Parts of Cybercrime Bill have no place in a modern liberal democracy

Dear Editor,

To reinforce and put structure to comments I have made on social media, Section 18.1 (a) of the 2016 Cybercrime Bill has no place in the laws of a modern liberal democracy.  It effectively criminalises dissent with a broad and effectively unrestricted brush.

This sort of legislation is based on the presumption that the government of a country, with all the considerable powers of the state at its beck and call, possesses the emotional and intellectual fragility of some neurotic, obsessive ex-lover with an inferiority complex, who feels automatically entitled to affection and love and respect.   And considering the capacity of the government and state apparatus to monitor the citizenry using unequal tools (ironically funded in effect by the citizenry) to effect surveillance in furtherance of enforcing this clause, we can without great effort add to our metaphor the act of stalking.

It should be considered that were it given to us to craft legislation to mediate between a person so described and the subject upon whom they would impose their penalty-based rules of perpetual admiration, logic might dictate that the protections enshrined in such legislation would weigh heavily in favour of the person liable of being accused of and punished for both disaffection and the mere attempt of it.  Yet here we are.

As to the those who would offer that subsection 18.4 mitigates spurious prosecution under subsection 18.1 (a), I argue that it does not since it simply moves the needle towards supporting (reasonable) dissent at the beginning of a clause, but then reverses it completely by the end of that clause.  For example, 18.4 (b(i)) says that “(b)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, [sic] exciting or attempting to excite hatred, contempt or disaffection.”

In plain(-ish) language, we can criticize the government all we want and call for its alteration by lawful means (in this case, practically speaking, merely elections) as long as we don’t (attempt to) excite hatred, contempt or disaffection (all subjective feelings), with no empirical measure of same outside the offence taken by said government, the presumptive complainant in any litigation under section 18.1 (a).  Briefly, our constitutionally-protected right to free speech is presented as some generously gifted exception to the law, but then (re-)circumscribed by reinforcement of the odious component of the subsection in question.

The issue of sedition based upon inciting or promoting disaffection has been a historically controversial one.  In 1922, Mohandas K Gandhi was charged in conjunction with publisher, Shankerlai Banker, who owned the magazine (a progressive medium of for public opinion at the time) Young India, for articles Gandhi had written.  The then young lawyer’s statement in response to the charges is instructive:

“Section 124 A under which I am happily charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen.  Affection cannot be manufactured or regulated by the law.  If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.  But the section under which Mr Banker and I are charged is one under which mere promotion of disaffection is a crime.”

The sedition law under which Gandhi was charged was one imposed by India’s then colonial masters, the British, the same power from whom we presumably inherited our own sedition laws and from whom we gained political independence a half century ago: it is my understanding that sedition (at least as defined by disaffection) no longer exists in British law.

There can be no great debate about this – the Cybercrime Bill 2016 should be sent back to the very same bipartisan select committee that saw it fit to approve 18.1(a) with the express purpose of having this subsection stricken (in addition to, in the medium term, any analogue in existing legislation) and any other necessary amendments made.

I would personally recommend the removal of Section 20, ‘Infringement of copyright, patents and designs and trademarks’ for three main reasons.  The first is that criminal penalties attached ($3 million and $3 years imprisonment) are excessive, considering that no conceivable act of copyright infringement is possible without the use of a “computer system” as defined in Section 2, ‘Interpretation’ of the law.  In essence, it makes no distinction between the young man downloading an electronic copy of one of my books and sharing it among his friends, and the large-scale ‘publisher’ capable of illegally printing and selling thousands of copies of the same book to – as a random, hypothetical example – a government ministry in fulfilment of a public tender for the supply of said books.  Secondly, this provision is practically unenforceable with regard to the present broadcast environment – every single broadcast entity would be liable, including the state media.  Thirdly, it is a clumsily executed abdication of the duty to reform the 1956-66 Copyright Act, the updating of which is purportedly on the government’s 2018 legislative agenda.  Section 20 is unnecessary if we are to see meaningful consultations upon and eventual tabling of an updated 2005 Copyright Bill in the short term.

In closing, the Cybercrimes Bill as presently constituted is a failure that falls squarely at the feet of an otherwise contentious bipartisan legislature.  It is up to that entity to claim responsibility and to fix it.  As for the citizens who brought this to public attention, it is our duty to be continuously vigilant in ensuring that our rights and interests are continuously respected and represented by those we put in place to govern.

Yours faithfully,

Ruel Johnson

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