freedom”.

Therein lies the grave error of Clause 18 (1), there should be no fetter or attempt at such on the right of individuals to hold their government accountable via criticism.

Ward also said “The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom.

“Abolishing these offences will allow the UK to take a lead in challenging similar laws in other countries, where they are used to suppress free speech.”

A number of Commonwealth countries, notably India and Malaysia, continue to be theatres of major opposition to sedition laws.  This jurisdiction should not be offering harbour to any form of this archaic offence.

Far earlier than the UK abolition of the law, Lord Denning in 1986 expressed the opinion that the offence of seditious libel was obsolete:

“The offence of seditious libel is now obsolescent. It used to be defined as words intended to stir up violence, that is, disorder, by promoting feelings, of ill-will or hostility between different classes of His Majesty’s subjects. But this definition was found to be too wide. It would restrict too much the full and free discussion of public affairs…So it has fallen into disuse for nearly 150 years”.

In 2018, it remains on the law books here and is being given a makeover for cyberspace. It must not stand.

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